England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/06/2007

Sir Paul Kennedy:

1. This is a claimant's appeal from a decision of the Asylum and Immigration Tribunal ("AIT") which was promulgated on 6^th September 2006, permission to appeal having been given by Laws LJ on 29^th January 2007.

Background

2. The claimant was born on 4^th November 1982, so she is now 24 years of age. She is a native of Albania, and claims to have arrived in the United Kingdom on 3^rd August 2002, when she was aged 19. Four days later, on 7^th August 2002, she applied for asylum, saying that she feared ill-treatment were she to be returned to Albania because of her imputed political opinion.
3. She said that she was a supporter of the Democratic Party and the Legality Party and her father had been opposed to the ruling Communist Party, as a result of which he had been imprisoned in 1985 and not finally released until all political prisoners were released in 1990, when she would have been 8 years of age.
4. The Democratic Party was in power, and all was well until 1997, when the Socialist Party obtained power. Her father then fled to the United Kingdom and she was harassed by the authorities, who were looking for him. In July 2002 the police forced their way into her home and physically harassed and threatened to kill her, so she decided to leave Albania.

Decision Letter

5. The claim for asylum was considered by the Secretary of State, and was refused in a letter written to the claimant on 26^th February 2004. In that letter the Secretary of State referred in some detail to how democracy was evolving in Albania, and concluded that the claimant would not be in jeopardy because of her support for the Democratic Party or the Legality Party. The Secretary of State did not accept that the ruling Socialist Party would be interested in her father or in her. It was accepted that she was not alone in alleging ill-treatment by the police in Albania, but the situation was improving, bad behaviour was not tolerated, and it was not accepted that if she returned she would be persecuted.

Notice of appeal to the Adjudicator

6. The claimant then appealed against the decision of the Secretary of State. In her notice of appeal dated 15^th March 2004 she challenged the analysis of the Secretary of State, saying that the Socialists were just Communists with a different name, and that if sent back on her own she would be very vulnerable:–

"They will do the same to me they have done before but worse. If a girl like me is not clean that is the end. Especially without a home or protection."

She pointed out that her father, step-mother and half-brother "will benefit from the amnesty" which may refer to the fact that in due course they have been allowed to stay in Britain. She asserted that if returned she would be harmed from the moment of return:–

"They will rape me because that is the best way to get at me. They will get me at the airport … ."

Application for adjournment

7. The matter came before an Adjudicator (Mrs O'Garro) at Birmingham on 13^th July 2004 when the claimant was represented by a Legal Executive, Mr Thrilling of Nottingham Law Centre, and the Determination of the Adjudicator was promulgated on 27^th July 2004.
8. It is clear from the Determination that the hearing began with an application for an adjournment to obtain:–

(1) police reports of domestic violence against the claimant and her brother in the United Kingdom and;

(2) a medical report as to her mental state, the allegation being that she has been traumatised by sexual abuse and domestic violence;

which she "is now claiming was the real reason she was forced to flee Albania".

9. The Adjudicator refused the application for an adjournment, pointing out that the claimant had been legally represented at a hearing on 14^th May 2004 so she had the opportunity to gather the evidence she required. She had apparently received medical treatment for her psychiatric state from October to December 2002, but that was brought to an end by her father and her brother, and was not resumed when she became estranged from her family in December 2003, so in July 2004 she had not been receiving any form of treatment for over eighteen months.

The substantive hearing

10. The Adjudicator then heard the matters substantively, and the claimant gave oral evidence, adopting as her evidence in chief her statement dated 13^th July 2004 (the day of the hearing). In that statement she made, for the first time other than to a doctor, allegations of sexual assaults by her cousins in Albania including anal penetration and oral sex. She also alleged physical abuse by her father and her brother after her arrival in England, and only ending first in 2003 then ultimately in April 2004 when she got police help and was found sheltered accommodation.
11. As the Adjudicator noted, the July 2004 statement was very different from the answers on the Statement of Evidence form dated 23^rd February 2004 which made no mention of family abuse. There is then an extraordinary paragraph in the Adjudicator's Determination which seems to refer to some other case, and the muddle goes on because in a later paragraph the Adjudicator speaks of the appellant being returned to Colombia, but the determination does get back to dealing with the appellant's claim. The Adjudicator found that the appellant's change of story "not credible at all". If sexual abuse had been the reason for leaving Albania the appellant would have said so earlier. She claimed to be inhibited because her father believed it would hinder her prospects of marriage, but, as the Adjudicator pointed out, by February 2004 when the appellant was interviewed and completed her Statement of Evidence form she was clear of her father's influence. The appellant claimed to have disclosed the abuse to a psychiatrist in September 2002, but there was no independent evidence to support that assertion. The Adjudicator did not specifically refer to some medical notes which we have seen.
12. The Adjudicator also, in paragraph 17 of her Determination, drew attention to the appellant's answer to question 30 in the Statement of Evidence form in which the appellant complained of police threats to rape her. The answer was such as to indicate that the appellant in February 2004 was claiming to still be a virgin, and that, said the Adjudicator, "must mean that she was never raped by her male relatives in Albania as claimed". That was a mistake on the part of the Adjudicator, because the appellant in her statement of 13^th July 2004 was not alleging that in Albania she was subjected to vaginal rape. She was alleging anal rape, and oral sex. And the mistake was significant, because the Adjudicator went straight on to say "accordingly I find this element of the appellant's asylum claim (i.e. sexual abuse in Albania) to be a fabrication made up at this late stage to enhance her claim for asylum."
13. The Adjudicator then turned to consider the appellant's assertion that she would be abused if returned because of her father's past political profile. The Adjudicator considered it reasonably likely that the father was engaged in politics which brought him to the attention of the authorities, and which may have resulted in his departure from Albania in 1997, but she rejected the assertion that the Albanian authorities were still looking for him in 2002, by which time the opposition parties were part of the political scene in Albania. The Adjudicator's conclusion was that the appellant decided to leave Albania "because her family felt that she should join her parents in the UK, not because she was at risk of persecution from the Authorities". The allegation of harassment by the authorities was found to be a fabrication, and the Adjudicator found "no reasonable likelihood that the appellant would be of any interest to the Albanian authorities if she were returned to Albania".
14. Those being the Adjudicator's findings of fact it was inevitable that the appellant's claim would fail, not only under the Refugee Convention but also under Article 3 of the European Convention on Human Rights. A current need for medical treatment in the UK was not really a live issue, and the appellant's estrangement from her family in the UK made it difficult for her to sustain a claim under Article 8 so the whole claim under the European Convention also failed.

Appeal from the Adjudicator

15. Mr Thrilling, on behalf of the appellant, applied for permission to appeal. The grounds of appeal made numerous complaints about the conduct of the appeal before the Adjudicator. They complained of the refusal to grant an adjournment, and about mistaken references to Colombia. They also complained that the Adjudicator did not understand Albanian society.
16. On 19^th October 2004 the Immigration Appeal Tribunal gave permission to appeal. It was obviously troubled by the allegations concerning the conduct of the hearing, and made arrangements for that to be investigated, including a direction that Mr Thrilling should, within 28 days, provide a witness statement. He did not do so, and apparently disappeared.
17. As a result of the statutory changes the matter then came before the AIT on 25^th January 2006 for possible reconsideration. The Tribunal was troubled by the mistake of the Adjudicator in interpreting the appellant's answer to question 30 as indicating she could not have been raped in Albania as she alleged. It was not impressed by the other complaints, and granted reconsideration solely on the basis of the question 30 issue, which it found amounted to a material error of law.

AIT Hearings

18. On 24^th May 2006 the matter came before the AIT for reconsideration, and for the first time the appellant was represented by Ms Hooper, her present counsel. She sought to widen the scope of the consideration ordered on 25^th January 2006, arguing that one flawed finding in relation to credibility tainted the whole decision, but the Tribunal adhered to what had already been decided, saying that it declined to revisit the issues of imputed political opinion or private life in this country. However, the Tribunal also said that it would give a broad interpretation to the earlier ruling, and include all sexual allegations made by the appellant, the risk on return and the sufficiency of protection. The restriction in the approach is at the heart of this appeal.
19. Before the Tribunal Ms Hooper made it clear that the appellant's mental health "was not an issue" and that it was not the appellant's case that her suicide risk was such as to enable her to invoke either Article 3 or Article 8 of the European Convention.
20. The appellant then gave evidence, saying that she was homeless, worked as a barmaid to support herself and moved around. She feared a return to Albania "because she would be found by her relatives and forced to marry". Her Albanian relatives had, she said, been told by her UK family what had happened, and the honour of the family was at stake. She claimed that wherever she went in Albania she would be found, but she does not seem to have asserted that her relatives now in England would pursue her to Albania.
21. At paragraph 29 of its Determination the AIT identified the issue, saying:–

"The appellant claims that she was raped as a child by her cousin who is now in jail, having served a lengthy jail sentence over the last 10 years. She did not tell her father about this in Albania but told him about it when she came to the UK. The issue is whether this will cause her to be persecuted on return to Albania, whether there are substantial grounds for believing that there is serious risk of inhuman or degrading treatment contrary to Article 3, or that her right to life under Article 2 would be violated, or indeed her right to family life under Article 8, in Albania."

Having considered the evidence the Tribunal found that the appellant was abused by her family as a child, and that she told her father what had happened. So the Adjudicator's conclusion in relation to that issue was overturned.

22. As to what that would mean in terms of risk if the appellant were to be returned to Albania the Tribunal considered the background material, and Ms Hooper's submission that, like a victim of trafficking, the appellant would be a pariah. It was not prepared to find that this particular appellant would be unable to access sufficient protection due to cultural restraints. As the Tribunal pointed out, she had broken away from her family in England when, as she claimed, they were violent to her. She was working in bars, and had taken her complaints to the police.
23. Turning to the possibility of pursuit by relatives, the Tribunal said in paragraph 39:–

"In our view it is not likely in any case that she would be pursued by her relatives for something which occurred in her childhood, the perpetrator of which is allegedly in jail."

The background material dealt only with a localised threat from, for example, a husband. As to what was said to have happened in England, the Tribunal noted that there was no medical evidence to support the allegations of physical assault, and there had been no prosecution.

24. It therefore dismissed the appeal.

Grounds of appeal to the Court of Appeal

25. The appellant then sought permission to appeal to this Court. That was refused by the AIT on 4^th October 2006, but was granted on paper by the single Lord Justice, who considered it to be arguable that the AIT should have been prepared to consider that if the appellant was found to be credible in relation to allegations of sexual abuse that might impact upon other adverse findings as to credibility made by the Adjudicator.
26. The 28 paragraph grounds of appeal presented to the AIT dated 22^nd September 2006 were supplemented by a further 18 paragraph grounds of appeal dated 18^th October 2006 and a 2 paragraph amended grounds of appeal dated 1^st December 2006. The diffuse form of presentation is unhelpful and it is equally unhelpful to have the skeleton argument supplemented, on the day before the hearing in this Court, by a substantial supplementary skeleton argument. What was not provided until sought by the Court was the bundle containing much of the material placed before the Adjudicator and the AIT, including the appellant's answers to questions, even though the material in that bundle is expressly referred to by the Adjudicator, the AIT and in particular by the appellant's own counsel in her supplementary skeleton argument. It is the duty of those involved in appeals to ensure that the Court is provided in good time with the documents needed to determine the appeal.
27. The original grounds of appeal start with the proposition that "the Tribunal erred in law by relying on the fact that the appellant had not been persecuted in the UK as being demonstrative she would not be persecuted in Albania". As already indicated I can see nothing in the Determination to suggest that the Tribunal adopted that line of reasoning.
28. The remaining grounds of appeal can be summarised under 3 heads:–

(1) The experience of the appellant, both politically in Albania and domestically in the UK, were relevant to the risk of return, and the AIT should have accepted in full the appellant's (largely uncorroborated) complaints as to what had happened to her in the UK. In particular it should have accepted that when she revealed to her family in England the sexual abuse to which she had been subjected to in Albania she was treated violently and pursued.

(2) The AIT was wrong in refusing to consider whether the Adjudicator's error in relation to sexual abuse in Albania impacted upon other findings in relation to credibility (the ground of appeal considered by the single Lord Justice to be arguable).

(3) The AIT was wrong not to consider the reasonableness of internal relocation for this particular appellant. Ms Hooper concedes that internal relocation is not a relevant issue unless there is found to be a risk of persecution on return which relocation might avoid.

In her skeleton arguments, and in her oral submissions, Ms Hooper developed the grounds of appeal. She contended that having found an error of law affecting credibility in relation to one aspect of the appellant's case the AIT should have been prepared to look again at the case as a whole. Both the problems she claims to have faced in Albania because of her father's opposition to communism, and to a lesser extent her own politics, and the problems that she had experienced in the UK were, Ms Hooper submitted, relevant when considering what would happen to the appellant if returned.

Discussion and conclusion

29. The legislation which was in force at the time when this matter came to be considered by the AIT required the Tribunal to consider first whether the Adjudicator had made a material error of law (Asylum and Immigration Tribunal (Procedure) Rules 2005 SI 230 rule 31(2)(a)). That was what happened on 25^th January 2006. Having found an error of law the Tribunal was able to order a reconsideration, and to limit submissions or evidence to one or more specified issues (rule 31(4)(a)). The Tribunal exercised that power. It also exercised its power under paragraph 14.2 of the Asylum and Immigration (Practice) Direction to transfer the second stage of the reconsideration to a differently constituted panel of the Tribunal. That panel, which on 10^th August 2006 gave the decision from which this appeal lies, was required by rule 31(4)(b) to have regard to any direction given by the tribunal panel which ordered reconsideration and "only in very exceptional cases" can the written reasons of the original tribunal panel be departed from or varied by the tribunal which completes the reconsideration (Practice Direction paragraph 14.4 and authorities there cited). Ms Hooper submits that this is a very exceptional case in which the stage 2 tribunal should have enlarged the scope of the reconsideration because where credibility is in issue a significant error affecting the Adjudicator's approach to one aspect of the case may infect his or her approach to other aspects where credibility also has a part to play, so the stage 1 tribunal was mistaken in restricting the scope of the reconsideration, and the stage 2 tribunal should have been prepared to rectify that mistake.
30. I accept that a finding in relation to credibility which is directly relevant to one contested issue can affect an adjudicator's approach to other contested issues. That was why permission to appeal was given in this case, and why it has been necessary for me to set out in some detail how this case has evolved. Once that it done it becomes clear that there are three aspects to the claim, with very little inter-relationship.
31. On arrival in England the applicant put her claim on the basis of political persecution in Albania, as a result of her father's opposition to the regime, and to a lesser extent her own opposition. That was considered by the Secretary of State who concluded in his letter of 26^th February 2004 that "there is no reason to believe that you would be of any interest to the authorities in Albania if you were to return". That conclusion was not arrived at by disbelieving the appellant, but by pointing to recent changes in Albania, and to the length of time since the appellant's father had been an opponent of a different regime.
32. When the matter came before the Adjudicator on appeal the focus of the claim was dramatically changed. The appellant's representative wanted an adjournment to seek corroborative evidence of sexual abuse in Albania, and domestic violence in England, both of which were complained of in a witness statement which the appellant signed on that day. In support of the application for an adjournment it was said that the sexual abuse and domestic violence "was the real reason why she was forced to flee Albania". Unless that was said without instructions it did make it difficult for appellant to contend that it was fear of the Albanian authorities which was preventing her return, but the Adjudicator did not overlook that contention because it still had some place in the witness statement of 13^th July 2004. The Adjudicator did not in any way rely on her findings in relation to the allegations of sexual abuse when considering the allegations of politically motivated harassment in Albania, and, as Ms Hooper recognises, the Adjudicator accepted much of what the appellant said. In paragraph 18 of her Determination the Adjudicator said:–

"Having considered the background evidence I am prepared to accept that it is reasonably likely that the appellant's father was engaged in politics which brought him to the attention of the authorities and which may have resulted in his departure from Albania in 1997. However, I do not believe the appellant's claim that in 2002 the authorities would have come looking for her father at her grandmother's home after 5 years of going abroad."

The last sentence is not well expressed, but the meaning is clear. The authorities would not be looking for the appellant's father 5 years after he left Albania. The Adjudicator also referred to the political changes and the lack of evidence of political detainees in 2002. That is what led the Adjudicator to conclude that the claim made by the appellant that in July 2002 the police visited her grandmother's home looking for her father and harassed her was a fabrication. As to why the appellant left Albania when she did the Adjudicator said:–

"The appellant decided to leave Albania at the time because her family felt that she should join her parents in the United Kingdom and not because she was at risk of persecution by the authorities."

The Adjudicator concluded that:–

"There is no reasonable likelihood that the appellant would be of any interest to the Albanian authorities if she were returned to Albania."

But the Adjudicator did apparently accept that the appellant was fearful because she said:–

"I find the appellant's fear is a subjective fear based on the past risk of harm, which I do not find to be the case now."

I cannot see how any of that reasoning can be said to have been tainted by the view which the Adjudicator formed in relation to the appellant's complaints of sexual abuse in Albania, and in my judgment both the 1^st stage tribunal and the 2^nd stage tribunal were right not to permit the reconsideration to extend to what had been the original way in which the appellant put her case.

33. I turn therefore to Ms Hooper's complaint that the appellant should have been allowed to develop her complaints of ill treatment in England. The argument, as I have understood it, being that when the appellant arrived in England and told her father of the sexual abuse she had suffered in Albania he and her brother were so violent to her that she had to seek police help, and be placed in refuge accommodation. If she were to be returned to Albania, Ms Hooper submits, the family would follow her and abuse here there.
34. First it has to be borne in mind there has never been any allegation of sexual abuse, as opposed to violent physical abuse, by the father or the brother. The sexual abuse complained of was in Albania by two cousins, one of whom is now dead, and the other is in prison, for a different offence. According to the appellant the abuse ended in about 1997, but when she told her father about it the reaction seems to have been to want her to get married to someone of whom he approved. At least some of the tension seems to have arisen because she had a black boyfriend of whom her father disapproved. In her statement of 13^th July 2004 the appellant said at paragraph 91:–

"He threatened me not to speak with any black person at college … ."

and in the medical notes which Ms Hooper added to our bundle, and which we understand to have been before the Adjudicator, the same problem can be seen. At initial assessment in October 2002 the appellant is recorded as saying that she joined her family 3 months ago, and she reported to her doctor that her father is very unhappy about her relationship with her boyfriend to the extent that he often beat her quite severely. If that happened it was inexcusable, and it is easy to understand why the appellant sought the assistance of the police and was moved to safer accommodation, but such conduct has, so far as I can see, no bearing to the risk to the appellant if returned to Albania. Indeed in her statement the appellant says that when she was locked up by her brother:–

"He kept on threatening me they will make me go back to Albania or even kill me."

Nowhere does it seem to be suggested that her father and her brother, who had themselves been permitted to remain here, would pursue her to Albania should she return, despite Ms Hooper's assertion that that is what would happen.

35. Although the 1^st stage tribunal did impose upon the reconsideration the limitation to which I have already referred the appellant was able to tell the 2^nd stage tribunal that she feared a return to Albania:–

"Because she would be found by her relatives and forced to marry. The rape by her cousin was known about by her relatives on her father's side. The honour of the family was at stake."

That risk was addressed by the 2^nd stage tribunal in the context of the background material information which it had before it. In paragraph 38 the Tribunal said:–

"We do not find that the appellant would not be able to access a sufficiency of protection due to cultural restraints. She appears to have broken away from her family in this country due, she claims, to their violent behaviour and is working in bars in this country and has taken her complaints about her family to the police."

Then paragraph 39 begins with the sentence which I have already cited:–

"In our view it is not likely in any case that she would be pursued by her relatives for something which occurred in her childhood, the perpetrator of which is allegedly in jail."

Clearly the Tribunal addressed the possibility of the appellant being at risk in Albania from members of her family. It did not on reconsideration shut out consideration of that risk, and it reached a conclusion at which it was entitled to arrive.

36. I therefore can find no substance in any of the grounds of appeal, and that is why in my judgment it was right at the conclusion of the oral argument for this appeal to be dismissed.

Final comment

37. It is of great importance that adjudicators when preparing determinations should exercise care. In addition to the misunderstanding of the complaints of sexual abuse (being not such as to impair virginity) there were two paragraphs in this Adjudicator's Determination (paragraphs 10 and 12) which were probably lifted from another case. Fortunately they can be ignored and did not feature in the appeal before us, but word-processing errors of that kind should not occur. If they do an appellant is likely to feel that his or her case has not been properly and carefully considered, and that in turn may lead to further unnecessary and expensive proceedings.

Lawrence Collins LJ:

38. I agree.

Buxton LJ:

39. I also agree.