England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/04277/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th September 2008

Lord Justice Sedley:

1. This case concerns a Sri Lankan woman born in August 1983 who claimed asylum upon her arrival in the United Kingdom in March 2007 but was refused.
2. Her claim throughout has been that she has a well founded fear of persecution at the hands of the Sri Lankan authorities because of her connections with the LTTE, the so called Tamil Tigers. She is a Tamil, a Sinhalese speaker, who with her family was approached by the LTTE in about 2002 in order to pressure them to lend the Tamil Tigers assistance. She did so on two occasions as an interpreter in the course of shopping expeditions but the family then moved. In August 2006 however she was arrested at the home of family friends in Chilaw and was tortured and detained at the local police station. The following month, her case is that she secured release because of payment of a bribe and a month after that left Sri Lanka for India before travelling in 2007 to the United Kingdom.
3. One of the reasons why she was under suspicion and, she says, now at risk is that her brother had been an intelligence operative for the LTTE. He had been detained for about 18 months as a suspect and having reached this country in 2002 was granted indefinite leave to remain following a successful appeal against the Home Office's refusal of asylum. An initial appeal against the refusal of asylum to the applicant failed but a reconsideration was ordered. The reconsideration came before a two judge panel, Immigration Judge Vaudin and Immigration Judge Cameron, in February 2008. They again dismissed the appeal, finding that the applicant lacked credibility and that her account of events was fabricated. A senior immigration judge refused permission to appeal on this and the procedural issues that were raised, and the application is renewed before this court.
4. The first thing I think that can be fairly said about this reconsideration determination is that, although it is a very long and thorough one, it is also a pretty hostile one. That would ordinarily have to be accepted as part of the fact-finding process; but Mr Rudd, who represents the applicant, points to one paragraph in particular which he submits is the thirteenth chime of the clock. Paragraph 120 reads as follows:

"We noted that her brother did not give evidence before us. The fact that he had been granted asylum and had been believed by an Adjudicator after he had appealed a decision by the then Secretary of State to refuse his asylum claim was relied upon in support of the proposition that he must have been a member of the LTTE. Her brother did not give evidence before us and, therefore, we were not in a position to judge his evidence for ourselves. We are not bound by findings of fact made at a previous hearing. We accept that as a matter of fact he was granted asylum in the United Kingdom, but that does not mean that we would have found his account credible. Furthermore, when we note the discrepancies between the present appellant's claim and her brother's claim, it beggar's [sic] the question had their appeals been heard together, would her brother's account have been believed and would he then have succeeded in his appeal?"

5. With the papers is a detailed note made by Mr Rudd, appended to a short witness statement which he has prepared. The witness statement says:

"2.  At the commencement of the hearing I applied to adjourn the matter for a short period, on two limbs. At the time of the appeal hearing the Appellant was 36 weeks pregnant and the matter was not called on until 1425hrs, the appellant having been present at the AIT since 0915hrs, with limited facilities and unable to leave to obtain food. I felt that she was tired and in an emotional state and the quality of her evidence would be affected as a result.

3.  Further, the Appellant's brother had previously been found by the AIT to have been a member of the LTTE and granted Indefinite Leave to Remain in the UK as a Refugee. I considered it essential to the Appellant's case to have her brother present to give evidence on the Appellant's behalf as to both her involvement with the LTTE and her family's involvement. The Appellant's brother is a fulltime student at Kingston University and had an exam sitting on the date of the hearing. Unfortunately, the Appellant's Representatives were only informed of the hearing by way of letter dated 4^th February 2008 [the hearing was on 18 February] and arrangements could not be made in time to allow the Appellant's brother to give evidence on her behalf. The second limb of my application to adjourn at the appeal hearing for a short time was based on the absolute necessity on behalf of the Appellant to have her brother present at the hearing to give evidence on her behalf."

The more or less contemporaneous note which Mr Rudd exhibits sets out much of what I have now read out in summary but continues:

"3.  IJ Vaudin, without allowing the Home Office to make representations refused the application. The HOPO had previously indicated that he would support the application. IJ Vaudin stated that pregnancy was "…not a disease but a matter of joy…". He did not consider the matter of updating the Psychiatric Report and did not consider the contents of the psychiatric report as at the time of the application it was not on the court file. It would appear that when the matter was returned for reconsideration none of the documents served for the hearing in September 2007 were on the Court file. He was not willing to allow time to bring the Appellant's brother to Court and then rather bizarrely later on in the hearing considered that he was not bound by the determination of the Adjudicator in the Brother's case and must decide matters on the basis of the evidence before him, having denied the Appellant the opportunity to call such evidence…

6.  IJ Vaudin then questioned the Appellant extensively on matters relating to the Kumars, to when the Appellant had last seen her brother, to when her family were first approached by the LTTE and why she did not mention her brother's LTTE involvement when interviewed…

8.  IJ Vaudin commented that he felt the manner of her escape to be incredible and that there were real problems reconciling why she was arrested at the Kumar's property with her LTTE contact but none of the Kumar family were arrested. He also stated that he was not bound to accept the LTTE involvement of her brother, despite it being accepted by the Tribunal previously, by the Home Office and by the NAM officer.

9.  The IJ reserved his judgment."

6. Having considered this as a desk application, I enlarged time and directed that the application be renewed in court on notice. I wrote:

"1. I am minded to give permission on the ground that the AIT had arguably no power (§120) to treat the grant of asylum to A's brother as mistakenly made. This is quite different from not allowing one claim to run piggy-back on another.

2. But in order to clear the decks, I want also to know whether it is accepted by the Home Office that the tribunal had been asked to adjourn in order to hear the brother and had refused. If this is what happened, it becomes arguable that the tribunal erred in using the absence of testimony from the brother as a further reason for disbelieving A."

7. I reserved my decision on other grounds, pointing out that there was at paragraphs 117 to 118 a measure of rejection and disbelief which might put this claim beyond retrieval. I also indicated that I would welcome any help from the Treasury Solicitors, not only about what happened at the hearing but about the apparent monopolisation, if Mr Rudd's note was correct, of the proceedings by a single member of the panel.
8. The Treasury Solicitor helpfully responded in writing with a letter indicating that the Home Office Presenting Officer's note records only that the applicant's pregnancy was the basis of the application for an adjournment. The Treasury Solicitor's letter also submits that it is normal for the Asylum and Immigration Tribunal not only to send out the decision of a two or three judge panel over the signature of one member (a practice which this court has more than once expressed its concern about) but for one member "to have led/chaired the hearing". This may be so, but when the eventual determination comes signed by the one member who it appears has also conducted the entire hearing in a strongly interventionist manner, expressing himself repeatedly in the first person singular, it may begin to appear that the decision is not that of the full panel. This however is not a discrete ground of appeal. It is one of the reasons, and I mention it as such, why the court may find that any unease it feels about the balance of the determination is increased rather than assuaged by the way that the proceedings were conducted.
9. What I do still think calls for the grant of permission to appeal is the approach of the Asylum and Immigration Tribunal to the brother's successful asylum claim. This may be on either or both of two bases: first, the refusal to adjourn in order, among other things, that the brother might be called; secondly, in his absence, casting arguably inappropriate doubt on his claim and his veracity.
10. What were even so giving me pause were, as I indicated, the damaging findings in paragraphs 117 and 118. They are lengthy and I will not read out. Are they going to defeat this appeal whatever is made of the brother's role? Possibly. But it is also arguable that both that particular passage and the determination as a whole manifest a measure of unjustifiable hostility -- and I refer here not only to paragraph 120 -- which unsettles its overall evaluation of the evidence. I say this because there is much in the history that rings true, and without further regard to the critique upon which Mr Rudd sought to embark today, but from which I stopped him, of the detail of the fact finding in paragraphs 117 to 118, which he submits is distorted.
11. If the refusal of an adjournment is going to be considered, as it is going to be by this court, it will be necessary for the court to have reliable means of deciding what actually happened before the Asylum and Immigration Tribunal. The Home Office Presenting Officer's note is not determinative, especially in the face of Mr Rudd's careful contemporaneous note. The court will want the Home Office Presenting Officer's own recollection, so far as it still exists, and that of the Asylum and Immigration Tribunal too.
12. In the event of a conflict it will, as I have pointed out and as Mr Rudd accepts, not be possible for him to conduct the appeal. He cannot be counsel and witness in the same case. I will therefore reserve the case to myself between now and the hearing of the appeal for the purpose of giving any directions that cannot be agreed for the orderly conduct of an appeal which may or may not involve a conflict of evidence. I will allocate, for the present, half a day to the hearing in the expectation -- which I stress -- that the parties will find a means of agreeing the factual basis on which the court is to proceed, but the time limit may have to be enlarged if that expectation proves wrong. It should come before a court of three judges, one of whom may be a High Court judge.

Order: Application granted