ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
(HIS HONOUR JUDGE STEVEN DAVIES)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE SULLIVAN
| MD ( Ivory Coast)
|- and -
Secretary of State for the Home Department
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court )
Mr Jason Beer QC ( instructed by Treasury Solicitors ) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Sullivan:
The Upper Tribunal's determination
"310. There remains the consideration of whether she is at risk of other types of harm on a return to Abidjan where she has spent the bulk of her life and where she was educated. In order to succeed, the appellant would have to establish the real likelihood that Abidjan offers her no means of survival, other than destitution or prostitution; in other words that for a lone woman without parental support and with a young child, she is unable to lead a life there that would not. As the Tribunal has said before, although not all prostitutes are destitute, the risk of prostitution represents the most degrading form of destitution and one that is alien to universal principles of human dignity. Prostitution, destitution and their associated risks of damage to health and dignity are the result of an individual's failure to find survival techniques in the community in which he or she is living.
311. She is now aged 22 and is the mother of a child born 16 December 2005, now aged 4. She has no male protector. She has no family or extended family to whom she can turn. However, she is returning to a city with which she is familiar and where, in the past, she was able to turn for help to others. The appellant spoke of limited employment prospects for non-graduates or for those poorly educated or qualified and of the relative ease with which she could find a job in the United Kingdom, particularly at the conclusion of her education here. She spoke of the difficulty of obtaining a job and how the income would be insufficient to support her and her son. We are satisfied however that the appellant attends college three or four times a week and that her son is currently attending school. There is therefore compelling evidence that the appellant is able to juggle the commitments of study and looking after a son."
"323. In terms of the appellant's private life she has of course been undergoing a course of study whilst her child has been attending nursery school. In that latter regard, we have borne in mind that the appellant's child is of an adaptable age.
324. Although we find that the appellant has understated her links with the community and emphasised her isolation we think that she has integrated herself more fully into the community than she herself would admit. We therefore find that the appellant's removal from the United Kingdom would cause an interference with her private life.
325. However, mindful of the guidance in Razgar and in the particular circumstances of the appellant and her child, we find that their removal would be a proportionate response to the legitimate public end sought by the respondent, namely the maintenance of effective immigration control."
The grounds of appeal.
"We bear in mind the decision maker should indeed avoid restricting themselves to looking at the circumstances of family life and should also take into account the significant evidence of a much wider sphere of private life "
"The appellant's child is of an adaptable age."
"231 Mr Bedford began his closing submissions to us on 9 June 2009 and in the course of those submissions he made reference to the risk of rape to a lone woman without support and continued that:
"… In such circumstances women are likely to be exposed to such risk. See for example the risk of such a person at roadblocks.
If you have got a house in a community then the likelihood is that you can avoid places of extreme danger. These are matters relevant to the issue of internal relocation – because she can still be alone and without support in Abidjan – the appellant would be at risk for example at roadblocks and would not be able to avoid that risk. This is sure to be the position right up to the USSD Report of 2009."
232. Mr Bedford returned to his submissions in relation to "roadblocks" later in his submissions when he told us as follows:
"Insofar as the Ivory Coast is concerned the fact of roadblocks is relevant to this issue because the appellant would be vulnerable to risk at such blocks given that she was homeless, unemployed and without community support. The objective evidence is that such women were at risk of being raped/sexually exploited and everyone is subject to extortion at these places, subject to the demands of bandits, police who man the roadblocks.
The objective evidence does not say where the roadblocks are".
233. We asked Mr Bedford if he appreciated the importance of what he had just stated in terms of our assessment as to whether or not the appellant could safely relocate to Abidjan. Could he for example provide us with any material that indicated the prevalence or otherwise of such roadblocks in Abidjan? Were they for instance prevalent within the city or did they only exist at the entrance and exit of the city and other such cities? The Tribunal needed to have some information as to the prevalence of the roadblocks to which Mr Bedford referred so as to determine the level of risk to women that he sought to identify. Mr Bedford said that he was unaware of any background material that provided this information."
"This answer has been prepared by the FCO Political Officer who has been at post in Cote d'Ivoire since July 2007. It is based on my own experiences and observations from living the Cote d'Ivoire and travelling extensively both within the capital Abidjan and around the country, together with information gathered during conversations with Ivoirians in the past two years.
Road blocks have significantly decreased over the period that I have been observing Cote d'Ivoire and they no longer pose a serious safety problem, although there are still instances of petty police corruption at roadblocks and checkpoints.
Firstly, it is worth pointing out that the only roadblocks now seen in Abidjan are those mounted by uniformed men, who are now instructed to wear clearly visible identity cards. The roadblocks are better described as checkpoints and take the form of random vehicle checks, which often include a check on a passenger's ID papers. Passengers whose papers are in order do not usually encounter difficulties. If a passenger does not have ID with them the police will either accept a small bribe (between 1-2,000 CFA about 70p-£1.50) or will make the person wait for hours or take them to the police station until a 'fine' is produced. The main targets though are taxi drivers who will be asked to pay a 'fine' if there is anything wrong with their papers or their vehicle.
Secondly the Forces Nouvelles and the Ivorian Army jointly agreed to reduce roadblocks and checkpoints across the country. There are now official checkpoints on the way into and out of the main cities. These are staffed by a mixture of police, military and customs officers depending on their location. They are busy areas and the officers concerned do occasionally take advantage of their position to impose impromptu 'fines' or request bribes. But I am not aware of reports of violence targeting women at these checkpoints since the implementation of the Ouagadougou Accord in 2007. Prior to the Accord there were instances of violence targeting women as set out in the Human Rights Watch Report on sexual violence in Cote d'Ivoire in August 2007.
There continues to be a degree of insecurity on rural roads with bandits holding up vehicles to rob a passenger; they usually target cash and cell phones.
FCO travel advice to British Citizens regarding Checkpoints states:
'Throughout the country, including in Abidjan, the army and police operate checkpoints, particularly after dark at city or town limits they target taxis and civilian vehicles. You should avoid confrontation with the police and security forces and co-operate politely if you need to pass through one. Police will request vehicle documents and passenger ID. The authorities have launched a crackdown on racketeering which appears to be reducing random demands for money (and making it harder for drivers to sidestep regulations). They have launched a hot line to report racketeering – TEL: 20 21 82 or 06 57 00 93. Police will frequently impose small fines. You should expect them to provide a receipt for any fine paid. If your car and papers are in order you should be able to pass through without paying although this may necessitate a long and patient wait.
Some access roads to major roads are closed from midnight to 0600. This applies to the western approach road to Abidjan, Yamoussoukro, San Pedro and all other major towns in the south. You should seek local advice about whether a 'corridor' is in operation. Checkpoints will be more rigorous at night and it is better to avoid attempting to pass through after dark'."
"...that the Political Officer's replies were compiled by an anonymous author citing anonymous sources whose identities were concealed and that there was no good reason given for withholding the identity of the author or indeed the identities of the various sources."
"In the government controlled south, members of the police, gendarmerie, army customs, and the Security Operations Command Centre continue to engage in systematic and widespread extortion, racketeering, intimidation, and even physical assaults at hundreds of roadside checkpoints. Although few residents are fully spared such abuse, the problem is particularly acute for travellers from northern ethnic groups
...The problem is most acute at checkpoints manned by these groups, where even girls are subject to evasive body searches and rape."
"But I am not aware of reports of violence targeting women at these checkpoints since the implementation of the Ouagadougou Accord in 2007. Prior to the Accord there were instances of violence targeting women as set out in the Human Rights Watch Report on sexual violence in August 2007 "
"The Political Officer did not attend before us. Mr Bedford accepted that it might not be reasonable for the officer to come to the United Kingdom but he maintained that the Officer's absence went to the weight to be attached to the material. Miss Kiss submitted that to ignore the evidence of the Political Officer would be to deprive the Tribunal of a proper objective assessment of the situation in the Ivory Coast."
"Mr Mackenzie challenged the weight that should be given to BHC or like information if it is not sourced in a similar manner to that expected from expert witnesses and other reporting authorities. Whilst this on the face of it has some obvious validity, we consider that the advice and information provided in such letters must be given significant weight as it is compiled by professional diplomats we consider are skilled and trained in the observation and acquisition of knowledge in the countries where they are based. Unless there are significant reasons why such evidence is to be treated at biased or unreliable, as appears to be the case with some of Dr Smith's evidence, we do not consider that omissions from sources should of necessity negate the value of such reports. Often they may arise from sources that cannot be disclosed and also often they will be well informed opinion based on lengthy experience and observation by the diplomatic post. It should also be noted that these are reports from a permanent diplomatic post and thus must be compared with a temporary or occasional procedure of a researcher. Their opinion should be given equal value to that of a well-informed, balanced country expert who provides sources and evidence of his or her expertise. Such BHC/diplomatic post reports or information, in the interests of balanced determinations, should therefore, in our view, be encouraged as much as the information coming from expert witnesses, with the objective of obtaining the highest quality of country guidance determinations".
"242. We thus attach weight to the letters provided by the Political Officer at post in the British Embassy in Abidjan, for like reason. Fact finding mission reports often contain information where the identity of the source was often not disclosed and this appeared to raise no difficulty. It is in the nature of country information that the Tribunal has to take into account information sourced in a variety of ways. The Tribunal is entitled to attach weight to the fact that a British Embassy has vouchsafed that one of its staff has furnished information in good faith. (See also for example, BK (Failed asylum seekers) DRC CG  UKAIT 00098). As part of its consideration, the provenance of the information has to be considered. In the end, however, it is a matter of judgment as to the weight that should be attached to the material.
243. We do not accept Mr Bedford's invitation to select only those parts of the FCO's evidence that are consistent with the evidence of Ms Monekosso. That would not advance the evidence and would emasculate its effect to an extent that would not provide us with material that might assist us.
244. We can appreciate the FCO's position that the authority in their letters, lies in the fact that they were issued from the British Embassy in Abidjan rather than the personal credentials of the individual who provided it. As Mr Jones, the Deputy Director of Migration, pointed out in his letter to us of 12 January 2009, such letters were regularly provided by posts abroad to the UKBA and often had input from senior/legal staff as well as the actual signatory. If embassy staff were to be routinely required to give evidence in cases where those letters were used in evidence, there would be considerable practical and resource implications that would likely impact on the ability to provide this service."
"199. In this connection, the Court recalls the principles recently set out in Saadi v. Italy, cited above, §§ 128-133, that in assessing conditions in the proposed receiving country, the Court will take as its basis all the material placed before it or, if necessary material obtained proprio motu. It will do so, particularly when the applicant – or a third party within the meaning of the Article 36 of the Convention – provides reasoned grounds which cast doubt on the accuracy of the information relied on by the respondent Government. The Court must be satisfied that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see Salah Sheekh, cited above, § 136; Garabayev v. Russia, no. 38411/02, § 74, 7 June 2007, ECHR 2007-... (extracts)). As regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection organisations such as Amnesty International, or governmental sources, including the US State Department (see Saadi v. Italy, cited above, § 131).
120. In assessing such material, consideration must be given to its source, in particular its independence, reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations (see Saadi v. Italy, cited above, § 143).
121. The Court also recognises that consideration must be given to the presence and reporting capacities of the author of the material in the country in question. In this respect, the Court observes that States (whether the respondent State in a particular case or any other Contracting or non-Contracting State), through their diplomatic missions and their ability to gather information, will often be able to provide material which may be highly relevant to the Court's assessment of the case before it. It finds that same consideration must apply, a fortiori, in respect of agencies of the United Nations, particularly given their direct access to the authorities of the country of destination as well as their ability to carry out on-site inspections and assessments in a manner which States and non-governmental organisations may not be able to do.
122. While the Court accepts that many reports are, by their very nature, general assessments, greater importance must necessarily be attached to reports which consider the human rights situation in the country of destination and directly address the grounds for the alleged real risk of ill-treatment in the case before the Court."
"5. We shall have cause throughout this decision to refer to NA. The judgment of the ECtHR in this case is a milestone in two different respects. First, while the Court has quite often undertaken detailed assessment of country conditions in asylum-related cases invoking Article 3, it had never before done that by reference to country guidance criteria as set out by a domestic court or tribunal, in this instance the UK AIT. At para 129 it stated that when considering the individual risk to returnees, it was "in principle legitimate, to carry out that assessment on the basis of the list of 'risk factors'" as identified by the AIT in LP. By virtue of the disagreement between the parties in NA as to the relative value of particular sources, the December 2006 UNHCR Position paper in particular, the Court also felt it necessary to articulate in greater detail than previously its view of the relevant criteria that decision makers should apply to Country of Origin Information (COI). In the latter respect, it seems to us that, at least within the context of Article 3 jurisprudence, judges should now be assessing COI by the standards set out by the Court at paras 132-135 of NA (which can be summarised as accuracy, independence, reliability, objectivity, reputation, adequacy of methodology, consistency and corroboration). Indeed, within the closely related context of asylum and humanitarian protection claims, very much the same standards have now become, by virtue of EU legislation, legal standards: see the Refugee Qualification Directive (2004/83/EC), Article 4(1), 4(3)(a), 4(5),4(5)(a) and 4(5)(c) and the Procedures Directive (2005)85/EC), Article 8(2)(a)and (b) and 8(3).
6. Secondly, it is clear that the court's endorsement of the validity of a system of country guidance such as is applied in the UK was not unconditional. It was given only because the Court was satisfied that the UK AIT had conducted a careful and comprehensive assessment weighing different sources according to their objective merit. The Court also fully recognised that country guidance is not inflexible; it must be applied by reference to new evidence as it emerges; otherwise it would fall foul of the principle of ex nunc assessment of risk. Our country guidance system can only expect to have authority domestically and command respect abroad, therefore, if it maintains these standards.
7. The emphasis we place on assessment based on objective merit prompts us to make one further comment. It is still widespread practice for practitioners and judges to refer to "objective country evidence" when all they mean is background country evidence. In our view, to refer to such evidence as "objective" obscures the need for the decision-maker to subject such evidence to scrutiny to see if it conforms to the COI standards just noted. This practice appears to have had its origin in a distinction between evidence relating to an individual applicant (so-called "subjective evidence") and evidence about country conditions (so-called"objective evidence"), but as our subsequent deliberations on the appellant's case illustrate (see below paras 153-9), even this distinction can cause confusion when there is an issue about whether an appellant's subjective fears have an objective foundation. We hope the above practice will cease."
"In view of certain criticisms made by Mr Chelvan of the BHC, Colombo evidence in this case, we need to make a specific comment on it. In LP the Tribunal had to consider five letters from the BHC going back 18 months. Agreeing with Buxton LJ in AH, IG & NM (Sudan)  EWCA Civ 297 that it was appropriate for the Secretary of State to seek to adduce evidence from diplomatic and consular channels in country guidance cases, the Tribunal considered that the BHC, Colombo letters should be given equal value to that of a well-informed, balanced country expert who provided sources and evidence of his or her expertise: see para 205. It is true that in NA the Court did not accept some aspects of the BHC, Colombo evidence relating to the use of computer technology by the authorities at Colombo airport (see para 136); however, at para 121 they echoed the Tribunal's general view in LP, noting that "through their diplomatic missions and their ability to gather information, [States] will often be able to provide material which may be highly relevant to the Court's assessment of the case before it" (para 121); and elsewhere other aspects of the BHC evidence were accepted. We consider that when assessing the more recent BHC, Colombo letters produced to us we should adopt the same approach: they are a source to which we attach value but which have to be considered on their merits."
"The advice and information provided in such letters must be given significant weight as it is compiled by professional diplomats."
"Their opinion should be given equal value to that in the well informed balanced country expert who provide sources and evidence and his or her expertise … " [emphasis added ]
"In the end, however, it is a matter of judgment as to the weight that should be attached to the material."
Understandably the tribunal said that it was necessary to consider the letter as a whole and declined to allow Mr Bedford to cherry-pick particular points that were made in the letter.
Lord Justice Toulson:
Lord Justice Pill :
"We thus attach weight to the letters provided by the political officer at post in the British Embassy in Abidjan, for like reason."
"We consider that the advice and information provided in such letters must be given significant weight as it is compiled by professional diplomats we consider are skilled and trained in the observation and acquisition of knowledge in the countries where they are based." (emphasis added)
Later in the same paragraph:
"Their opinion should be given equal value to that of a well informed, balanced country expert who provides sources and evidence of his or her expertise. " (emphasis added)
"In the end, however, it is a matter of judgment as to the weight that should be attached to the material "
The tribunal took a similar view in the later case of TK v The Secretary of State  UKAIT 0049 also cited by Sullivan LJ. In that case the tribunal stated at the end of paragraph 70 in relation to the letter supplied by the High Commission:
"They are a source to which we attach value but which have to be considered on their merits."
Order: Appeal dismissed.