England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(UPPER TRIBUNAL JUDGE KELLY)
[Appeal No: AA/05701/2011]

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd January 2013

Lord Justice Rix:

1. This is the renewed application for permission to appeal of MN, from the Sudan, and the application comes for permission to appeal from the determination of Deputy Upper Tribunal Judge Kelly in the Upper Tribunal, that determination being dated on 17 April 2012. The essential background to the immigration history of MN is well set out in the first paragraph of HHJ Kelly's determination. In essence, MN came here as a student in 2001, applied for asylum in 2003, lost his appeal against removal and was removed in January 2004. He then returned to this country with his wife, who was then in the latter stages of pregnancy, and they now have a little daughter. In July 2010 he made a second claim for asylum. Over the intervening period he claimed to have been detained in Sudan for anti-government activities in the period 2004 to 2008, and again for several months in 2010 after his capture, when he was acting as a confidant in the Sudan Liberation Movement/Army ("the SLM/A"). His 2010 claim was, on appeal, dismissed in the First-tier Tribunal by Immigration Judge Birkby.
2. In April 2011 MN then made a fresh claim, which is the claim under consideration in these proceedings, which was accepted as a fresh claim by the Secretary of State. Mr Gordon Lee, who represents the applicant this morning, has properly reminded me that in accepting the fresh representations as a new claim the Secretary of State was accepting the material provided was significantly different from that previously provided and that there was a realistic prospect of success for fresh consideration. Nevertheless, as I have said, that fresh claim was rejected by the Secretary of State, and on appeal it has been rejected in the First-tier Tribunal by Immigration Judge Jones in his determination dated 11 August 2011, and on appeal to the Upper Tribunal by Deputy Upper Tribunal Judge Kelly. Permission to appeal to this court has been rejected by Senior Upper Tribunal Judge Taylor and on paper by Buxton LJ, who both rejected the grounds of appeal on the basis that, in essence, the attempted appeal is an attempt to reargue facts.
3. The essential case made by MN in his various appeals was that it would be unsafe to return him to Sudan, because he was by ethnicity a non-Arab Darfuri and in addition had undertaken anti-government activity. It is and has been common ground throughout these proceedings that on the basis of the Country Guidance case of AA (Non-Arab Darfuris Relocation (Sudan)) CG [2009] UKAIT 00056 it would be unsafe to return such person on either ground, either on the basis that they were by ethnicity a non-Arab Darfuri or on the basis that special risk is attached to a person of any ethnicity in the light of anti-government activity.
4. There were grave difficulties for MN, so far as both aspects of his claim were concerned, ethnicity and activity, in that the Secretary of State in the screening interview had recorded his answer that he had been born in Khartoum, rather than, as he subsequently was to say, in El Fasher in Darfur, and that his Sudanese passport also stated that he was born in Khartoum. There were also grave difficulties about his claim about anti-government activity and detention and captivity, in that he had been signing visa application forms at the United Kingdom Embassy in Sudan, applications which he had made in person because his fingerprints were recorded for the purposes of those applications, on dates when, on his evidence, he was in detention. He was subsequently to say that the dates that he had given were approximate and that he was not to be held strictly to those dates. That, however, is an outline of some of the difficulties that his claim presented from the very beginning, when he returned to this country in 2010 and made his then second claim for asylum.
5. But as his ultimately fresh claim, which is the one under consideration, progressed, although reliance on anti-government activity was not abandoned, there was much greater weight put by reference to the new material submitted in 2011 on his claim to non-Arab Darfuri ethnicity. Thus the fresh material in particular relied on a report of an acknowledged expert in the matter, Mr Peter Verney, to the effect that based upon MN's knowledge of language and geography in the Darfuri region, which Mr Verney considered MN could not have had unless he was truly from that region, it ought to be found that MN was correct in his claim to be a non-Arab Darfuri. There was also other third-party evidence, such as a document coming forward from the Sudan concerning his having gone to school in El Fasher, and also there was a witness statement and filed evidence from a friend or acquaintance in Britain as to having seen him many years ago when he was a teenager in El Fasher.
6. So this material came forward on the basis of a fresh appeal to the First-tier Tribunal before IJ Jones. IJ Jones considered that material, but ultimately he placed greater weight on MN's lack of credibility than on the material, and particularly the new material, relied upon by him. IJ Jones repeatedly stated in his determination that although ultimately he was deciding the case on MN's lack of credibility, nevertheless he was viewing that matter in the round, as he was required to do by Tanveer Ahmed [2002] UKIAT 00439. I also suspect there is Court of Appeal authority which could be given for the same proposition. IJ Jones also took into account a number of inconsistencies which had been found by Immigration Judge Birkby in the previous year on the previous asylum claim. Although that was in one sense water under the bridge, nevertheless the well-known authority of Devaseelan [2002] UKAIT 00702, and again I think Court of Appeal authority could be given for that, entitles, or indeed requires, an immigration judge at a subsequent hearing not to start completely afresh as though with a tabula rasa, but to take into account, depending on a number of factors, to a greater or lesser extent, previous findings in an earlier tribunal, and Immigration Judge Jones was mindful of that jurisprudence and that responsibility.
7. Nevertheless, IJ Jones was assisted in his determination by hearing MN for himself (MN gave live evidence before him) and he stated at paragraph 28 of his determination that he found for himself a number of inconsistencies which IJ Birkby had previously found. Those inconsistencies I have, in summary fashion, alluded to; matters such as what MN was recorded as saying was his place of birth at his screening hearing, that place of birth being given on his Sudanese passport, and the matters of the discrepancies between his appearances at the United Kingdom Embassy making visa applications at times when he claimed to have been detained or in the hands of the government authorities.
8. There was an appeal to the Upper Tribunal from the determination of IJ Jones, as I have said. That appeal was on the narrow issue, in effect narrow issue, that it may be arguable that IJ Jones had failed to give adequate reasons for not accepting the evidence of Mr Verney in his expert reports. That ground was considered by Deputy Upper Tribunal Judge Kelly in the Upper Tribunal and found not to have been made good, but Deputy Upper Tribunal Judge Kelly's determination goes well beyond a consideration of that essentially narrow ground. Deputy Upper Tribunal Judge Kelly considered the whole structure of IJ Jones's determination in the FTT and found that his holdings were justified by the reasons which he gave. He had only two criticisms to make of IJ Jones's determination. One criticism was that IJ Jones was wrong to suggest, having been prompted to do so by the presenting officer, that the appellant's representatives could have invited Mr Verney to take account of the findings of IJ Birkby when reaching his conclusions. Such a course, he said, would have been wholly inappropriate. So IJ Jones was wrong to imply criticism of the appellant's representatives for failing to ask an expert to comment upon matters that lay beyond his field of competence.
9. I note that criticism and I take account of it, and as I will mention it forms the most important plank in Mr Lee's submissions this morning. But I wonder, indeed, whether that criticism is entirely justified. All that IJ Jones said is that:

"In respect of Mr Verney's report, whilst I do not doubt his expertise, it has to be noted in line with the submissions made by Mr McSorley that he was not made aware of the damning credibility findings within the determination of Immigration Judge Birkby."

In my judgment, although Mr Lee criticises that remark as being an error of law, thereby undermining entirely, by reason of his reference to an irrelevant matter, IJ Jones's conclusions about Mr Verney's report, I rather consider the remark in context as saying, well, Mr Verney's report stands on his own expertise, which IJ Jones repeatedly stressed was considerable and was not doubted, but he, the judge, had to consider the evidence as a whole, including his view of MN's credibility, assisted as it may or may not have been by the findings of IJ Birkby, and that was a different role from that of the expert, Mr Verney.

10. It is one way of expressing the well-known principle that although a court may be assisted more or less by expert evidence, the court is not bound to accept it, and the court has the much wider responsibility of taking account of the expert evidence in the context of the evidence as a whole and the judge's consideration of that evidence. That is the way in which I really regard that matter. Of course, to the extent that it may be thought that the submissions being made on behalf of the Secretary of State before IJ Jones were saying that an expert should be asked to express, as it were, a quasi-judicial opinion on a whole range of matters which lay outside his expertise, -- if indeed that was the submission made before IJ Jones -- I understand Deputy Upper Tribunal Judge Kelly's concern about it. Nevertheless, that is not the way in which I regard IJ Jones's comment about Mr Verney's report and his expertise. The judge was rather commenting on the fact that Mr Verney was not concerned and not aware of difficulties in MN's case outside the interview which he conducted with him. I therefore reject Mr Lee's principal submission before me this morning as to an error of law.
11. Mr Lee's second submission is that IJ Jones had focused on the previous credibility findings of IJ Birkby, but really should have started entirely afresh on what was a fresh claim concerned principally, it is said, with the ethnicity of MN rather than his anti-government activity. In my judgment, this criticism is not justified. The reliance on anti-government activity was not abandoned. The case was put forward as a combination of ethnicity and anti-government activity. The judge was entitled to take into account IJ Birkby's findings. He did no more than that; he noted them, but as I have already said, he had heard MN's evidence for himself and was entitled to form his own view as to MN's credibility, and that is what he said he did, and I see no reason whatsoever to doubt his statement in his determination that that is what he did. He had, after all, heard MN for himself. He had heard MN give evidence and be cross-examined, no doubt, on the particular difficulties which had already been thrown up by the previous proceedings before IJ Birkby. He was therefore in a particularly good position to resolve in his own mind any question of MN's credibility by reference to such an examination.
12. In any event, the question of ethnicity and the question of overall credibility were bound up together. There was the screening interview recording that MN had stated his place of birth to be Khartoum; there was his Sudanese passport stating the same thing; those were matters of credibility tied up with his overall credibility which went to the core of MN's claim to be a non-Arab Darfuri. So the new evidence, and in particular the evidence of the acknowledged expert, Mr Verney, had to be viewed in that context. And that is what IJ Jones did, he considered Mr Verney's report in that context. He paid repeated attention to Mr Verney's expertise. He cited expressly the particular argument relied upon by reference to Mr Verney's report, namely his, Mr Verney's reliance on language not widely known, and geography. But nevertheless the judge took the view which Deputy Upper Tribunal Judge Kelly said he was entitled to do, and I agree, that such knowledge was something which, even though not available, as a subsequent report from Mr Verney emphasised, from public sources such as the Internet and other public documents, was nevertheless available from Darfuris within the United Kingdom. MN was a well-educated man, described as intelligent and resourceful in the determinations, and it was well within IJ Jones's competence to take the view that he was well able to prepare himself for the interview which he had with Mr Verney. As Deputy Upper Tribunal Judge Kelly was to say in the Upper Tribunal at paragraph 13:

"It follows from the above that the judge was entitled to depart from Mr Verney's opinion if, having considered it alongside the matters upon which Mr Verney had (very properly) not been asked to comment, he concluded that the evidence as a whole did not support that opinion. That is precisely what the judge did in attaching greater weight to the inconsistencies in the appellant's account -- as noted by Immigration Judge Birkby (which, incidentally, included inconsistencies as to where he was born) -- than he did to the replies which the appellant gave to Mr Verney during the course of an interview for which he had ample time to prepare."

I do not find it possible, in the light of that, to say that there is a proper ground of appeal on a point of law in this case. Indeed, Deputy Upper Tribunal Judge Kelly could have added to his remarks in that paragraph quoted that, as I have already remarked, IJ Jones was entitled to rely upon his own view, as he stated he did, of MN's credibility, quite apart from IJ Birkby's views about that matter.

13. At the end of the day this is an application for a second appeal, and I am required to apply the second appeal test. I bear in mind that I am entitled or bound to apply that test in a nuanced way, if I form the view that there are strong grounds of appeal, and grave danger to MN if returned to Sudan under the wrong conditions, so far as affects him (see JD (Congo) [2012] EWCA Civ 327). I bear that in mind. I bear in mind that if MN does have the wrong ethnicity or has undertaken anti-government activity, a matter no longer relied on before me, he would be in danger if returned to the Sudan. Nevertheless, I am afraid that I cannot consider that there are strong grounds of appeal. Indeed, my view is that is no real ground of appeal on a point of law before the court. In essence, the submissions to the court are an attempt to re-argue the factual weight of the various aspects of the evidence before the tribunals below; that was the view of Deputy Upper Tribunal Judge Kelly, it was the view of Senior Upper Tribunal Judge Taylor and of Buxton LJ. And unhappily, as I accept it is for MN, it is my view. It follows, that under the second appeal test I am unable to find an important point of law or principle or other compelling reason which would give me jurisdiction to grant an application for permission to appeal to this court.
14. Under those circumstances I must refuse this application.

Order: Application refused.