England and Wales High Court (Administrative Court) Decisions

ADERMI OLADELE ADEWOLE And SPECIAL ADJUDICATOR and SECRETARY OF STATE FOR HOME DEPARTMENT RESPONDANT [2000] EWHC Admin 309 (27th March, 2000)

CASE NO: CO/1268/99
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE LIST
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Monday 27 March 2000

STEPHANIE HARRISON (instructed by Tyndallwodes, Windsor House, Temple Row, Birmingham, B2 52S for the Appellant)
ASHLEY UNDERWOOD (instructed by The Treasury Solicitors for the Respondent)

Mr Adewole is an asylum seeker from Nigeria. He sought asylum on arrival here in October 1998. He was interviewed. His application was rejected by letter dated 2.12.1998. Mr Adewole contends that the manner in which his application was dealt with was flawed in law.
The background to that contention is the procedures under the Asylum and Immigration Appeals Act 1993 as amended. Normally an applicant can appeal to a special adjudicator and, with leave, to the Immigration Appeal Tribunal and, with leave, to the Court of Appeal. However there is a fast track procedure under the act which has the effect of depriving an applicant of the possibility of an appeal to the Tribunal. That procedure is initiated by a certification by the Secretary of State. In the present case the Secretary of State certified that the application fell within paragraph 5(3)(b) of Schedule 2 and did not fall within paragraph 5(5) of that Schedule. The first of these provisions applies where an applicant on his arrival in the UK produces to the immigration officer a passport which is not in fact valid and fails to inform the officer of that fact. Paragraph 5(5) reads
This sub-paragraph applies to a claim if the evidence establishes a reasonable likelihood that the appellant has been tortured in the country to which he is to be sent.
Where the Secretary of State certifies, an applicant can appeal to a Special Adjudicator. If the latter agrees that the application falls within paragraph 5(3)(b) and does not fall within 5(5) then the applicant is deprived of any further right of appeal : see paragraph 5(7) of that Schedule.
This application for judicial review challenges two decisions. The first is the decision dated 17.3.1999 of the Special Adjudicator to uphold the certification and to dismiss the appeal. The second is the decision of the Secretary of State in May 1999 to maintain the certificate in spite of new medical evidence and to refuse to refer that evidence to a Special Adjudicator pursuant to s.21 of the Immigration Act 1971. It is convenient to look at these challenges in turn.
The Decisions of the Special Adjudicator
The SA had before him Mr Adewole and a letter from Geo Medical Centre Ltd dated 9.11.1998 - that is after Mr Adewole had arrived in this country. The Geo Medical Centre is in Nigeria and Mr Adewole asserted to the SA that he had gone there immediately after having been released from a Nigerian Prison where he had been tortured by being beaten.
That letter made no mention of any allegation of torture. It indicated that "he was admitted on the 30th of September 1998 with history of weight lost, weakness, fever, lost of appetite, headache, polyurea and polydepsia of one week duration". It indicated that "he was examined and found to be very ill-looking, emanciated conscious, severely dehydrated with sucking eyeballs, dry lips with tongue and slightly pale". It makes no mention of any scars. A diagnosis of Diabetes melitus was made. He was discharged a week after entry and his condition on discharge is described as satisfactory.
According to the contemporary note of Mr Trevor Wornham, the applicant's solicitor, the hearing before the adjudicator concluded with the adjudicator reserving his decision on the substantive appeal but upholding the certificate and indicating that so far as the certificate was concerned he was not satisfied that the applicant had produced substantive evidence to show that he had been tortured. That note was exhibited to an affidavit in these proceedings and has elicited no challenge from the Secretary of State. I am told by Mr Ashley Underwood, who represent the Secretary of State, that he does not represent the other respondent to the present application, namely, the SA. While of course I accept this, I am satisfied that had there been any reason to challenge Mr Wornham's note that could have been done. I proceed on the basis that this note is accurate.
The record of the appellant's initial interviews on arrival in this country were before the SA. In the second of these the appellant indicated that he had twice been detained in a police station. The second detention he said had lasted some 6 months. He was asked whether he had been tortured whilst detained he replied
Yes, tortured, poor diet which has contributed to my illness and I had to be admitted to a private hospital in late September after I got out - Geo Medical Centre Ltd.
He produced the above-mentioned letter from there. There was at this point no express mention of beatings. That allegation however was made in the notice of appeal to the SA and evidence in support of it was given in front of the SA by the appellant.
The SA dismissed the appeal by letter dated 16.4.1999. In that letter he stated
The Secretary of State had certified the Appellant's application for asylum under paragraph 5(3)(b) of Schedule 2 to the 1993 Act (as amended). Owing to his failure to declare to the immigration officer on arrival that his travel documents were not valid and that there was no evidence to show that the Appellant would be (my italics) tortured in Nigeria.
.......
Mr Warnham on behalf of the appellant advised me that the appellant contended that he had been tortured in Nigeria and was relying on the medical report.
.....
The Appellant said that whilst he was in detention he was regularly beaten with horse whips and batons..... He claims that the beatings took place during his second period of detention.
.........
It is for the appellant to satisfy me that there is a reasonable likelihood that should he have to leave this country he would be required to return to a country where he fears persecution. The burden of proof rests upon the appellant. So far as the standard of proof is concerned I firstly must assess subjectively whether the appellant has a fear of persecution in his country of origin which matter is to be decided on the balance of probabilities and then decide objectively whether that fear is well founded. In this latter respect I look to guidance to the judgment of R v SSHD ex parte SIVAKUMARAN (1988) IAR page 147. The requirement being that the appellant's fear of persecution should be well founded. That means that there has to be demonstrated a reasonable degree of likelihood that he will persecuted for a convention reason if he returns to his own country. Following the decision in Kaja (11038) the criterion of reasonable degree of likelihood applies to all the objective aspects of an asylum claim including assessment of the facts and is a lighter burden than on the balance of probabilities. Any uncertainty of fact is to be weighed in the balance rather than being excluded as it would be if the balance of probabilities was the sole criterion. Therefore I have assessed whether the appellant's claim to asylum is well founded by viewing the whole of the evidence going to the past present and future according to the criterion of the reasonable degree of likelihood.........
I am particularly surprised that the medical report from the GEO Medical Centre Ltd.... makes no reference at all to the appellant having been tortured or ill-treated. There was no evidence at all in the report covering that situation. That is something that I would have expected to have been contained in the report particularly as the appellant had the confidence to be admitted to that private institution and apparently stayed there for approximately a week. I believe that his credibility on the question of torture and ill-treatment is severely diminished.....
I cannot accept that this appellant suffered any ill treatment at the hands of the authorities in Nigeria because the evidence does not point to that and even if I am wrong in my findings as far as that is concerned as I have said I have to look to the present and future situation in Nigeria. The situation there clearly is much improved......
There is evidence ..... that many political prisoners have been released under Abubakar and there is also evidence that people have been able to return to Nigeria quite safely. On the evidence before me having regard to this particular appellant's low level involvement in politics and given the improved changes in Nigeria there is nothing to show in the evidence before me that if this appellant were to be returned to Nigeria he would be detained and he would be placed in danger. I take the view that if he were to be returned Nigeria he would be able to resume a normal life there.
I accept that there would be teething troubles in Nigeria leading up to hand-over to an elected President in May 1999 but that should not affect this appellant. From the evidence before me I am not satisfied that this appellant has made out the basic claim to asylum..... As indicated in open court I uphold the Secretary of State's certificate.... That being so this is not a case where the appellant is entitled to a right of appeal to the Tribunal.
Miss Stephanie Harrison made submissions on the applicant's behalf both in relation to the certification and in relation to the substantive appeal. I look first at the certificate.
The certificate

She submits, correctly, that the SA should have asked himself whether the evidence established a reasonable likelihood that the appellant had been tortured in Nigeria. She submits that the SA's remarks in open court at the conclusion of the hearing indicate that he did not apply this test but on the contrary regarded it as being for the applicant to produce substantive evidence to show that he was tortured. She submits, correctly, that in the course of cross-examination by the representative of the Home Office, the applicant offered to show her his scars, an offer which was not accepted. She criticises the SA for failing to examine for himself those scars.

I regard this last criticism as misplaced. There was no issue before the adjudicator as to whether the appellant bore scars. The issue was whether these had been inflicted by the authorities whilst he was in prison in Nigeria. The viewing of the scars by the SA would not have helped resolve that issue. At best it would have established that the scars were consistent with the appellant's allegation of torture. There is no indication that the SA was invited by Mr Wornham to view the scars. The SA was not a doctor. It can not be said that his failure to do so on the offer being made amounts to an error of law or of procedure.
It may well be that the SA was entitled on the evidence before him to refuse to accept the Appellant's account of torture and to come to the conclusion that the evidence did not establish a reasonable likelihood that the appellant had been tortured in Nigeria. There clearly is some force on the point that there is no mention of torture in the Geo-Medical Centre Report. However, for reasons which I am about to give, I am uneasy about whether the SA asked himself the right question, namely, does the evidence establish a reasonable likelihood of past torture of the appellant in Nigeria. If he did not ask himself the right question, then his decision ought to be quashed. The mere fact that he might lawfully have arrived at the same answer if he had asked himself the right question would not constitute a reason for refusing to quash.
My unease springs from several factors looked at in combination.
1. The words that the SA is reported as saying at the end of the hearing to the effect that he was not satisfied that the applicant had produced substantive evidence to show that he has been tortured. That correctly looks to the past. However, the applicant had produced evidence, which would seem to qualify for the adjective "substantive", namely his own say so. It is evidence consistent with a widespread practice of torture in Nigeria at the time. There was no evidence to the contrary and, apart from medical evidence of physical symptoms evidencing wounds which were consistent with torture, it must be unusual to produce more. The torturers themselves are presumably never available and witnesses seldom so. I accept that the SA was not bound to believe the appellant but his only reason for not doing so was the absence of any reference to torture in the medical report from Nigeria. While this is clearly a point, it is not a point of overwhelming weight in the absence of evidence as to precisely what was asked for and any problems which in Nigeria might attend the author of such a report who retails allegations of torture. Save in this one respect relating to past torture, there was no other respect in which the appellant was disbelieved by the SA.
2. The words which I have italicised at the beginning of my citation from the SA's decision letter and which look to the future. This part of the decision letter summarises the Secretary of State's refusal letter of 2.12.1998. That refusal letter contains the following paragraph
The Secretary of State also certifies your application under paragraph 5(3)(b) of Schedule 2 to the 1993 Act (as amended) owing to your failure to declare to the Immigration Officer on arrival that your travel documents were not valid; also because paragraph 5(5) does not apply because you have adduced no evidence relating to torture.
This seems to me unfortunately expressed, to say the least, given that the appellant had said in interview, in reply to the question, "What particular event caused you to leave your own country?" " Because I was being tortured while in detention." That is clearly evidence. The Secretary of State may not believe it but if this is the case it would seem better to say something on the lines of "The Secretary of State does not accept your evidence that you were being tortured and there is no other evidence establishing a reasonable likelihood that you were tortured in Nigeria." Although the words relating to torture are capable of referring either to torture past or torture in the future, in view of the express reference to paragraph 5(5) I would have been inclined to construe them to torture in the past.
However, I am concerned primarily with the SA's letter. He changes the tense and expressly refers to there being "no evidence to show that the appellant would be tortured in Nigeria". This suggests that the SA is focussing on the future rather than the past.
3. The absence either in the words used at the end of the appeal hearing or in the decision letter of any clear indication that the SA was, when making findings as to the past, asking himself whether the evidence established a reasonable likelihood that the appellant had been tortured.
4. The very summary way in which the point is dealt with by the SA, no doubt influenced by his view that, whatever, the past, there was no reason for concern as to the future. All he says as to the past is "I cannot accept that this appellant suffered any ill treatment at the hands of the authorities in Nigeria because the evidence does not point to that".
5. The fact that there is now available what was not available to the SA, namely, a medical report from the Medical Foundation indicating scarring consistent with beatings in the manner alleged by the appellant. There is a whole series of linear scars on this man's back and legs and nothing on his arms. This last factor, as the doctor points out, suggests that he could not make any attempt to defend himself with his arms and, is therefore compatible with being held by the arms as he alleges. I am conscious that this report is legally irrelevant to the question whether the SA asked himself the right question.
I am very conscious that the special adjudicators have a heavy work load and that it is not desirable for this court to construe their decision letters in an unduly critical way. However, in the present case, it is impossible to be sure that the SA properly addressed the right question in relation to certification. Probably his concentration was on the future and, because of his conclusions as to that, he did not spend what may have seemed unnecessary time on the difficult question of the past. However, the past does matter because it is the past which determines whether Mr Adewole has the chance to test the SA's views on the future elsewhere. That can not be done if the SA's decision in relation to certification stands.
I have heard submission as to the right course procedurally. Miss Harrison submitted that, in the light of the law as it now stands, the adjudicator erred in the way he dealt with the substantive appeal. I do not find it necessary to reach a conclusion on that point. I think it unsatisfactory on the facts of this case for a decision to be come to on this man's future without the decision taker having come to a clear decision in relation to past torture. It is not necessary for me to decide whether the Secretary of State erred in exercising his discretion under s. 21. Procedurally and practically in the present case the choice lies between (1) my quashing the decision of the SA on the appeal on the basis that it would be unsafe to allow part of the decision letter to stand when the part in relation to the certificate is unsatisfactory and referring the appeal and the question of certification to a new SA, and (2) my not quashing that part of the decision which relates to the appeal and leaving it to the IAT to decide whether or not to give leave to appeal.
Miss Harrison submitted that there ought now to be a hearing of the totality of this man's case before some person or body possessed of the new medical evidence. I agree that the substantive appeal ought to be heard by a person or body which is possessed of the new medical evidence so that it can properly judge this man's fears in the round. She submits that the only way that this can be assured is by a quashing of the SA's decision on the appeal and a reference to a new SA of both the question of certification and the appeal. Mr Underwood, faced with my conclusions as to the SA's approach to the certification question, has not submitted to the contrary but has submitted that there is no advantage in having the matter sent back to a new SA which would take yet more time in a matter which has already taken long enough.
While I am conscious that I can not direct the Tribunal to hear an appeal, I have little doubt that they will agree with me that the safest, simplest and quickest course is to grant permission to appeal if it is asked for. On an appeal each side will no doubt be in a position to put before the Tribunal all the relevant evidence. In those circumstances, I shall order that the SA's decision be quashed and that the decision be repromulgated without a certificate. That will have the procedural result that Mr Adewole can apply to the Tribunal for leave to appeal and they will have jurisdiction to accede to that application and in due course consider his appeal.

It is unnecessary to consider whether or no the Secretary of State erred in not referring the Medical Foundation Report to the SA under s.21. No doubt the appellant can refer the material himself to the SA at any new hearing.
The Secretary of State will pay the applicant's costs of the judicial review proceedings. The applicant will have an order for Legal Aid Assessment.