England and Wales High Court (Administrative Court) Decisions

“Localized discrimination and violence against religious minorities persisted. Ethnic and regional discrimination remained widespread and interethnic, religious, and religious tensions increased significantly. Thousands of persons were killed in various local ethnic and religious conflicts throughout the country. In February and May, rioting between Muslim and Christian groups over the proposed expansion of Shari’a law resulted in the deaths of more than 1,500 persons. Some members of the Ijaw ethnic group in the oil producing Niger Delta region who seek greater local autonomy continued to commit serious abuses, including killings and kidnappings. The police often could not protect citizens from interethnic, interreligious, communal, and criminal violence.”

“The Home Office wrote, by letter dated 8 November 2000, to the appellant enclosing an SEF and giving him a date of interview of 22 November 2000. They sent a second letter to him also dated 8 November 2000 requiring him to attend an asylum-screening interview. The second letter contains a warning that on a failure to attend the interview without proper agreement or a reasonable explanation, the application for asylum would be considered on the available information and may be refused. His solicitors were also sent copies of the letter advising of the appointment.

In fact the appellant did not attend for interview, and by letter dated 16 December 2000 the Secretary of State refused asylum. While the letter does say that the Secretary of State has concluded that the appellant had not established a well-founded fear of persecution and also that the European Convention for the Protection of Human Rights and Fundamental Freedoms was considered, it does not appear that any asylum evidence was considered, as none was before the Secretary of State ¼

The appellant is detained. By a notice dated 13 February 2001 both the appellant at Haslar, and his new solicitors Attenayake & Co, were notified of the date of hearing of 9 March 2001. Directions were made. These have not been complied with. No reply to the request for the return of the standard Reply Form has been received by the IAA.

When this matter was called on, Mr Pipi, Counsel, instructed by Attanayake & Co, attended. He explained to me that he had no relevant papers from the solicitors, and no material to put before me. I asked him to telephone his Instructing Solicitors and inform them that I required a written explanation to be sent to the Court explaining why nothing had been done to prosecute the appeal.

Mr Pipi, who I should say was of assistance, and did his best for the appellant, later informed me that the person who handled the file at the solicitors was not available, but that there had apparently been a copy of the medical certificate (explaining why the appellant had not attended at interview) presented at a bail hearing at Taylor House. None of this information is on file, nor was Mr Gallagher [the respondent’s representative] in possession of it.

Mr Pipi had a further word with the solicitors, but without any success, and also spoke to the appellant. He told me that there appeared to be a tribal and religious claim. He had, however, discussed the matter with his client and felt, in the light of the conversation that took place, that he should withdraw from the case. I gave him leave to do so, as it appeared that he would be unable to help in any event. Mr Pipi kindly remained in Court though to assist on any legal points that might arise.”

“I explained the purpose of the hearing, and that he should tell me what it is that he feared on return to Nigeria so that I could decide what to do. He said that he had been attacked, and had a scar. He had finished his schooling but had no job in Nigeria. He was a Christian, and they, who he thought were Moslems, had attacked him. His father and mother had been killed.

I asked him for more details, and he said that his father had told him that these things started and stopped; his father had been killed in 1988. It was unclear whether his mother had been killed at the same time, but I understood from the response that her death was some time ago.

He had come into the United Kingdom on 15 July. He had explained all t his to his solicitors. I asked him if he was able to identify the people in Nigeria or otherwise explain why they attacked him. He was unable to give me any further information. He had not been contacted by his solicitors while in Haslar. He knew no more about the incident.”

“I considered, of course, whether or not I should adjourn this matter. I could not see any purpose in doing so, given that the appellant was unable to give me any further details about his fear of return. I also considered whether or not he was disadvantaged by the failure of his present solicitors to prosecute the appeal ¼ even had I adjourned the case on the basis that other representatives might be able to appear, I could not see how the appellant would be able to furnish to them the information that he did not furnish at the hearing.”

“Considering the matter, though in possession of facts which I assume the Secretary of State not to have, namely the attack on the appellant, and the deaths of his parents, I note that the appellant, assuming him to be truthful on the facts that he was able to tell me, gave no facts which, objectively assessed, brought him within the Convention. The deaths of his parents are regrettable, as is the attack upon him, but he was unable to state why they had died, or why he was attacked, except to say that he thought that the people who attacked him were Moslem.

Considering the background information on Nigeria, this is simply insufficient to find a well-founded fear.”

“Since the 1980s the appellant’s family has been targeted by Muslims from his home area in Auchi, Edo State, where there has been conflict between the Auchi and the Itsako tribes: the Auchi are Muslim and the Itsako are Christian. The appellant’s family was very wealthy, and seen by the Muslims as financing the Christian resistance, and he considers they were targeted for this reason.

In 1988, the appellant’s mother an sister were attacked and killed by people from the Auchi tribe. The appellant was also attacked and has a scar on his left hand. The day of the attacks he, his father, and elder brother fled south, to Benin city.

In approximately April 1999 the appellant’s father was told that the family home had been burned by Auchi Muslims, and relatives who had been living there to protect the property had been killed, although one of them managed to escape and tell the appellant and his family what had happened. The appellant’s father decided he had to return to his home. However, when in Auchi, the appellant’s father was killed also. The appellant states that the police failed to provide any protection for his father, despite promising to do so. Some time thereafter, the appellant and his brother were told that the people who had killed their father were coming to Benin city to look for them also. (The appellant wishes to make clear that his father was killed in 1999 and not, as the Adjudicator has recorded, in 1988, which was when his sister and mother were killed. He also wishes to clarify that although he had no formal job, he helped his father run his business, and had done this for several years after leaving school.)

The appellant and his brother went to the police and asked them for assistance and protection against their potential assailants, which they were told they would receive. However, while the appellant was visiting a friend, Osayuwame, neighbours came to tell the appellant that his home had been burned, his brother killed, and that the appellant was being sought by the attackers. That night the appellant left for Lagos, leaving for England the next day, with documents supplied by Osayuwame. The appellant believed he would also be killed if he remained.”

“When his appeal was listed at court on 9th March, counsel was instructed, although he had no instruction as to the substance of the appellant’s case, nor had the solicitors complied with directions or submitted a bundle of background evidence. The appellant gave the barrister brief instructions, but was told by him that the issue of internal flight would mean that his case could not succeed. When back in court, the barrister withdrew from the case. The appellant was shocked by this, having had no idea that representation was to be withdrawn. He became tongue-tied and confused when then asked to give an account of this case by the Adjudicator.”

“The Tribunal has read the determination. At the hearing the appellant was represented by experienced counsel who gave every assistance that he could to the adjudicator, and told the adjudicator that he had advised the applicant that his claim did not give rise to a Convention reason.”

That last observation is, with all respect to the Tribunal, plainly wrong. Counsel had not told the Special Adjudicator the content of the advice he had given the claimant. As recorded by the Adjudicator in the passage in his determination which I have already read, all that counsel had told him was that in the light of a conversation which had taken place between him and his client he, counsel, felt that he should withdraw from the case.

“The grounds of appeal amount to no more than a disagreement with the findings of the adjudicator who quite properly refused to adjourn the hearing having heard the basis of the applicant’s claim that he did not engage the Convention. There is no error of law and no substance in the grounds of appeal. The applicant has had every opportunity to put his case.”

“(1) The appellate authority may, subject to the provisions of these Rules, regulate the procedure to be followed in relation to the conduct of any appeal.

(2) The overriding objective shall be to secure the just, timely and effective disposal of appeals and, in order to further that objective, the appellate authority may give directions which control the conduct of any appeal.”

Rule 31(1) provides as follows:

“Where an adjournment of the appeal is requested, the appellate authority shall not adjourn the hearing unless it is satisfied that refusing the adjournment would prevent the just disposal of the appeal.”

“shall be granted only where

(a) the Tribunal is satisfied that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.”

Rule 18(11) of the Rules provides that

“where evidence which was not submitted to the adjudicator is relied upon in an application for leave to appeal, the Tribunal shall not be required to consider that evidence in deciding whether or not to grant leave to appeal unless it is satisfied that there were good reasons why it was not submitted to the adjudicator.”

“It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties technical and psychological in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore should be examined within the framework of a specially established procedure, by qualified personnel, having the necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs.”

“A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-a-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.”

“While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts.”

“The second ground submitted was that the consequence of the Adjudicator declining to adjourn the matter would be that one of the two brothers, who very recently arrived within the jurisdiction (some three weeks before) would have his claim for asylum (his factual evidence) tested in a strenuous, adversarial situation at a time which all the relevant guidance would indicate was inappropriate. It is well recognised that normal practice dictates that before an account of an asylum seeker is tested in an adversarial situation, bearing in mind the stresses inevitably imposed upon persons of that character in a strange and different environment, he or she should be afforded every reasoned opportunity to make representations and to give a full account of himself or herself in a less testing environment. That is, as I understand it, what Miss Conlan was seeking to say to the Adjudicator on this occasion. “He will be unfairly subjected to a test of his credibility. Unfairly because it is too early in his stay and he has not yet been afforded a sufficient opportunity to give a full account of himself and lodge any supporting material in a less testing environment.””

“the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense.”

“There was no question of the Appellant having dispensed with the services of his counsel during the course of the hearing which might have justified the continuation of it. In these circumstances, the only proper course was for the Adjudicator to adjourn the hearing before her.”

MR JUSTICE MUNBY: I now formally hand down in open court my judgment, copies of which in draft have already been sent to the parties, giving the reasons why, at the end of hearing on 20th November 2001, I decided to quash the decision in this case of the Immigration Appeal Tribunal.

I dispensed with attendance of the parties today and I have merely handed down the judgment, copies of which are available to anybody who might wish to have one.