QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DIABY||(CLAIMANT)|
|IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS J ANDERSON (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Crown Copyright ©
Thursday, 6th November 2003
"The Appellant is a national of Cote d'Ivoire, she was born 6 March 1992. The appeal is against a decision by the Respondent [Secretary of State for the Home Department] on 30 November 2001 which gave directions for the Appellant's removal from the United Kingdom pursuant to section 16(1) Immigration Act 1971 following the Respondent's refusal to recognise the Appellant as a refugee under paragraph 336 of HC395 (The Immigration Rules). The appeal is under section 69(5) Immigration and Asylum Act 1999 on the basis that the Appellant claims the decision to issue removal directions against her was contrary to the United Kingdom's obligations under the 1951 United Nations Convention relating to the status of refugees. In a Statement of Additional Grounds filed under section 74 Immigration and Asylum Act 1999 the Appellant has also claimed if she is returned to Cote d'Ivoire her human rights will be breached, and she relies on Articles 2, 3 and 8 European Convention for the Protection of Human Rights and fundamental freedoms. There is therefore a separate appeal under section 65 Immigration and Asylum Act 1999 relating to the Appellant's human rights.
The Appellant arrived in the United Kingdom on 16 March 2001; she arrived on a train and subsequently claimed asylum on 8 October 2001. By the time the Appellant claimed asylum she was five months pregnant. Her daughter Shara Diaby was born on 5 January 2002 in London. The Appellant's daughter is a dependant on her mother's claim. The Appellant has provided a statement of evidence dated 19 October 2001; she was also interviewed in relation to her claim for asylum on 19 November 2001. Subsequently the Appellant has made a further statement dated 8 August 2002. The Appellant's claims both in relation to asylum and her human rights can be summarised as follows:
(a) The Appellant was born in Daloa, she is a Muslim from the Gula ethnic group. The Appellant's parents are both now dead. The Appellant's father, when he was alive was the Imam for a mosque in Daloa, where the Appellant and her family lived. Most of the people of Daloa are Christians and had always given the Appellant's family problems."
"In the light of my findings set out above I do not consider this Appellant has a well founded fear of persecution for a Convention reason on being returned to Cote d'Ivoire at the present time. In the circumstances the asylum appeal is dismissed. In addition, I do not find this Appellant's return to Cote d'Ivoire could place her at risk of torture or other inhuman or degrading treatment, and I do not find the Appellant's rights to a private and family life with her partner would be breached if she were returned to Cote d'Ivoire at the present time. In the circumstances the human rights appeal is also dismissed."
Those conclusions at paragraph 14 were based on a detailed summary of the evidence before the adjudicator, which she sets out at length in the earlier paragraphs of the reasons.
"The claimant, a national of the Cote d'Ivoire, made an application for asylum which was refused by the respondent on 30 November 2001. She appealed. Her appeal was heard by an adjudicator (Ms C J Wright) who in a determination promulgated on 27 September 2002 dismissed her appeal and her human rights claim. The grounds of appeal are attached. The Tribunal has read the grounds of appeal and the determination. The claimant gave evidence before the Adjudicator. The basis of her claim was that [she] was a Muslim and that her father was the local Imam and that she had been attacked by local villagers and that her parents' house had been burnt and she now no longer knows the whereabouts of her parents and her sister. The claimant lives with another Ivorian, and has a child by him. He has exceptional leave to remain until 2003 [I pause to say that has now been extended to indefinite leave to remain]. The Adjudicator accepted that the claimant was a Muslim, that her father was the Imam of a local mosque and that she and her family were attacked by Christian neighbours on various occasions. She accepted the account given of the attack on two occasions in February 2001. She then went on to review the remainder of the claimant's evidence, the claim that she would be attacked again and persecuted by Christians from her local area. She then reviewed the objective evidence which said that 39% of the population were Muslims and 26% were Christians and approximately 17% followed traditional Animist beliefs. She then went on to find that the claimant did not have a well-founded fear of persecution for a Convention reason on being returned to the Cote d'Ivoire. There is no error of law in that finding and the question of internal relocation does not arise as a result of that finding. Additionally she quite properly found that there would be no breach of the claimant's human rights if she was returned to the Cote d'Ivoire with her child. The Tribunal applying the guidance given in Mahmood found that it would not be disproportionate to remove her to the Cote d'Ivoire in pursuance of immigration control. There is no error of law in the determination and no reasonable prospect that the grounds of appeal will succeed."
Then this final important sentence:
"Doubtless the claimant will not be removed until the current situation in the Ivory Coast calms."
"On 19th September 2002, a group of armed rebels based in the north of the country tried unsuccessfully to overthrow the government by force. A peace agreement was signed in Paris on 25 January 2003. Many government supporters in Abidjan blamed the French for what they saw as a bad agreement. There were a number of large demonstrations. Some of these were violent, with destruction of property (French buildings were targeted) and threats to westerners. The airport was closed by violent crowds on 31 January. Although the peace process continues, the security situation in Abidjan remains tense."
That, as I have said, was the most recent evidence of the current state of civil society in the Ivory Coast.
"Leave to 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."
It seems to me that (b) is not applicable in this case. The rule appears to be a reflection of the Civil Procedure Rules on summary judgment and provides for the circumstance where it is important, for reasons other than the likelihood of success, that an appeal should take place. In the normal case the Rules direct the Immigration Appeal Tribunal to being satisfied that the appeal would have a real prospect of success in deciding whether to grant permission.