England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		29th June 2005

Wednesday, 29th June 2005

MR JUSTICE MOSES:

Introduction

1. In form this is a challenge to the Secretary of State's decision to remove the claimant to Liberia. The decision was made on 14th October 2004 but because the underlying challenge focuses on the Secretary of State's assessment of the continuing situation in Liberia, this application for judicial review, following the permission of the single judge, is concerned with the situation in Liberia up to the present.
2. As recently as 27th June 2005 the Secretary of State maintained his decision to remove the claimant in light of the current situation in that distressful country.
3. Liberia is approximately 97,754 square kilometres in size. It had a population of 3.6 million in mid-2004. It has an estimated 80 per cent of the population living on less than $1 a day, and the country has an unemployment record, so it was reported in February 2005, of at least 70 per cent.
4. Immigration controls, so the Secretary of State asserts, requires this 20-year old to be returned to that country and earn his living as best he can as a street trader.
5. The issue in this case is whether the Secretary of State's persistence in his decision to remove the claimant following his unsuccessful claim for asylum is unlawful. The challenge is based on two grounds. First, that the Secretary of State should have treated his representations, based on the evidence of continuing danger which has emerged since the adjudicator's refusal of his appeal, as a fresh claim pursuant to Rule 346 of the Immigration Rules HC 395. Secondly, that irrespective of any claim for refugee status or for protection of his Article 3 and Article 8 rights, the Secretary of State's decision not to follow the current recommendations of UNHCR is irrational.

The facts

6. The claimant was born in Liberia on 18th October 1984. Thus he is now 20. He was arrested in March 2000 and held for a week by the authorities. He was beaten. He was arrested again in November 2000. In December 2002 rebels from one faction, in a country in which there was civil war and complete breakdown of law and order, came to his home and killed his father. His mother and brother ran away. He and his sister were taken by the rebels and made to work for them. In April 2003 his sister was killed after being raped by LURD rebels. He managed to escape in June 2003 and was interrogated and tortured for information by government troops. When rival rebels, MODEL, overran the police station he was made to work for them, but he managed to escape and cross the border into Sierra Leone claiming asylum on his arrival on 25th August 2003.
7. These facts were accepted, after the Secretary of State had refused his asylum claim, by the adjudicator on his appeal on 30th March 2004. The truth was accepted save for an attempt to bolster his claim with an indistinct photograph. No one hearing of the facts could fail to be moved by the claimant's plight. He was forced to flee from his country of birth. He is now required to return to a place still riven with poverty and turmoil following civil war but without the benefit of any family.

The adjudicator's decision

8. The adjudicator's decision not to allow the appeal against the Secretary of State's decision to refuse refugee status and that he would not face a real risk of treatment falling within Article 3, was based upon the decision of the tribunal in T(Liberia) [2003] UKIAT 00164, a decision of the IAT of 27th November 2003.
9. The decision was also based upon the adjudicator's own assessment of the objective material. The decision and the adjudicator's assessment are of importance since for the purposes of the grounds of challenge it is necessary to compare the situation in Liberia as assessed by the tribunal and the adjudicator with that which emerges from more recent material to see whether the fresh representations on behalf of the claimant satisfy the requirements of Rule 346 and the test adumbrated by the Court of Appeal in R v Secretary of State for the Home Department ex parte Onibiyo [1996] Imm AR 370.
10. It is also important to record the chronological series of reports on conditions in Liberia in order to assess the contention that the representations based on the most recent reports constitute a fresh claim.
11. The adjudicator based his decision on the tribunal in T's case assessment of risk to a failed asylum seeker if returned to Monrovia. The Immigration Appeal Tribunal in T based its assessment on two reports, that of the CIPU of October 2003 and Amnesty International of 24th November 2003. At paragraph 5.18 CIPU reported:

"There has been a reduction in violence in areas where peacekeepers have been deployed, particularly around Monrovia, but the situation remains tense."

12. It also recorded, at 6.49, that in August 2003 the United Nations Security Council sanctioned the deployment of a peacekeeping force.
13. At 6.54 the report noted that:

"Conditions within Monrovia have improved, but the provision of basic services remains poor... violent clashes between rebel and government supporters, has made the provision of aid, and reporting on conditions... very difficult. In July 2003, the UNHCR requested that governments do not enforce the removal of failed Liberian asylum seekers for a period of six months."

14. The tribunal itself noted that the request of UNHCR was made at the height of fighting and a month before the ceasefire came into effect.
15. The Amnesty report of 24th November 2003 noted that the capital, Monrovia, enjoyed an uneasy calm after the devastating events of June and July. The report also pointed out that nothing like the full compliment of 15,000 troops had as yet been deployed, but, until March of next year, 4,500 troops would be in place.
16. The tribunal then concluded that conditions within Monrovia were not such as to engage Article 3, but described the situation as "tense but... under control" and observed that United Nations troops were able to keep peace in that city. It therefore concluded that the applicant, a Muslim Mandingo, like the claimant in this case, would be at no particular enhanced risk over and above that run by other Liberian citizens and that such citizens were not at real risk of what it described as Article 3 harm.
17. The adjudicator, on 30th March 2004, reached the same view based upon that report and his own independent assessment (see paragraph 33 of his determination). He also considered the effect of the applicant's understandable depression upon him personally, but did not regard any personal factors as justifying the view that it would be a breach of his Article 3 rights to return him.

Subsequent events

18. Since the decision of the adjudicator on 30th March 2004 there have been two further tribunal decisions. First, a decision in LB (Liberia) [2004] UKIAT 00299 of 28th April 2004 in which the tribunal took a similar view that there was no reason, in order to protect the claimant's Article 3 rights, as to why he should not be returned to Liberia. The tribunal, on that occasion, noted that UNHCR had not, in January 2004, extended its recommendation that there should not be removals for a period of 6 months (see paragraph 17.9). It concluded that the UNHCR report did not help it determine the situation in Monrovia at the date of its decision. It noted the up-to-date evidence contained in the Amnesty International report and adopted the conclusions of the tribunal in T. It also noted that the UNHCR report of 8th August 2003 did not reflect the current humanitarian situation in Monrovia (see 18.2). It recorded:

"... the general humanitarian conditions in Monrovia are very bad. We acknowledge that, if the Appellant is returned to Monrovia, he would experience difficulties in obtaining food supplies, shelter and other basic necessities. The objective evidence indicates that there are NGOs operating in Monrovia, although we acknowledge that they experienced difficulties in distributing food after the port of Monrovia was looted." (see paragraph 18.3)

It then concluded that the conditions were not of sufficient severity to engage Articles 2 or 3. A similar conclusion was reached by another tribunal in May 2004 in a case called JM.

19. It is asserted by Miss Rogers, on behalf of the claimant, that evidence which has subsequently emerged concerning the situation in Liberia demonstrates that both the adjudicator and the tribunal were unduly optimistic as to the safety of those returned. Abuses remain and circumstances are so unstable that to return him would offend his Article 3 rights. She stresses that it is not so much that circumstances have changed since those earlier decisions but rather that subsequent events have falsified the previous assessments of 2003 and 2004.
20. In order to judge that contention it is necessary to record the material which has emerged since the adjudicator's assessment and the assessments of the tribunals to which I have referred. The adjudicator's assessment cannot, of course, now be impugned since there never was any appeal advanced against that determination.
21. On 13th September 2004 the Home Office Enforcement and Removals London Command wrote to Asylum Aid (which was then acting on behalf of the claimant) refusing to release the claimant from detention, commenting on his depression and recording its view that, in the light of the figures of those who were returning to Liberia, effectively the situation was no worse than it was at the time of the adjudication.
22. On 23rd September Asylum Aid wrote to the Immigration Service enclosing what it described as significant new information not available at the time of the appeal. That material included a report of UNHCR sent to the claimant's representatives, dated 17th September 2004. At page 2 of that report UNHCR recorded that after ten years of conflict, culminating in what it described as tenuous peace, there is:

"... still targeting, on Convention grounds, of specific ethnic groups by non-state agents of persecution, and continuing incidents of serious human rights abuses throughout Liberia."

23. It stated that a judgment regarding the durable nature of such changes is at present premature. It therefore continued to recommend:

"... careful screening of Liberian asylum seekers, with a view to determining their international protection needs. The continuing violations of human rights and of international humanitarian law and the targeting of civilians by all parties to the conflict - partly on ethnic grounds, partly on political grounds - means that many Liberians may indeed qualify as refugees under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees."

24. It also recommended that:

"... States operate a complete suspension on enforced removals to Liberia, including removals of unsuccessful asylum applicants. UNHCR advises States that Liberian asylum applicants who are not recognised as refugees should be considered favourably for complementary forms of protection. Also, UNHCR emphasises the need to ensure that each individual's particular circumstances are carefully considered, as factors such as age, gender and/or medical condition may make an individual even more susceptible to suffering and/or abuse on return."

25. The letter also enclosed the report of Amnesty International, dated 17th August 2004, in which it was stated that despite major advances progress towards ensuring protection of human rights was disappointingly slow. The report noted that steady advances in deployment of United Nations forces and disarmament and demobilisation had undoubtedly resulted in improvements, but civilians, it stated, remained at risk. It said:

"As Liberia emerges only falteringly from a human rights crisis, protection of human rights - in the immediate and longer term - has to be a priority."

26. In May 2004 both newspaper reports and United Nations officials recorded the effect of riots that had taken place in Monrovia in which a number of people had been killed. They arose out of the rebels' claims for cash in return for surrender of weapons.
27. On 21st September 2004 the United Nations IRINNEWS.ORG recorded that refugees returning to Liberia under the auspices of a UN repatriation programme would face starvation unless donors urgently provided more money to feed them. It noted the number of repatriation and resettlement of those who were internally displaced.
28. Similar comments were made in a report of 21st September 2004 in which it was recorded that one of the rebel groups intended to disarm by the end of October.
29. On 23rd September the Home Office wrote to a representative of Bail for Immigration Detainees recording its views about Liberia based upon what it regarded as a situation which did not qualify for protection as a refugee or humanitarian protection, although it noted that general conditions within the country remained poor and that that had to be taken into account by case workers when considering applications for refugee status.
30. On 22nd September 2004 the Home Office wrote to an MP who had raised the claimant's case saying that Liberia had not undergone any significant change since his appeal before the adjudicator. This fresh information culminated in the decision letters of 4th and 14th October 2004 which formally are the subject of challenge, although since the situation has continued to be under observation, as one would expect, up to the date of this hearing, in a sense it is the up-to-date situation that is of the greatest importance.
31. On 4th October 2004 the Home Office, in refusing to regard the representations as constituting a fresh claim, concluded that the report of UNHCR, dated 17th September 2004, was a general assessment and maintained its decision that the claimant would be safe if returned. That was confirmed by the directions given on 14th October.
32. Further documents were considered in the period beyond October 2004. Within the bundle, although it is not clear how it emerged, there is a reference to ABC News of 29th October 2004 recording that there were 15,000 United Nations troops in Liberia, by that stage the biggest peacekeeping force in the world:

"... 80,000 fighters have been disarmed but with a crippled economy, massive unemployment and few opportunities, youths, many of them ex-combatants, vent their anger and frustration by rioting."

33. There were three days of riots between 28th October and 31st October recording mass arrests. The United Nations envoy, Jacques Klein, did not regard those riots as being a serious threat to peace in the country, although the outskirts of Monrovia remained tense.
34. The summary grounds drafted by the Secretary of State in response to the claim for judicial review, which was advanced on 2nd November 2004, commented upon the three days of unrest on 28th October but stated the Secretary of State's view that Monrovia had now quietened down.
35. There were further reports by the United Nations Office for the Coordination of Humanitarian Affairs in November 2004 which noted that calm had returned to Monrovia and other parts of Liberia, although casualty figures started to rise in the aftermath of the October riots.
36. The three warring factions, two of which I have already referred to, LURD (Liberians United for Reconciliation and Democracy) and MODEL (Movement for Democracy in Liberia) announced they were disbanding at a solemn ceremony on 3rd November. The report noted normalcy returning and the planned movement of internally displaced persons to areas of origin.
37. In January 2005 UNHCR repeated its recommendation. Much of that report is repetition of what it said in September 2004, but it continued to recommend that states operate a complete suspension on enforced removals to Liberia, including removals of unsuccessful asylum applicants.
38. In February 2005 the UNHCR Liberia bulletin noted that the security situation in Liberia continued to remain calm and that the security phase had been downgraded in most places save for counties bordering Cote D'Ivoire and Guinea. In those circumstances UNHCR was prepared to facilitate returns to certain areas. It recorded that confidence was being built up as efforts were pursued to re-establish local government control. It noted that parliamentary elections were due to be held in October and that there had been requests to speed up repatriation and resettlement of refugees.
39. The same report recorded the request of Mr Lubber, the UN High Commissioner, that there should be accelerated returns to boost confidence in the peace process. A further news bulletin recorded him as noting that people were building peace together.
40. A report from the Economist.com, dated 3rd May 2005, stated that Liberia was calm due to the largest United Nations peacekeeping force, of which the locals approved. The same report stated that Liberia would collapse if those troops pulled out. It stated that the country was still poor and ill-governed, but it was no longer a charnel house so it had a chance.
41. The United States Department of State Report, dated 28th February 2005, noted that, following the resignation of President Taylor, the human rights record of the government remained poor and security forces committed numerous serious abuses. There was arbitrary arrest and detention and lengthy pre-trial detention was common. The judicial system was unable to ensure citizens' rights to due process and a fair trial. But, unlike the previous year, it reported there were no reports of political or unlawful killings, or of politically motivated disappearances. There were no reports of torture and security forces did not target or abuse critics of the government. There were no reports of harassment, arbitrary arrest or assault by the government. It recorded the Constitution's provision for rights of free movement and emigration, but that the government sometimes did not respect those rights. It noted that curfew in Monrovia, which had been imposed following the October riots, was lifted in November.
42. The CIPU report, dated April 2005, similarly recorded improvement. It noted that as a result of the ending of conflict and the transition to peace, prospects for economic growth had improved considerably. It cited an in-country report, dated December 2004, stating that the disarmament process had been carried out relatively effectively without violence or large scale resistance. It noted the volatility of Monrovia, but that United Nations troops had undertaken robust action to bring the situation under control and forestall further acts of violence in areas affected by civil violence. It observed that by the end of 2004 peacekeepers were deployed in all major towns and along most highways, although there was still vulnerability to serious attack in rural areas.
43. It recorded the Médecins Sans Frontières Report of January 2004 in relation to problems of health care, sanitation and victimisation due to sexual violence. The NTGL did not, it stated, harass, marginalise or attempt to intimidate the Muslim population unlike the previous Taylor government (see paragraph 6.16). It had attempted a more even-handed approach to religious groups (see 6.27). It recorded the UNHCR report, in its global appeal of 2005, into the problems of returning refugees and discussed the humanitarian situation in relation to a whole generation of youngsters who have been brought up without education and had known only violence and warfare (see paragraph 6.74).
44. In the Operational Guidance Note on Liberia it was recorded that the government had progressively extended its control and that political, human rights and security conditions in the vast majority of the country had improved markedly. It also recorded that there was no evidence to suggest that persons of Mandingo origin would not be able to seek and receive protection from state authorities. It reached the conclusion that relocation was possible internally (see 3.84).
45. On 31st May 2005 the UNHCR wrote a letter in which it recorded its continuing recommendation that states suspend enforced removal to Liberia. The Secretary of State wrote, as recently as 27th June 2005, maintaining its attitude to the return of this claimant in the light of the information to which I have already referred.

A fresh claim?

46. The relevant rules in relation to most of the material is that which is contained in Rule 346, which provides:

"When an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:

(i) is not significant; or

(ii) is not credible; or

(iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined."

This has now been replaced, although it makes no material difference in this application, by Rule 353.

47. The test which must be applied is that which is adumbrated in Onibiyo, namely whether comparing the new claim with the earlier claim, the new claim is sufficiently different to admit of a realistic prospect that a favourable view could be taken of it (see the Master of the Rolls' judgment).
48. It is plain that the Secretary of State has taken into account the continuing recommendation of the UNHCR. Such a body should command universal respect, support and sympathy for the vital work it undertakes on behalf of us all, but it must be recognised that its responsibilities are not co-extensive with those of individual states and certainly not with that of the United Kingdom. It is plain from the terms of its reports that it does not confine consideration to persecution on the grounds specified in the 1951 Convention relating to the status of refugees, known as the Geneva Convention. Its responsibilities are broader and not limited to whether removal would breach rights in Article 3.
49. That is made clear in its own report, for example, of 17th September 2004, on the third page, when it includes advice in relation to the removal of unsuccessful asylum applicants and in its reference to complementary forms of protection.
50. A number of Executive Committee communications also make that clear. The recommendations of the Executive Committee demonstrate the width of the UNHCR's protective net. But the Secretary of State does not have so wide an obligation. It is clear he took into account those recommendations but he was not bound to follow them. The material to which I have already referred amply demonstrates the basis for his conclusion that whilst conditions would be hard for the claimant on return, there is no basis for saying he would be persecuted for a Convention reason or that there is a real risk that his Article 3 rights would be infringed. On the contrary, those reports show that circumstances have improved since the date of the adjudicator's decision.
51. For those reasons the claimant has not established that there is any likelihood that his fresh claim might result in a more favourable view. The Secretary of State, in those circumstances, was entitled to treat his representations as not constituting a fresh claim under the principles I have identified.
52. The claimant's second claim is of even greater width. Even if the Secretary of State was entitled to treat the representations as not constituting a fresh claim, it was contended that he was bound to follow the recommendation or it would be irrational for him not to do so in the absence of any good reason. I pause to say that a good reason for not following their recommendation was well-established in the material to which I have already referred. But the submission is that the claimant need not rely upon persecution for any Convention reason, nor a risk of infringement of his Article 3 rights.
53. The claimant relies upon the General Assembly Resolution 428(V) of 14th December 1950 in which the General Assembly, at paragraph 2, called upon governments to cooperate with the UNHCR in the performance of his functions concerning refugees falling under the competence of his office. That was reiterated in the Executive Committee recommendations in relation to voluntary repatriation of 6th June 2005 in which it was stated at (f):

"The humanitarian concerns of the High Commissioner should be recognised and respected by all parties and he should receive full support in his efforts to carry out his humanitarian mandate in providing international protection to refugees and in seeking a solution to refugee problems."

54. So, it is said, the Secretary of State is bound to support and cooperate with the UNHCR. He could only do so by adopting the recommendations. Novel though that proposition be, and much though cooperation and support is to be encouraged, it is hopeless. It is contrary to both principle and authority. There is no basis for contending that this claimant can rely, contrary to the Immigration Act and the Rules made thereunder, on the General Assembly Resolution or Executive Committee conclusions. Indeed, the submissions are wholly inconsistent with the Court of Appeal's decision, for example, in Mhute v Secretary of State for the Home Department [2003] EWCA Civ 1029, 18th June 2003, at paragraph 18.
55. There is no basis for saying that the Secretary of State was bound by the recommendation. True it is he must take it into account; this the Secretary of State has done. I have every sympathy for this young man. He has survived the loss of his family and total dislocation and disruption of his life in Liberia. He has suffered grievously as a result and must now return to a poverty stricken country which requires peace to be maintained by foreign troops. There he can expect no support from his family and must seek to survive as a street trader aged 20. What a world we live in and this court can do nothing to help.
56. MISS ROGERS: I am grateful, my Lord. There are no applications other than Legal Aid assessment.
57. MR JUSTICE MOSES: Yes.
58. MR SACHDEVA: My Lord, I have no applications at all.
59. MR JUSTICE MOSES: Yes, thank you very much.