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
		16 February 2005

1. MR JUSTICE EVANS-LOMBE: This is an appeal from the decision of the Immigration Appeal Tribunal of 9th August 2004, whereby they quashed the decision of the Adjudicator in this case, given on 22nd September 2003.
2. The Adjudicator had allowed an appeal from the decision of the Secretary of State, denying the applicant, Miss Koroma, access to this country, her claim being that she, having arrived here, should not be removed because to do so would be to return her to Sierra Leone, her home country, where conditions were such that to so return her would have meant a breach of her Convention rights, in particular her rights under Article 3.
3. The circumstances of Miss Koroma are these: she arrived in this country on 12th March 2000 and claimed asylum on 24th July of that year.
4. Her asylum application was refused by the Secretary of State on 29th October. The Adjudicator, Mr Scott, as I have said, promulgated his decision, allowing Miss Koroma's appeal from the Secretary of State's decision on 22nd September.
5. The Adjudicator describes the particular circumstances of Miss Koroma in the first 41 paragraphs of his decision.
6. Briefly summarised, she describes how she is a member of a family who were opposed to an organisation called the RUF, which some four or five years mounted a rebellion in Sierra Leone against the established government. Because of the close relationship of her family and, in particular, her husband, with a body of people opposed to the rebels, she says that they and she were targeted by the rebels for inhuman treatment.
7. In particular, members of her family, including her husband, were, she says, killed by them and she herself was assaulted. She believes, or believed at the time of her application, that, were she to return, she would be subjected to the same treatment, in particular if she were to try to return to her home area of Sierra Leone, namely on its eastern borders.
8. I should say straight away that the Adjudicator, as it was his right, says at paragraph 44 that he was satisfied that what the appellant told him, which I have summarised, was true.
9. He goes on at paragraph 45 as follows:

"I believe that her account of her problems in Sierra Leone is true and that she has lost most of her family as she describes. The Appellant and her husband had clear connections with the SLPP and I believe that the threat from her husband's brother, Momodu Koroma, is real. This includes not only a personal threat from him but from the rebels generally due to the family history and the political beliefs held by the Appellant and her husband."

10. I pause there to say that that is a clear finding of a well-founded fear of persecution for a convention reason, which passes unchallenged before me.
11. The Adjudicator's reasons continue:

"I have considered the objective material in the Appellant's bundle together with the case of Owen. Since that case was decided the situation in Sierra Leone has not improved substantially and I am satisfied to the necessary standard that the Appellant if returned as a single mother would suffer persecution for a convention reason due to her previous political beliefs and that the risks of maltreatment under the terms of Article 3 are substantial. In addition, it would appear that the likelihood of her finding a home or accommodation or any form of support is highly remote."

12. Then in paragraph 47:

"The situation in Freetown, where the Government is said to be in control, appears to be somewhat better than the rest of the country and I have to consider the possibility of internal flight or relocation. The Appellant would be returned with no home and no family support. The Appellant in the case of Owen was a young independent fit man but the Tribunal found that he would need to be an extremely resourceful young man with considerable resource and intelligence to survive in Freetown and that it would be unduly harsh and unreasonable to expect him to relocate to Freetown at this time. Similarly, I find that in the present situation it would not be reasonable to expect the Appellant and her young child to relocate to Freetown and it would be unduly harsh to do so."

"It is in those circumstances that I find that this Appellant does have a well founded fear of persecution for a Convention reason and that the United Kingdom would be in breach of its obligations under the Refugee Convention were she to be returned to Sierra Leone."

13. I think it is necessary to point out at this stage that the hearing before the Adjudicator was made in the absence of any representation from the Secretary of State.
14. That adjudication was appealed by the Secretary of State and the matter came before the Immigration Appeal Tribunal on 9th August 2004.
15. The notice of appeal by the Secretary of State contains at paragraph 1 the following ground:

"Asylum. At paragraph 46 of his determination the adjudicator makes reference to the case of Owen and states that 'since that case was decided the situation in Sierra Leone has not improved substantially...' He uses this assessment of the background evidence to form the basis of his argument at paragraph 47 of his determination that the appellant cannot relocate to another part of Sierra Leone. It is respectfully submitted that the adjudicator's findings are not consistent with the objective country information and that he has therefore, erred in law. It is submitted that the situation in Sierra Leone has improved vastly since the case of Owen was promulgated. The improvement is clearly documented in the CIPU report (April 2003: Paragraphs 6.29-6.32). It is submitted that had the adjudicator not made this error in law, he would have dismissed the appeal."

16. It should, at this stage, be pointed out that it is common ground that the Adjudicator did not have before him the CIPU report of April 2003.
17. It is also not in issue that, had he wished to have had access to that report, it was freely available to him on the Internet and he could have obtained it and used it to assist him in his conclusion, provided that he gave the parties an opportunity to comment on those passages which he proposed to make use of.
18. The Adjudicator did not do that but proceeded to arrive at his conclusion, which was sought to be appealed to the Appeal Tribunal, on the basis of the material before him, which included substantial extracts from publications and other letters and information which are contained in the bundle papers before me. In particular, the UNHCR letter of 12th June 2003; the Operational Guidance in respect of Sierra Leone in the Immigration and Nationality Directorate report; the Amnesty International Sierra Leone report, covering January to December 2002, dated May 2003; the US Department of State Sierra Leone Country Reports on Human Rights Practices 2002, dated 31st March 2003; the UN Security Council Seventeenth SG report on the UN Mission in Sierra Leone, dated 17th March 2003; internet documents making certain indications with relation to the position of women in Sierra Leone, dated July 2003; another such report dated June 2003 and another such report dated 1st June, again 2003 and a Human Rights Watch report, dated January 2003.
19. In addition the adjudicator had before him had the report of the case of the Immigration Appeal Tribunal in Owen v the Secretary of State dated 30th July 2002, but which necessarily depended on material substantially pre-dating that decision.
20. So what The Adjudicator did was to proceed with the case without attempting to obtain the most recent CIPU report, which would have been the CIPU report 2003, on the material before him and he came to the conclusion, set out at paragraph 47 of his decision, that the present situation had not improved sufficiently to make it appropriate for this country to require the applicant to return to Sierra Leone forthwith.
21. The Immigration Appeal Tribunal allowed an appeal from the Adjudicator, quashed his decision and directed that the matter go back to another adjudicator to determine on the facts.
22. The ground on which the Tribunal did that is set out at paragraph 14 of their decision as follows:

"There are in immigration appeals certain well accepted sources of objective material and in particular we have in mind the US State Department reports, Amnesty international reports and the Home Office CIPU Reports. These reports are all available on internet and can be, and frequently are, downloaded by counsel and other representatives who appear before us and produced at hearings without the necessary notices being given. It is generally accepted practice within the Tribunal, in our view, that reports which are in the public domain such as those to which we have referred, are normally accepted during the course of hearing without the necessary 14 day notice being given. The CIPU Report is relied on heavily by Adjudicators and the Tribunal and we observe also by the Court of Appeal, and in the circumstances of this case, absent any representation from the Home Office, we would have thought it would be incumbent upon the Adjudicator to consult the CIPU Report, giving due notice of his intention to do so to the respondent's representative at the hearing. He has a duty to consider all relevant objective information that is available which would include objective information which is in the public domain and, bearing in mind particularly the age of the Owen determination and specifically the age of the material upon which that determination relied, we would consider it incumbent upon the Adjudicator to have considered the 2003 CIPU Report. This would come within the definition of 'important evidence which had been overlooked' referred to in E and within the ambit of the second proviso contained in Ladd v Marshall, namely that 'if given' it (the evidence) probably would have had an important influence on the result'."

23. The relevant passage in the CIPU 2003 report is at paragraph 6.29, where there are described a process in Sierra Leone of the return of internally displaced persons from camps which had been established for them, to their normal living areas and in particular describing the situation in the camps that remain and drawing attention to the fact that conditions in those camps had substantially improved.
24. There are, however, indications elsewhere in this report, for instance, at paragraph 6.37, that violence against women, is common:
25. As I understand the submission for the appellant it is this: it is accepted that the facts of the present case are subject to the Act of 2002, which requires that for the Employment Appeal Tribunal to set aside the finding of an adjudicator, it must do so on grounds of error of law and cannot do so on grounds of error of fact alone.
26. It is submitted that the error of law in this case was that the Adjudicator, in the absence of representation from the Secretary of State, ought to have realised that the CIPU report 2003 on Sierra Leone, which was available on Sierra Leone, would have given him assistance in coming to conclusion as to the present state of affairs in that country.
27. My attention was drawn to the decision of Collins J in the Immigration Appeal Tribunal, in the case of MNM and in particular to the guidelines included as an annexure to the judgment and to paragraph 9 of the ninth of those guidelines, which reads as follows:

"There are documents which are now available on the Internet and which can be considered to be in the public domain, which may not be included in the bundle before the special adjudicator. We have in mind the US State Department Report, Amnesty Reports and Home Office Country Reports. If the special adjudicator considers that he might well wish to refer to these documents in his determination, then he should so indicate to the representative and invite submissions in relation thereto."

28. It is said that the Adjudicator in this case was guilty of an error of law in failing, of his own motion, to require the production of the CIPU 2003 report, of which he must have been aware, and which he should have realised would contain material that would assist him in the conclusions that he was to arrive at, and to bring that to his own attention, notifying the parties at the same time that he was going to do so and the passages in it upon which he might rely so that they could comment.
29. In the decision of the Immigration Appeal Tribunal in the case of MA -- this is a "starred" appeal -- where the Tribunal was presided over by Ouseley J, the following passage in the decision of the Court appears, starting at paragraph 14:

"The principles in E are set out in paragraph 92, and the Ladd v Marshall principles are summarised in paragraph 23(ii) as follows:

"92. In relation to the role of the IAT, we have concluded:

" (i) The Tribunal remains seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;

"(ii) following the decision, where it was considering the application for leave to appeal to this Court, it had a discretion to direct a rehearing; this power was not dependent on its finding an arguable error of law in its decision;

" (iii) however, in exercising such discretion the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.

"23(ii) New evidence will normally be admitted only in accordance with 'Ladd v Marshall principles' [but] applied with some additional flexibility under the CPR.... The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it would probably have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party's legal advisers provides no excuse ...

"The Court of Appeal pointed out that it was not dealing with the current jurisdiction of the Tribunal [that is the Court of Appeal in E] which is limited to hearing an appeal on a point of law. However, we see no reason why the general principles governing the reception of evidence which was not before the Adjudicator should be different. There is no reason why the first and third principles should be changed. The application of the second principle will be different. When applied in the context of an appeal on the ground of error of fact or law, the fresh evidence has to be such that it would probably have had an important influence on the result of the factual or legal conclusions of the Adjudicator. When applied in the context of error of law alone, the test for the relevance of fresh evidence which could and should have been before the Adjudicator cannot now be that it assists a challenge to factual conclusions such as credibility findings or other personal circumstances which are very much matters for the Adjudicator. The application of the second principle now requires that the evidence be relevant to showing that the Adjudicator made an error of law, which probably had an important influence on the result.

"It would not normally be possible to show by evidence which should have been before the Adjudicator but had not been produced to him, that he had made an error of law. (Even less so would it normally be possible that evidence related to subsequent events, or which could not have been before the Adjudicator with due diligence for other reasons, could show an error of law in his decision.) Of course there may be exceptional factors in an asylum or human rights case, which mean that evidence which could and should have been before the Adjudicator can be admitted on appeal.

"This case illustrates the principles. Miss Finch for the Appellant sought to introduce fresh evidence; this is a case where the Tribunal's jurisdiction is limited to an error of law; she accepted that the evidence had to be of relevance by showing an error of law, as a result of E. She said that it was relevant because it showed an error of fact of such a nature as to constitute an error of law in the way identified in E, paragraph 66. It would not however be possible to say that it was relevant as showing an error of fact, short of an error of law. It could not be argued that a material consideration has been ignored when that consists of material which was never put before the Adjudicator, whether or not it could with reasonable diligence have been introduced before him, unless it falls within the category defined in E or other exceptional circumstances applied."

30. It seems to me that that passage is of great guidance in this case.
31. The Adjudicator has proceeded, to examine the question of what the situation in Sierra Leone was, so as to come to a conclusion whether it would be a breach of the applicant's Article 3 rights to return her in those circumstances. He has done so looking at the material before him and has come to a conclusion that it would not be appropriate to make such an order to return her.
32. It seems to me to be impossible to say that the Adjudicator committed any error of law in so doing so. There was sufficient evidence before him to support his conclusion.
33. It then comes to light that there was a CIPU report. In the present case it is said that everybody should have realised there would have been such a CIPU report. It is then sought to appeal the Adjudicator's decision and to introduce the CIPU report as additional evidence under Ladd v Marshall principles.
34. It seems to me, on the test promulgated by the Employment Appeal Tribunal in the MA case, which I gratefully adopt, that unless that additional material, namely the CIPU report, fell within the last sentence in paragraph 17, identified in E in paragraph 66, that that material would not have been admissible because it was not evidence tending to establish an error of law by the Adudicator.
35. I therefore turn to the decision in E at paragraph 66. This is an extract from the judgment of Carnwath LJ in that case, where he says this:

"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in cooperating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. [Undoubtedly that would apply to a CIPU report]. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."

36. In my judgment, the CIPU report undoubtedly falls into that first category, or the absence of the CIPU report from the hearing before the Adjudicator falls into that first category, the fact of being a mistake as to the availability of evidence on a particular matter.
37. The appellant is in difficulties under Lord Justice Caunwath's the third head:

"Thirdly, the appellant (or his advisers) must not have been responsible for the mistake." ie the abscence of the evidence.

38. I am told that it frequently is the case that, by reason of staff shortages and other economies, the Secretary of State is often not represented at hearings before adjudicators.
39. That does not seem to me to be a reason why the Ladd v Marshall rules should be amended for hearings in front of adjudicators. It seems to me that hearings before adjudicators should proceed on the normal adversarial principles;
40. It cannot be an error of law by an adjudicator for him to fail to secure access to material which might be relevant to the decision which he is being called upon to make.
41. An adjudicator is in no way dissimilar to any other judge. It is the primary duty of a judge to come to the necessary conclusions to decide his case, including conclusions of fact, on the evidential material before him.
42. He is in no way obliged himself to investigate and conduct enquiries as to whether further evidential material would be available, which is of relevance to the decision before him.
43. He may do so, but, if he does so, he should not make use of that material unless he gives to the parties before him an opportunity to know what further material he is relying on and how he proposes to use it, so that they can comment on that material and seek to persuade him, if they wish to do so, that it is not reliable material and that he should not use it. But he is under no obligation to do that. His obligation is to decide the case on the basis of the evidence adduced by the parties in his court.
44. Those rules, it seems to me, should apply to adjudicators in immigration cases just as to any other court.
45. It follows that where an adjudicator comes to a factual decision on the basis of evidence before him and the evidence before him is capable of supporting that decision, it cannot be said that, in arriving at the resulting conclusion of fact, the adjudicator is in any sense committing an error of law.
46. It seems to me, therefore, that in this case the Immigration Appeal Tribunal's admission of the CIPU 2003 report and their use of it as evidence that in fact the situation in Sierra Leone had, as they put it, vastly improved so as to make it reasonable to send this woman and her child back to Sierra Leone, was illegitimate and did not comply with Ladd v Marshall rules and in particular did not comply with the decision of the Employment Appeal Tribunal in the MA case relying as it did, on the decision of the Court of Appeal in E.
47. It cannot be said that the admission of that evidence assisted the Tribunal in concluding that the Adjudicator had committed an error of law.
48. It follows, it seems to me, that the Immigration Appeal Tribunal's conclusion that the Adjudicator's decision must be quashed and the matter sent back to be heard by a further tribunal was wrong and ought to be set aside, and that the decision of the Adjudicator should stand.
49. MR OMERE: My Lord, naturally I will be applying for costs in this matter.
50. MR JUSTICE EVANS-LOMBE: Can you resist an order for costs?
51. MISS GREANEY: No, I do not.
52. MR JUSTICE EVANS-LOMBE: So this appeal must be allowed and the Secretary of State must pay the costs.
53. MR OMERE: I am grateful, my Lord. My Lord, I do apologise: a detailed assessment.
54. MR JUSTICE EVANS-LOMBE: A detailed assessment, yes.