|
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
|
|
Lord Eassie
Lord Menzies
Lord Emslie
|
[2008] CSIH 62
XA25/06
OPINION OF THE COURT
delivered by LORD EASSIE
in
Application for leave to Appeal
by
N B E (Eritrea)
Appellant;
against
A decision of the Asylum
and Immigration Tribunal promulgated on 31
October 2005
_______
|
Act: Caskie; Drummond Miller, WS.
Alt (The Secretary of State for the Home Department); Lindsay;
Solicitor to the Office of the Advocate General for Scotland
26 November 2008
Introduction
[1] The appellant
is an Eritrean national who arrived in the United Kingdom on 1 September
2000. Initially she was a dependant on a claim for
asylum made by her sister, but on 7 May 2004 she applied directly for asylum in
the United Kingdom.
The Secretary of State for the Home Department refused to grant her
asylum. She therefore exercised her right under section 82 of the Nationality,
Immigration and Asylum Act 2002 ("the 2002 Act") to appeal to an
adjudicator.
[2] Before the
adjudicator the appellant advanced a claim to remain in the United Kingdom on the basis of both the 1951
Refugee Convention and the European Convention on Human Rights as incorporated
into domestic law by the Human Rights Act 1998.
Put very briefly, the appellant's description of the circumstances in
which she left Eritrea was to the effect that her father
had been clandestinely active with the ELF.
When certain close relatives were killed, he and his daughters left for Ethiopia, where the father thereafter
suddenly disappeared and has not been found again. The adjudicator was not persuaded by the
account given by the appellant that she had any well-founded fear of
persecution for a refugee convention reason and he refused the asylum
claim. He did however consider that
there was a real risk that if the appellant were returned to Eritrea she might be maltreated in a way
which would infringe Article 3 ECHR. The
adjudicator therefore allowed the appeal on human rights grounds.
[3] The Secretary
of State then appealed to the Immigration Appeal Tribunal ("IAT") against the
adjudicator's allowance of the human rights appeal. In terms of section 101 of the 2002 Act
appeal to the IAT was confined to an appeal on a point of law. The appeal by the Secretary of State was not
determined prior to the coming into operation of the Asylum and Immigration
Tribunal ("AIT") and accordingly it became subject to the transitional
provisions regarding pending IAT appeals.
For present purposes nothing really turns on those provisions since it
is accepted by both parties to this appeal that on a reconsideration by the AIT,
as a first and essential requirement, the AIT had to decide whether the
adjudicator had made a material error of law - rule 31(2)(a) of the Asylum
& Immigration Tribunal (Procedure) Rules 2005. The AIT held that the
adjudicator had made a material error of law;
it then proceeded to allow the appeal by the Secretary of State; and to reverse the
adjudicator's decision. (There was no
cross appeal by the current appellant respecting the adjudicator's refusal of
the asylum claim). The central issue in
this appeal is whether the error claimed in the Secretary of State's grounds of
appeal, and subsequently accepted by the AIT, was properly a material error of
law.
The adjudicator's decision
[4] With that introduction to this appeal it
is convenient to turn to the basis of the adjudicator's decision, in so far as
devoted to the human rights claim. In
the course of her evidence before the adjudicator, the appellant disclosed that
when she left Eritrea she was 22 years of age. That was an age at which, it was evident from
the background materials, she would have been liable
to conscription for national service. She
stated however in evidence that she had not received any papers calling her up
to perform national service. The hearing
before the adjudicator was held on 18 October 2004.
There was available to the adjudicator a number of recently published
reports on the human rights situation in Eritrea, which he duly considered.
[5] First, there
was an Amnesty International document dated 26 May 2004.
The adjudicator discusses this in paragraphs 45 and 46 of his determination:-
"45. There
was produced to me an Amnesty International document being an extract from the
full annual report and this indicated that torture continued to be used against
some political prisoners and as a standard military punishment. Army deserters and conscription evaders were
said to be tortured in military custody.
They were said to be beaten, tied hand and foot in painful positions and
left in the sun for lengthy periods.
Reference was made to prisoners being kept in overcrowded shipping
containers, in unventilated, hot and unhygienic conditions and to prisoners
being denied adequate food and medical treatment.
46. The
Amnesty document from which I am quoting is dated 26th May, 2004 and
in relation to refugees it says that most of the 100,000 or more Eritrean
refugees in Sudan resident there for up to 30 years appealed against losing
their refugee status as a result of the UNHCR cessation of refugee status in
2002 for pre-1991 and 1998-2000 war refugees.
Amnesty noted that some 232 Eritreans who were deported by Malta in September/October 2002 were
detained on arrival in Eritrea. Women, children and the elderly
were reportedly released but the remainder were tortured and detained without
charge or trial."
There was also a UNHCR document of January 2004, which also included
discussion of the fate of the Eritreans deported from Malta to whom the Amnesty Report had
referred. The adjudicator treats this
report in paragraphs 50-52:
"50. There
was produced to me the UNHCR position on return of rejected asylum seekers to Eritrea.
UNHCR recommended in January 2004 that asylum claims submitted by
Eritrean asylum seekers should undergo a careful assessment to determine their
needs for international protection.
UNHCR recommended that states refrain from all forced returns of
rejected asylum seekers to Eritrea and grant them complementary forms
of protection and stayed until further notice.
51. According
to the UNHCR document 233 persons were deported from Malta to Eritrea.
170 of them were reported not to have sought asylum whereas 53 had been
rejected in the asylum procedure (which was not known to UNHCR at the
time). Apparently, those deported to Eritrea were reportedly arrested immediately
on arrival in Asmara and taken to detention incommunicado with the
Eritrean authorities neither acknowledging the detentions nor revealing the
whereabouts of the detainees to their families or to the public. Subsequent reports suggested that those with
children and those over the age for conscription may have soon afterwards been
released but the remainder were kept in incommunicado
detention and secret places described as halls made of iron sheets and
underground bunkers. According to
different sources, UNHCR say that the detainees were deprived of their
belongings, subjected to forced labour, interrogated and tortured.
52. I
appreciate that Article 3 involves a high threshold but I consider that if
someone were at risk of suffering incommunicado detention and being treated in
the manner referred to in the UNHCR document in relation to those returned from
Malta, that the Article 3 threshold would be met."
There were also reports from the US State Department and a UK fact finding mission to which the adjudicator
refers in paragraph 53:
"53. Eritrea is a country which appears to have a
poor record on human rights. The US
State Department report apparently referred to Eritrea continuing to commit serious
abuses. A UK fact-finding mission to Eritrea published its report in April of
2003 and stated that one western embassy in Asmara had described the general human
rights situation within Eritrea as quite bad from the point of view
that dissidents were taken into detention without trial and there was a general
lack of democracy."
[6] In addition
to those documents there was before the adjudicator a recent decision by the
IAT, chaired by the Honourable Mr Justice Ouseley, namely MA (Female draft evader) Eritrea CG [2004] UKIAT 00098. It will be necessary to examine this decision
more closely at a later point but for the present we simply set out what the adjudicator
says about MA:-
"47. There was produced to me a copy of the decision of the
Immigration Appeal Tribunal in 00098. Paragraph 16 of the Tribunal
determination refers to the UNHCR 'position on the return of rejected asylum
seekers to Eritrea'.
Reference was made to the reports of severe ill-treatment against
deserters and evaders, to the widespread searches and the fatalities which had
in the past resulted from resistance during such searches. Information was apparently provided about
those who were deported from Malta. It seems that detention took place
without the detention being acknowledged.
The conditions of detention were said to be congested, unsanitary and
uncomfortable leading to disease and malnutrition which had led to some
deaths. There were reports of some being
tortured.
48. The
Tribunal said in paragraph 17 of their determination that UNHCR had concluded
that the human rights situation had deteriorated in the last two years, that
the deportees from Malta may have faced persecution and that it could not be
excluded that future deportees would not face persecution (sic). Asylum claims were
said to require careful consideration and UNHCR had recommended against the
forced return of failed asylum seekers and in favour of them being granted
another form of temporary protection.
49. The
Immigration Appeal Tribunal said that the UNHCR recommendation for temporary
protection while the situation was reviewed in mid-2004 was weighty."
[7] Having
considered all these materials the adjudicator expressed his conclusion in
paragraph 55 as follows:
"55. I
consider that there is a real risk that these appellants on return might be
treated in the same way as the individuals who were deported from Malta.
I consider that an Article 3 claim by these appellants is well-founded. I shall allow the human rights appeals under
Article 3."
The appeal/reconsideration
[8] As already mentioned, the Secretary of
State sought and was granted leave to appeal against the allowance of the human
rights claim. The grounds of appeal are
in these terms:
"1. It
is submitted that the objective evidence described at paragraphs 48, 49 and 50
does not demonstrate a real risk or reasonable likelihood of mistreatment
contrary to Article 3 of the ECHR to this claimant and in the event of her
return to Eritrea. The adjudicator has
thus applied the wrong standard of proof in allowing this appeal.
2. The
adjudicator inferred at paragraph 52 that returnees to Eritrea face a real risk of article 3
mistreatment. It is submitted that this
inference is unsupported by the objective evidence.
3. At
paragraph 55 the adjudicator has not explained why the claimant would face any
risk of Article 3 mistreatment on her return to Eritrea.
4. It
is submitted in light of the foregoing that the adjudicator has erred in law
and that the approach of the Tribunal in SE
Eritrea [2004] 00295 is to be preferred".
[9] At this point
it is appropriate to note that between the date of the hearing before the adjudicator
and the promulgation of the adjudicator's decision on 17 November 2004,
the IAT published a decision SE
(Deportation - Malta - 2002 - General Risk) Eritrea CG [2004] 00295. The Tribunal in that case had before it most
of the materials before the Tribunal in MA
but also some additional, more recent, material. Reaching a different assessment of those
materials from that reached in MA,
the differently constituted Tribunal in SE
stated (paragraph 27) that:
"(1) We do not consider that the
Tribunal determination in MA was intended to establish that all
returnees to Eritrea are at risk;
(2) the Tribunal position on this issue before and after this
decision remains that the mere fact of being a returnee to Eritrea does not mean that someone will face
a real risk of serious harm".
[10] While the
Secretary of State's grounds of appeal made reference to this decision, it was of
course not before the adjudicator at the hearing, having only been published after
the date of the hearing. In its decision
in the present case, to which we shall come in greater detail, the AIT said
expressly, in paragraph 9, that the oversight of the adjudicator to note
the decision in SE following the
closure of the hearing (which, if he had noted it, would have indicated a need
to reconvene the hearing), did not amount to a separate error in law. Before us, counsel for the Secretary of State
similarly did not suggest that the omission of the adjudicator to note the
publication of this decision after the date of the hearing and to re-open the
hearing constituted any error of law.
[11] Accordingly,
whether the adjudicator committed what may properly be categorised as an error
of law has to be assessed having regarding only to what was available to him at
the time of the hearing, which did not include the Tribunal decision in SE.
[12] Parties were at
one in considering that the basis on which the AIT in the present case bore to
identify a material error of law by the adjudicator was to be found essentially
in paragraph 6 of its determination to the following effect:
"We consider that the respondent's
grounds of appeal are made out. There
are manifest shortcomings in the Adjudicator's reasoning. While his determination does contain an
explanation for why he considered that the Maltese returnees had met with
persecutory treatment, he nowhere explains the basis of his assessment that the
two appellants would meet a similar fate.
Secondly, to the extent that he sought to base himself on Tribunal case
law, he was correct to note that the Tribunal Country Guideline case of MA had
expressed concern about the significance for returnees of the fate of the
Maltese returnees. But that decision was
not authority for the proposition that all returnees or female returnees of
draft age were at risk. As the Tribunal has
noted in subsequent cases, SE, GY (Eritrea - Failed asylum seeker) Eritrea [2004] UKIAT 00327 and IN (Draft evaders - evidence
of risk) Eritrea CG [2005] UKIAT 00166 in particular,
MA
only found a real risk to female draft evaders. In our view the Adjudicator's mistaken
approach to the significance of the fate of the Maltese returnees constituted a
material error of law."
The AIT then went on to say in paragraph 7 that a factor
contributing to the adjudicator's "misreading" of MA was his failure to
note the SE case, but as already mentioned, the AIT then confirmed its
view that the failure to note that case was not a "separate" error in law.
The parties' respective
positions
[13] Counsel for both parties gave us well
presented submissions, with helpful reference to the statutory provisions; case law on what might constitute an error in
law; the sequelae to SE;
and the precision or specification that might be required in grounds of
appeal. Unfortunately, it was not
possible to conclude the submissions at the diet of the hearing of the appeal
initially set down, which had to be continued to a further diet when all the dramatis personae could be reassembled.
This is but one factor, among others, which has contributed to the
highly regrettable delay in the disposal of this appeal. In the event however, once the issues were
teased out and tested in the debate before us we think that the parties'
positions can be summarised relatively shortly.
[14] In essence,
counsel for the appellant disputed that there was no evidential basis for the
adjudicator's decision that returning the appellant to Eritrea presented a risk of a human rights
infringement, contending instead that the materials in the various reports respecting
the Maltese returnees could properly justify the adjudicator's concern and his
conclusion. The conclusion which he
reached was one which he was entitled to reach.
Further, the decision in MA,
if properly understood and analysed, was to the effect that the applicant in MA was in a similar factual situation to
that of the present appellant since the claim by MA to have been called up was rejected. The adjudicator could not be faulted for
following that "country guidance" case.
It was apparent that, having considered the material before the Tribunal
in MA, and the conclusion reached by
the Tribunal in that case, the adjudicator reached the same conclusion, namely
that in the circumstances then obtaining, having regard to such reports as were
available, there was a real risk that persons of an age at which they were
liable to conscription and who were failed asylum seekers might be subject to a
similar fate. The adjudicator's
reasoning was amply explained and the "absence of reasons" ground which the AIT
had sought to identify in the present case failed.
[15] Likewise in
essence, the submission for counsel for the Secretary of State came to be
firstly that the adjudicator had failed to give adequate reasons for
considering that this appellant was at risk.
In that respect counsel sought to examine some of the reported content
of the materials available to and discussed by the adjudicator, and by the
Tribunal in SE. The adjudicator, he said, had failed to have
regard to the information that the women, children and elderly were released,
although he accepted that on some reports that only occurred after three months
of detention. The second principal
submission was to the effect that the adjudicator was wrong to think that the
decision in MA might apply to anyone
other than a clearly identified "draft evader". In other words, he advanced a contrary view of
MA, adopting SE.
Discussion
[16] As an important element in its conclusion
that the adjudicator had fallen into a material error of law the AIT in the
present case advanced the view that the adjudicator had misread or
misunderstood the decision in MA. According to the AIT, that decision applied only
to "draft evaders", and was not authority for the view that all female
returnees of draft age were - at the time of the hearing - at risk. We find it convenient first to consider this
aspect of the of the AIT decision.
[17] As counsel for
the appellant pointed out to us, in MA
the applicant for asylum advanced her claim on the basis that she had been
required to report for compulsory national service, and had thus been called
up, before she left Eritrea.
Importantly, however, as counsel also pointed out, the adjudicator in
that case rejected the claim by MA
that she had received any call up papers.
The case therefore did not proceed upon the
factual basis that MA was a person
who had been called up for national service and who had left the country to
avoid that call up. While we note that
the adjudicator in MA thereafter
proceeded on the basis that she would treat the appellant as either a draft
evader or simply a person who required to complete military service on her
return - see paragraph 3 - as counsel for the appellant pointed out, the latter
basis equiparated with the position of the appellant in the case before us,
namely someone who might be required to complete national service.
[18] Having noted
the adjudicator's willingness to treat the claim on alternative bases, the IAT in
MA thereafter discussed the claim to
protection under the refugee Convention on those alternative bases. It reached its conclusion that the claim
under that convention should be rejected in paragraph 22:-
"22. The
Appellant would not be persecuted for a Convention reason; her claim to a religious objection has
been properly rejected and there is no complaint which can be made about
that. There is no evidence that her
illegal exit and failure to respond to the call up papers would lead her to
have any political opinion imputed to her which would put her at risk of
persecution. The issue is whether she
would be at real risk of treatment which breached Article 3."
[19] The IAT then turned
to the human rights aspect of a possible breach of Article 3 ECHR and said
this:
"23. The
UNHCR recommendation for temporary protection while the situation is reviewed
in mid 2004 is weighty. But the
material which is the most troubling is that which concerns the forced return
from Malta of those who were of draft age, and
were in part at least failed asylum seekers.
They appear to be held incommunicado,
without charge or visits in conditions which do not appear to be simply the
spartan ones to which CIPU referred for civilian prisons. Although the UNHCR Report refers to 'dwellings' where they are detained, the
conditions which are described include forced labour, beatings, torture, and a
lack of medical care, food or sanitation leading to disease and in some cases
death. These conditions are quite likely
to involve a breach of Article 3.
Because this evidence relates to the experience of those who were
actually returned, significant weight has to be given to it. We do not know all
of their circumstances, why they left Eritrea and what measures were taken to
prepare their return with the Eritrean authorities. The evidence is credible. There is no other evidence as to what happens
to those who are returned and no better evidence as to what happened to those
returned from Malta.
24. At
present it appears to us from that evidence that there is a real risk that the
Appellant would be subjected the same treatment as those deported from Malta and that her rights under
Article 3 would be breached. That
position may change with the UNHCR review or with other evidence as to how
someone in the position of the Appellant would be treated on return, or other
evidence as to the position of those deported from Malta.
25. Accordingly
her appeal against the refusal of asylum is dismissed and her appeal in
relation to human rights is allowed."
[20] We have much
difficulty in understanding why what was said in those paragraphs must be read
as applicable only to "draft evaders" - that is to say, those who had left Eritrea after being served with call-up
papers. The UNHCR recommendation for
temporary protection was made respecting failed asylum seekers generally. Moreover, what particularly weighed with the Tribunal
in MA was the reported fate of those
recently deported from Malta to Eritrea.
The Tribunal noted that the deportees were "of draft age, and were in
part at least failed asylum seekers".
Importantly it does not appear from what is narrated of the terms of the
UNHCR report in question that those who were deported from Malta were to any material extent "draft
evaders". Counsel for Secretary of State
submitted to us that since the asylum issue had been considered by the IAT on
the alternative bases (cf paragraphs 6 and 20) that the applicant MA was either
a draft evader or simply someone of draft age, the passages relating to her
human rights claim must be read as applying only with the inclusion of the
former basis, namely that of her being a person who was a "draft evader", but
to the exclusion of the latter basis. We
are unable to accept that submission. No
doubt the refugee claim was considered on alternate bases but the fact is that
the adjudicator rejected the testimony from MA that she had been served with any
call up papers. What moved the Tribunal
to uphold the human rights claim was essentially the fate of those deported
from Malta; those deportees were not
"draft evaders" and nowhere in its discussion of the human rights claim in MA did the Tribunal suggest that the
upholding of the human rights claim proceeded upon the applicant, MA, being a
"draft evader". As the Tribunal in MA remarked of those deported from Malta, they, the Tribunal, "do not know
all of their circumstances, why they left Eritrea and what measures were taken to
prepare their return with the Eritrean authorities."
[21] The view which
we thus take of the decision of the IAT in MA
does not accord with what a differently constituted panel of the IAT stated
respecting the MA decision in its later
determination in SE. For the reasons already indicated (in
contrast to what is said or indicated at paragraph 19 of the decision in SE), we do not consider that on a proper
reading of the MA decision the
references in paragraphs 6 and 20 of the MA
decision, occurring in the discussion of the asylum claim, are properly to be
carried forward into the very different area of the human rights claim which
was upheld on reports of the fate of those deported from Malta. In our view, on a reasonable reading of the
decision in MA, what was said in that
respect was not confined to "draft evaders" but applied more generally.
[22] Our attention
was drawn to the first sentence in paragraph 20 of the Tribunal's decision
in SE -
"As already noted, the objective
materials before the Adjudicator when he dealt with this case, albeit they did
contain references to and commentary on the 2002 events affecting some 220
Maltese returnees, did not compel a conclusion that returnees generally were at
risk...."
This sentence is possibly ambiguous as to whether it refers
to the adjudicator in SE or the adjudicator
in MA but, in either event, we agree
with counsel for the appellant in his submissions to us that the question for
the tribunal in SE was not whether
the materials before the tribunal in MA
"compelled" a conclusion, but the very different question whether the materials
entitled the Tribunal in MA to draw
the conclusions which the Tribunal drew.
Further, and importantly, it is to be observed that the guidance which that
Tribunal sought to give in SE
proceeded albeit on a somewhat "fudged" basis on the basis of further, more
recent, materials respecting the situation in Eritrea.
[23] We therefore
reject the contention that the adjudicator dealing with the present appellant's
claim committed an error of law in his reading, or his interpretation, of the
relevant part of the IAT determination in MA. Notwithstanding what the Tribunal in SE subsequently stated in that later
decision, with the possible benefit of further materials, we consider that the adjudicator
in this case was entitled to found upon the reasoning in MA as being supportive of his decision.
[24] The remaining
ground upon which it is said that the adjudicator fell into material error of
law is a complaint of deficiency in the giving of reasons as to why the
appellant was at risk, were she to be returned.
This ground is in many ways interlinked with the contention that the adjudicator
mis-read or mis-interpreted the reasoning of the Tribunal in MA in so far as it dealt with the human
rights aspects of the claim by MA.
[25] In our view
the adjudicator's decision in the present case is perfectly intelligible and no
informed reader could be in any real doubt as to the basis of his
decision. As respects his consideration
of the human rights aspect of the case he had before him the various reports
which we mentioned earlier. It is
evident that he had particularly in mind the fate of those deported from Malta
as discussed in the reports before him, especially the UNHCR report and the
UNHCR recommendation against all forced return of asylum seekers for the time
being. As we have already indicated, the
deportees from Malta were not "draft evaders" but
included people of both sexes whose age made them liable for conscription and
failed asylum seekers. The appellant was,
of course, in that age band and, if returned, would be a failed asylum
seeker. The adjudicator therefore had
before him materials which might justify his conclusion that if the appellant
were to be forcibly returned there was a real risk that she might suffer
maltreatment similar to that suffered by those deported from Malta.
In our view the conclusion was one which the adjudicator was entitled to
reach. He reached it on parity of reasoning
with that of the IAT, including its president, in its decision, on basically
the same materials, in MA. Put shortly, while those materials may not
have dictated, as an inevitable conclusion, that the appellant would be
mistreated in the same way as the returnees from Malta, they nonetheless
allowed the conclusion, drawn by the adjudicator, that there was a real risk of
that happening. The same materials had
been similarly construed by the Tribunal in MA. In these circumstances we consider that the adjudicator
was entitled to reach the decisions which he did.
[26] For all of
these reasons we do not consider that the adjudicator's decision was flawed by
any material error of law. The appeal
must therefore be allowed.
[27] There was
discussion before us as to the appropriate disposal in the event of our
allowing the appeal. Counsel for the Secretary
of State moved us, in that event, to remit the case to the AIT for
consideration de novo on the basis
that the adjudicator's decision was as he put it "not a very satisfactory decision". Quite what he meant by that
was a topic upon which he appeared unwilling to elaborate. Counsel for the appellant submitted that in
the event of the AIT's decision being erroneous, technically one had to
consider whether the Secretary of State's grounds of appeal properly raised any
legitimate issue which had not been dealt with by the AIT and which might merit
reconsideration by the AIT. But, in the
event, were we to decide as we have effectively held, there was no substance in
the grounds of appeal and bearing in mind the difficulties of litigating
matters decided four years ago, it would be proper for the Court to exercise
its power under section 103B(4)(b) and simply decide that no error in law
existed.
[28] We are unmoved
by the submission from counsel for the Secretary of State that matters should
be remitted to the AIT on the basis that the adjudicator's decision was "not a
very satisfactory decision". We do not
consider that there is anything in the Secretary of State's grounds of appeal which
in any way goes beyond the issues argued before us. Accordingly, we simply decided that the
adjudicator's decision was not vitiated by any error of law and should stand ex tunc.
We say nothing about its practical standing now in light of the changing
circumstances in Eritrea and what may have developed in the
terms of the appellant's personal circumstances, or her immigration future in
the light of this decision.
Decision
[29] We conclude that we should grant leave to
appeal, allow the appeal and simply quash the decision of the AIT of 31
October 2005.
