Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 88
P737/10	OPINION OF LORD BRODIE in the Petition of TW Petitioner: against Judicial Review of Decisions of the Secretary of State for the Home Department dated 14 April 2010 ­­­­­­­­­­­­­­­­­ ________________

Petitioner: Komorowski; McGill & Co.

Respondent: John MacGregor; Office of the Solicitor to the Advocate General

24 May 2011

Introduction

[1] This is an application for judicial review of decisions of the respondent, the Secretary of State for the Home Department, as intimated by notice of decision to refuse to revoke a deportation order dated 14 April 2010 (the "notice") and letter giving reasons to revoke a deportation order, also dated 14 April 2010 (the "decision letter").

[2] The petitioner is a national of Eritrea. He has been taken to have been born on 16 January 1982, although he has not given consistent evidence as to his age. He has what counsel who appeared on his behalf described as an unattractive immigration history displaying a flagrant disregard for border controls. Consideration of the petition (in its un-amended and amended form) and the decision letter confirms the accuracy of counsel's description. The history contains features that section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 requires to be taken into account as damaging the petitioner's credibility in relation to any statement made by him in connection with an asylum or human rights claim on his behalf.

[3] On 11 December 2006 the petitioner entered the United Kingdom. He claimed asylum. That claim was refused on 24 January 2007 on the basis that he was not entitled to asylum. The petitioner appealed the decision. By determination dated 15 March 2007 and promulgated on 2 April 2007 the appeal was dismissed. The petitioner was found not to have given a credible account of the events which caused him to leave Eritrea and accordingly the Tribunal did not accept that he had left Eritrea contrary to Eritrean law, a point which came to assume central importance for reasons to which I shall return. The petitioner claimed asylum again on 20 July 2007, this time in the name of Aton Kahsay, purporting to be a minor. That claim was withdrawn. The petitioner was convicted on 13 December 2007 and again on 7 April 2008 in respect of possession of false identity documents and on 9 March 2010 for assault. On 7 December 2009 he left the United Kingdom in breach of bail conditions and went to the Republic of Ireland.

[4] On 8 July 2008 the respondent made an order for the deportation of the petitioner from the United Kingdom. That was appealed. By determination dated 9 October 2008 and promulgated 13 October 2008 the appeal was dismissed. On 21 August 2009 further representations were made on behalf of the petitioner, relying on the decision of the Asylum and Immigration Tribunal in MA (Draft evaders - illegal departures - risk) Eritrea CG [2007] UKAIT 00059 (which I shall refer to as MA (Eritrea))and seeking revocation of the order.

[5] In terms of the notice and the decision letter the respondent decided not to revoke the deportation order. In paragraphs 29 to 30 of the decision letter she certified the petitioner's asylum claim (under the Geneva Convention relating to the Status of Refugees as amended by the 1967 Protocol) and his human rights claim (under the European Convention on Human Rights) as "clearly unfounded" in terms of the Nationality Immigration and Asylum Act 2002 section 94 (2). Whereas the decision not to revoke a deportation order triggers a statutory right of appeal in terms of section 82 of the 2002 Act, the effect of certification is that the petitioner's right of appeal cannot be exercised while he is in the United Kingdom.

[6] The respondent proposes to deport the petitioner from the United Kingdom to Eritrea which is his country of nationality and former residence. The petitioner has no right to remain in the United Kingdom other than what flows from his asylum claim and his human rights claim. He would wish to rely on these claims in an appeal to the First-Tier Tribunal (Immigration and Asylum Chamber) in terms of section 82 (1) and (2) (k) of the Nationality, Immigration and Asylum Act 2002. As I have already noted, the petitioner retains a right of appeal and no point is taken by the respondent as to whether he might properly be regarded as a refugee for the purposes of the Geneva Convention, but certification of his claims as "clearly unfounded" disentitles the petitioner from pursuing a section 82 appeal against the respondent's refusal to revoke the deportation order from within the United Kingdom: 2002 Act section 94 (2). The Note of Argument for the petitioner understandably (because in practice it will be very difficult to pursue) describes the possibility of appeal from outside the United Kingdom as "scant consolation": L [2003] 1 WLR 1230 at para 54 and "fairly useless": Venediktov [2005] EWHC 2460 (Admin) at para 14; hence the petitioner's wish to reduce the certification through this application for judicial review.

[7] The application came before me for a First Hearing on 10 February 2011, a previous First Hearing fixed for 27 October 2010 having been discharged. Mr Komorowski appeared for the petitioner. Mr MacGregor appeared for the respondent. Argument was not completed on 10 February 2011 or the succeeding day and therefore the hearing was continued to 14 March 2011 when it was concluded. Prior to the hearing before me, parties had lodged Notes of Argument. The Note of Argument for the petitioner is number 15 of process. The Note of Argument for the respondent is number 14 of process. In the course of the hearing there was lodged a Supplementary Note of Argument for the petitioner, number 17 of process. These Notes of Argument were detailed. They were of very considerable assistance. I would gratefully refer to them as statements of the parties' respective submissions.

Country guidance

[8] Put very shortly, it is the petitioner's position that he served for some years as a soldier in Eritrea, that he was granted leave and that he took the opportunity afforded by his leave to cross the border into Sudan from where he travelled onward to Europe and, eventually, to the United Kingdom. The critical feature of his account was that he left illegally, in other words without an exit visa issued by the Eritrean government. That is of importance because of the ill-treatment which is likely to be afforded to an Eritrean national who has left the country illegally and then returns. That someone in that category is at real risk of being subject to punishment which is persecutory and amounts to serious harm and ill-treatment can be taken as established for present purposes by the decision in MA (Eritrea).

[9] As the initials "CG" which form part of its full citation indicate, MA (Eritrea) is a "country guidance" case. As Lord Hodge notes in FNG Petitioner 2009 SC 373 at para 25, the practice of the AIT and its statutory predecessor of giving "country guidance" in order to avoid multiple examinations of the political and general circumstances in a country at any particular time and to achieve consistent decision-making was discussed in R (Iran) v Secretary of State for the Home Department [2005] Imm AR 535. The Court of Appeal there held that, where an appeal related to the country guidance issue in question and depended upon the same or similar evidence, it would be an error of law to fail to apply an extant country guidance decision unless there was a good reason, explicitly stated, for not doing so. The error of law would be that the Tribunal would have failed to take a relevant consideration into account. The country guidance cases did not have the status of factual precedents but provided at least a starting point for consideration of the background. As is observed by Lord Uist in CPO Petitioner [2011] CSOH 12 at para 11, the matter is now the subject of a Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal Practice Direction dated 10 February 2010. Para 12.2 of the Practice Direction (quoted in the Note of Argument for the petitioner) states:

"A reported determination of the Tribunal, the AIT or the IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-

(a) relates to the country guidance issue in question: and

(b) depends upon the same or similar evidence."

As the Note of Argument for the petitioner has it, put shortly, in the absence of significant new material about the country of origin, general findings made in a country guidance case must be followed in subsequent cases.

[10] Understandably, in his submissions Mr Komorowski took some time in leading me through the judgment in MA (Eritrea) with a view to demonstrating the effect of the country guidance there contained. It is a long judgment but its salient features emerge from the operative guidance quoted in the Note of Argument for the petitioner:

"1. A person who is reasonably likely to have left Eritrea illegally will in general be at real risk on return if he or she is of draft age, even if the evidence shows that he or she has completed Active National Service ...By leaving illegally while still subject to National Service (which liability in general continues until the person ceases to be of draft age), that person is reasonably likely to be regarded by the authorities of Eritrea as a deserter and subjected to punishment which is persecutory and amounts to serious harm and ill-treatment.

2. Illegal exit continues to be the key factor in assessing risk on return. A person who fails to show that he or she left Eritrea illegally will not in general be at real risk, even if of draft age, and whether or not the authorities are aware that he or she has unsuccessfully claimed asylum in the United Kingdom."

To this operative guidance may be added paragraph 449 of the Tribunal's Determination and Reasons:

"A finding as to whether an Eritrean appellant has shown that it is reasonably likely he or she left the country illegally, is therefore likely to remain crucial in deciding risk on return to that country ...In making such a finding judicial fact-finders will need to be aware of evidence that tends to show the numbers of those exiting Eritrea illegally appear to be substantially higher than those who do so legally and that distaste for what is effectively open-ended service at the behest of the state lies behind a good deal of the current emigration from Eritrea. Nevertheless, where a person has come to this country and given what the fact-finder concludes (according to the requisite standard of proof) to be an incredible account of his or her experiences, that person may well fail to show that he or she exited illegally."

The status of the petitioner and the respondent's view of that status

[11] As a national of Eritrea who is of draft age (between 18 and 50) and who has left Eritrea, the petitioner is to be regarded as coming within a category of persons who are at real risk of persecution if returned to that country, provided that he is also to be regarded as having left Eritrea without an exit visa. That proviso was not accepted by Immigration Judge Sykes who, having found the credibility of petitioner's account undermined, refused his asylum and human rights claims in terms of determination dated 15 March 2007 and promulgated on 2 April 2007. In para 38 of his determination Immigration Judge Sykes said this:

"I have not been able to find a satisfactory explanation of why the appellant has put forward this particular story nor have I even been able to guess at what the truth actually is. I have however found him to lack general credibility, and I have also found that he has failed to give a credible account of material particulars relating to his history and circumstances - the age at which he joined the army and the length of his service. I do not therefore accept that he has left Eritrea illegally and I do not find that he would be at risk on return because he is of eligible draft age."

These findings were adopted in the determination of the petitioner's deportation appeal promulgated on 13 October 2008. At para 29 of that determination Immigration Judge Colyer, sitting with Mrs A Cross de Chavannes, quoted what Immigration Judge Sykes had said and went on:

"We adopt the findings and conclusions of that appeal as set out by our colleague. There was no successful appeal of the Determination and we find no reason to depart from these detailed and well argued findings and conclusions."

[12] Before Immigration Judge Sykes the focus was on whether the petitioner's account of having deserted from the army was to be accepted (the judge did not accept that he had deserted). This was because of the then current but now superseded country guidance case was KA (draft-related risk categories updated) Eritrea CG UKAIT 00165. Nevertheless it was because the respondent was satisfied that a tribunal could not find the petitioner to have left Eritrea illegally that, in the decision letter, she certified the petitioner's claims as clearly unfounded.

The court's task on judicial review of certification under section 94

[13] The question for the court in this application for judicial review is to determine whether the respondent was correct in her conclusion that the petitioner could not be found to have left Eritrea illegally, in other words that he would be bound to fail in his proposed appeal to the Tribunal because he cannot establish this necessary fact on the basis of such evidence as would be available to him.

[14] In framing the question for the court as I have in the preceding paragraph, I have attempted to follow the guidance which both parties accepted was apposite and which is taken from Lord Hodge's opinion in FNG Petitioner supra at para 14. Having discussed the principal authorities bearing on the judicial review of a certificate by the Secretary of State in terms of section 92 (2) of the 2002 Act, Lord Hodge concluded:

"...the court, in deciding whether the Secretary of State was entitled to be satisfied that a claim was clearly unfounded, must (i) ask the questions which an immigration judge would ask about the claim and (ii) ask itself whether on any legitimate view of the law and the facts any of those questions might be answered in the claimant's favour."

That formulation has the imprimatur of both Lord Hope and Lord Carswell in ZT (Kosovo) v Home Secretary [2009] 1 WLR 348 at paras 54 and 65. It was applied by Lord Bracadale in SO Petitioner [2009] 86 at para 4 and Lady Dorrian in AM Petitioner [2010] COH 25 at para 22. It can be contrasted with what was recently affirmed as the correct approach on review of a different but similar sort of decision by the Secretary of State, namely a determination that submissions do not amount to a fresh claim in terms of Immigration Rule 353, in Kishor Dangol v Secretary of State for the Home Department [2011] CSIH 20.

[15] The Note of Argument for the petitioner puts forward two propositions under the head of "The court's task". The first is no more than a repetition of Lord Hodge's formulation in FNG Petitioner supra to which I have made reference. The second is that in an application for judicial review of a section 92 (2) it is for the respondent to satisfy the court that the respondent was right to conclude that any appeal by the petitioner in respect of his asylum or human rights claims was bound to fail, there being no room for traditional judicial review concepts such as Wednesbury unreasonableness, nor for a margin of discretion or deference to be afforded to the Secretary of State as the decision maker. That is an almost verbatim quotation of what is recorded by Lord Malcolm in his opinion in JS Petitioner [2010] COSH 75 at para 6 as the concession made by counsel for the Secretary of State. It is supported, according to the Note of Argument for the present petitioner, by what was said by Lord Brown of Eaton-under-Heywood in ZT (Kosovo) supra at paras 66, 67, 72 and 75.

[16] I accept the petitioner's second proposition as a guide to the way in which the court should approach its task in an application of this sort, but only up to a point. The court is exercising its supervisory jurisdiction but I agree that that is in a context where there is no margin of discretion or deference to be afforded to the Secretary of State as decision maker and therefore the court approaches the Secretary of State's decision as an appellate court would approach the decision of a court of first instance on a question of law or fact. Thus, if the court concludes that, contrary to the Secretary of State's certificate, an appeal to the Tribunal might succeed, it must uphold the challenge and allow such an in-country appeal to be brought: ZT (Kosovo) supra, Lord Brown at paras 72 and 75. Where I question the petitioner's second proposition is in its placing a persuasive burden on the respondent in every case. This may not matter very much but, as a matter of generality, it is for someone claiming asylum or human rights protection to make out his case and it is for the party who seeks to challenge an administrative decision by way of judicial review to persuade the court that there is a basis for setting the decision aside. These general observations may have to yield to the particulars of a specific case and the persuasive burden may shift depending on the nature and stage of the argument. Here I see the persuasive burden lying on the petitioner, albeit that it is not a heavy one. If, on any legitimate view, a Tribunal might find that he left Eritrea illegally or, to the extent that this is different, treat him on the basis that left Eritrea illegally, then he is entitled to succeed and the certificate must be quashed but I see it as being for him to persuade this court that that is the position.

The critical issues: what is the evidence available to the petitioner and how might it be interpreted

[17] I understood Mr Komorowski to accept that it was for the petitioner to point the court to evidence on the basis of which the Tribunal might accept that he had left Eritrea illegally (when Mr MacGregor came to address me he referred in this context to the speech of Lord Keith in R v Secretary of State for the Home Department (ex p. Sivakumaran) [1988] 1AC 958 at 994F-G). Mr Komorowski further accepted that the petitioner having been found to be incredible, his testimony as to his own particular circumstances could not be relied on as positive evidence to the effect that he had left illegally. That meant that the petitioner had to rely on what could be derived from the country guidance case of MA (Eritrea). This was general evidence in the sense that related to matters of general application to persons sharing certain characteristics with the petitioner: Eritrean nationals of draft age who had left Eritrea. Some of the persons will have left Eritrea illegally, some will have left legally. Only those who have left illegally will be at risk but, so Mr Komorowski submitted, the general evidence which can be taken from MA (Eritrea), for example that "the numbers of those exiting Eritrea illegally appear to be substantially higher than those who do so legally", might lead a Tribunal to conclude that there was a reasonable degree of likelihood that the petitioner was one of those who had exited illegally and therefore that he was at risk.

[18] I hope I do not do any disservice to what was a carefully presented and quite sophisticated argument for the petitioner as seeing it as capable of being summarised as involving five, to an extent overlapping, steps which the petitioner must persuade the court to take: (1) given the relevant country guidance, what the petitioner has to establish is that he left Eritrea illegally; (2) the "clearly unfounded" test set out in section 94 (2) of the 2002 Act sets a high hurdle for the respondent and a correspondingly low hurdle for the petitioner, if "on any legitimate view of the law and the facts" the Tribunal might find the petitioner to have left Eritrea illegally and therefore be at risk then the certificate should be reduced; (3) the petitioner may have the onus of establishing that he would be at risk but the appropriate standard of proof is low; (4) because he has been found not to have been credible the petitioner cannot rely on his own evidence as positive support for his case but that is as far as it goes, the finding that the petitioner lied does not count against him, it does not exercise a "negative pull", to use the expression adopted in MA (Somalia) v Secretary of State for the Home Department (otherwise HH (Somalia) v Secretary of State for the Home Department) [2010] UKSC 49, [2011] 2 All ER 65; (5) the general evidence in the country guidance would be available to the Tribunal and is capable of yielding the inference, on the low standard of reasonable degree of likelihood, that the petitioner left Eritrea illegally and is therefore at risk.

[19] I shall look at these five steps in turn. Steps (1) to (4) are fairly easy. Step (5) is more problematic.

(1)Relevant risk can be equated with leaving illegally

[20] By relevant risk in this context I mean risk of persecution or ill-treatment such as to attract the protection of the Refugee Convention and the European Convention. It is no doubt a simplification of the effect of what is a lengthy decision but I accept from the country guidance provided by MA (Eritrea) that a person who is reasonably likely to have left Eritrea illegally can, in general, be regarded as at relevant risk. The fact in issue accordingly becomes that the petitioner left Eritrea illegally.

(2) Clearly unfounded on any legitimate view

[21] I have quoted what Lord Hodge said in FNG Petitioner supra at para 14. The correctness of his analysis was supported by Lord Hope and Lord Carswell in ZT (Kosovo) v Home Secretary supra. Accordingly, the respondent would be wrong and her certification in terms of section 94 would be subject to reduction if, any rational Tribunal, properly instructed in the law, could find on the evidence available to it that the petitioner had left Eritrea illegally.

(3) A low standard of proof, but of what fact?

[22] In making his submissions on what had to be established in order to substantiate an asylum or human rights claim, Mr Komorowski drew my attention to paragraphs 87 to 90 in the opinion of Lord Walker of Gestingthorpe in HJ (Iran) v Secretary of State for the Home Department [2010] 3 WLR 386 at 421:

"87 After all the carefully-researched debate that the Court has heard and participated in (we have had 23 bundles of authorities containing 250 different items) there is, as has often been noted, ultimately a single question: does the claimant asylum-seeker have a 'well-founded fear of being persecuted', if returned to his own country, for reasons falling within article 1A(2) of the Convention? As it was put by Simon Brown LJ in Ahmed v Secretary of State for the Home Department [2000] INLR 1, cited by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 , para 42: 'in all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum.'

88 This single question is however complex (McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 256) described it as a 'compound conception' which nevertheless needs to be interpreted as a totality). It is not directed at ascertaining past facts (though findings as to events asserted by the claimant to have happened in the past will always be relevant, and often crucial). Instead it is directed at predicting what would or might happen in the future if (contrary to his wishes) the claimant is returned to his own country. ...

89 ... The need for the claimant's fear to be well-founded introduces a very important objective element. Different jurisdictions have taken different approaches to evaluating what Professor James C Hathaway has called 'the threshold of concern': Hathaway, The Law of Refugee Status (1991), pp 75-80. When that work was published the test approved by the House of Lords in R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958 was that there should be 'a reasonable degree of likelihood' (Lord Keith of Kinkel at p 994) or 'real and substantial danger' (Lord Templeman at p 996) or a 'real and substantial risk' (Lord Goff of Cheiveley at p 1000) of persecution for a Convention reason. This remains the test. The editors of Macdonald, Immigration Law and Practice 7th ed (2008) prefer the expression 'real risk', citing the Court of Appeal in MH (Iraq) v Secretary of State for the Home Department [2007] EWCA Civ 852 , 'a real as opposed to a fanciful risk'. 'Risk' is in my view the best word because (as explained in the next paragraph) it factors in both the probability of harm and its severity.

90 In understanding the practical implications of the test it is important to note that in Sivakumaran Lord Keith quotes, at p 994, Lord Diplock's remarks in R v Governor of Pentonville Prison, Ex p Fernandez [1971] 1 WLR 987 , 994 (an extradition case) as to 'the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other' and Lord Templeman referred to his own similar remarks in R v Secretary of State for the Home Department Ex p Bugdaycay [1987] AC 514 , 537. Where life or liberty may be threatened, the balance of probabilities is not an appropriate test."

There is nothing in that statement which does not apply to the present case but while in theory the question for consideration is a complex one involving consideration of what might happen in the future, given that the country guidance can be summarised unequivocally as equating illegal exit from Eritrea with relevant risk (as discussed by Lord Walker) the question becomes the rather simpler one of whether or not the petitioner exited Eritrea illegally. As I have already observed, illegal exit is the fact in issue. That is a past event which either did or did not happen and not a future event which either may or may not happen. When considering a past event it is meaningful to come to a view, with a greater or lesser degree of certainty, that the event has in fact occurred. With a future event, it is a matter of prediction and therefore, where the event is adverse, risk. It is not usual to talk of the risk of the occurrence of a past event. Agreeing with Mr MacGregor, I see what Lord Hoffmann had to say in In re B (Children) [2009] 1 AC 11 at 17B as being apposite:

"2 If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened."

It follows that the petitioner must establish that he did exit Eritrea illegally, not that there is a risk that he exited Eritrea illegally (and therefore I do not find what was said by Sedley LJ para 37 et seq in Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489 to be apposite to proof of the fact in issue here). It does not follow that this must be established to a standard as high as the balance of probabilities. That has not been the law, at least since the decision of the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449). The current position is as set out by Sir John Dyson SCJ in MA (Somalia) v Secretary of State for the Home Department supra at para 18 et seq:

"18 GM (Eritrea), YT (Eritrea) and MY (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833 (which we shall refer to as 'GM (Eritrea)') was a group of three asylum cases which we shall consider in some detail later in this judgment in the context of the question of the relevance of lies. But in relation to the standard of proof, it may be worth recording that the Court of Appeal stated that the applicants had to do no more than prove that there was a reasonable degree of likelihood that the past facts that they asserted (viz that they had left Eritrea illegally) were true.

19 This is consistent with the approach adopted by the Grand Chamber of the ECtHR in relation to Article 3 claims in Saadi v Italy (App no 37201/06, 28 February 2008 ):

'132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes ... that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned ...' (emphasis added).

20 Nevertheless, the approach in Jonah [R v Immigration Appeal Tribunal ex p Jonah [1985] Imm AR 7] and Horvath [Horvath v Secretary of State for the Home Department [2000] INLR 15] to the ascertainment of past facts may also be seen as consistent with the requirement for 'substantial grounds' or 'serious reasons'. The argument before us, however, proceeded on the basis that 'real possibility' was the correct test to apply to past and present facts both in Refugee Convention and Article 3 cases. Without deciding the point, we are content to do the same in this appeal. We express no view on the issue which is both difficult and important. We think it would be desirable for the point to be decided authoritatively by this court on another occasion."

For present purposes it is unnecessary to determine whether the appropriate standard of proof of what in my opinion is the fact in issue here is "substantial grounds", "serious reasons" or "real possibility". At all events it is a low standard. In the course of the discussion before me Mr Komorowski accepted that the petitioner's illegal exit had to be established to some degree of confidence. I am content to proceed on that basis. The standard of proof is low but before the Tribunal the onus of proving illegal exit would be on the petitioner and to satisfy that onus he would require evidence. Mr Komorowski identified two sources of such evidence: that which had been provided by the petitioner himself and what might be inferred from that, and that provided by the country guidance case. The latter source, Mr Komorowski submitted, assisted the petitioner. It provided a "positive push". The former source, Mr Komorowski accepted, might be said to present the petitioner with difficulty by virtue of its "negative pull".

(4) Negative pull

[23] Given his immigration history and the terms of section 8 of the 2004 Act, the petitioner's credibility must be regarded as damaged but, for the reasons that he gave, Immigration Judge Sykes went further. He entirely disbelieved the petitioner's account of how and why he had come to be in the United Kingdom. The petitioner is someone who has lied with the object of supporting his claim for asylum and humanitarian protection. The respondent is therefore entitled to regard him as someone who is not worthy of credence and no weight whatsoever need be given to what he has to say insofar as supporting the petitioner's contention that he left Eritrea illegally. I did not understand Mr Komorowski to take issue with that. He was content to approach the previous rejection of the petitioner's account as would a properly directed Scottish jury who had disbelieved an accused's evidence; that the rejected account should simply be laid aside as having no effect. What Mr Komorowski wished to avoid, however, was an approach which assumed that the petitioner's lies gave rise to any inference adverse to the petitioner's claim. Such a "negative pull", to employ the expression used in the opinion of the Supreme Court, delivered by Sir John Dyson, in MA (Somalia), was not necessarily justified. Mr Komorowski accepted that there might be circumstances where the positive push exercised by, as he would have it in this case, the general evidence, might be said to be restrained by the negative pull of the petitioner's lies. That is not because the petitioner is to be punished for his lies or because liars are not entitled to asylum or humanitarian protection but because if an applicant is found to have lied that suggests that he had some reason for concealing the truth. However, so Mr Komorowski argued under reference to authorities on corroboration by false denial: Dawson v McKenzie 1908 SC 648 at 649 and 650, M'Whirter v Lynch 1909 SC 112 and R v Lucas [1981] QB 720, following that logic regard must be had to what the petitioner had been found to have lied about. As was correctly summarised in the decision letter, at para 22, it was because the petitioner failed to give a credible account of the events which had caused him to leave Eritrea that his account of how he left Eritrea was also not accepted. Any negative pull from his lies to the Tribunal would therefore be with regard to the events that caused him to leave. It is arguable that it could be inferred from his incredible account that the petitioner left military service with permission but it is impossible to carry any sinister inference over into the question of illegal exit. Standing the modified country guidance in MA (Eritrea), his having completed military service would still not have permitted him to obtain an exit visa. Whether he completed military service is no longer the crucial question. If the lie was to have much pull, the Tribunal would have to be reasonably confident that a fact had been concealed which would tend to show he could have left legally. As the lie may have simply been employed to conceal the fact that the petitioner had completed his term of military service, the Tribunal could not have such confidence.

[24] That the petitioner has been found to have lied does not help his claim but I agree that it does not necessarily fatally harm it. It would depend on the nature of the lie or lies but, perhaps more importantly for present purposes, it would depend on what the Tribunal made of them. It is a matter of assessment of evidence. Neither I nor the respondent can exclude the possibility that the Tribunal might choose entirely to disregard the petitioner's lies when considering the fact in issue. The Tribunal might very well come to the view that the petitioner's lies have a negative pull. I would be rather surprised were it otherwise, but it would be a matter for the Tribunal. For present purposes, the petitioner cannot argue that his account might be believed but that is as far as it goes. As far as this application is concerned negative pull is to be ignored.

(5) Effect of general evidence

[25] The second source of evidence available to the petitioner is the country guidance as set out in MA (Eritrea). That is general evidence in the sense that it relates to a whole country, its population and to groups within that population including groups of those who have left the country. It is not in any way particular to the petitioner. Insofar as it contains information about the risks faced by persons who have left Eritrea illegally it is relevant, but the evidence as to risk only becomes apposite to the petitioner's case once it is established that the petitioner made an illegal exit. The question therefore comes to be whether, on the general evidence alone, the Tribunal might find this particular individual to have left Eritrea illegally. In my opinion that question can only be answered in the negative. The country guidance in MA (Eritrea) shows there to be an at-risk group: those exiting Eritrea illegally. There is also a group that is not at-risk: those exiting Eritrea legally. The country guidance indicates that the at-risk group is substantially larger than the group that is not at-risk but that information takes one nowhere in ascertaining whether a particular individual, here the petitioner, belongs to the at-risk or not-at-risk group. There will be other cases where other information is available from which it might be concluded, with a greater or lesser degree of certainty, that a particular individual falls within the at-risk group. This is not such a case. There is no other information to which a Tribunal might attach credibility. A statement that is true about a group within a population, even if the group forms the majority of that population, tells one nothing about an individual within that population. That is reflected by the country guidance in MA (Eritrea). Having drawn attention to the evidence that tends to show the numbers of those exiting Eritrea illegally appear to be substantially higher than those who do so legally, it goes on: "nevertheless, where a person has come to this country and given ...an incredible account of his or her experiences, that person may well fail to show that he or she exited illegally."

[27] As can be seen from para 22 of the Supreme Court's opinion in MA (Somalia) a similar problem to that facing the petitioner here was faced by the appellants in GM (Eritrea):

"22. ...The undisputed objective evidence in these cases was that there was a reasonable likelihood that a person who left Eritrea illegally would be persecuted on return. The question for the AIT was whether there was a reasonable likelihood that the appellants had left Eritrea illegally. Each of the appellants gave an account about his or her exit from Eritrea which was almost entirely disbelieved. The issue was whether, in those circumstances and in the light of the objective background evidence, the AIT had been entitled to find that it was not reasonably likely that the appellants had left illegally. The objective evidence was that more people left Eritrea illegally than legally, but that there were classes of people who could leave legally ...and that those classes were not closed ..."

[28] The case of GM (Eritrea) came before a Court of Appeal constituted by Buxton LJ, Laws LJ and Dyson LJ (as he then was). In two of the three appeals that were being heard together, the Court was unanimous in its view that they should be dismissed. In the third case, that of a 17 year old girl, MY, there was a divergence in opinion as between Buxton LJ, on one hand, who would have allowed her appeal and Laws and Dyson LJJ, on the other, who did not. Like the petitioner here, MY had not given credible evidence as to how she had left Eritrea. Although there was objective evidence showing that there were categories of 17 year old girls who were allowed to leave the country legally Buxton LJ considered that her age alone made it very difficult indeed, even arguably, to fit her into any of the categories of person who might obtain exit visas, including the student category. That being so, he held (GM (Eritrea) supra at para 44) that the immigration judge should have considered, on the basis of all the evidence, "whether there was a reasonable degree of likelihood that during her residence in Eritrea MY did not fall into one of the categories that could or might leave the country legally". He said (supra para 45) that "the failure of the [evidential] case advanced by the appellant does not lead as a matter of necessity to the failure of her case if there is other evidence of general circumstances or probabilities against which what little is known about the applicant can be assessed". Thus, Buxton LJ considered that an Eritrean national who had left Eritrea might establish, to the standard of reasonable likelihood, that she had left Eritrea illegally simply on the basis of "general circumstances or probabilities". That was not the view of the majority of the Court. Laws LJ, with whom Dyson LJ agreed, said that the "concrete question for the immigration judge was whether there was a reasonable degree of likelihood that MY had left Eritrea illegally" (supra para 51). At paras 53 and 54 Laws LJ continued:

"53 ...The fact (if it be so) that it is reasonably likely that any 17 year old girl from Eritrea, about whom nothing else relevant is known, left the country illegally does not entail the conclusion that this particular 17 year old girl did so. The reason is that the probability that a particular person has or has not left illegally must depend on the particular facts of her case. Those facts may produce a conclusion quite different from that relating to illegal exit by members of such a class of persons about whose particular circumstances, however, the court knows nothing more than their membership of the class. There may indeed be a general probability of illegal exit by members of the class; but the particular facts may make all the difference. ...

54. The position would only be otherwise if the general evidence was so solid as to admit of only fanciful exceptions; if the court or tribunal concluded that the 17 year old must have left illegally whatever the particular facts."

At para 57 he said that, since her account of her departure had been rejected by the immigration judge, MY's claim could not succeed on the basis of general evidence unless "the possibility that the particular facts may make a difference is effectively excluded". Dyson LJ agreed that MY's appeal should be dismissed substantially for the reasons given by Laws LJ. At para 61, he said:

"Unless it can safely be said that exit by any 17 year old girl is illegal, whether it is reasonably likely that the exit by an individual 17 year old girl was illegal will depend on the facts of her particular case. Her failure to give a credible account of those facts may lead to the conclusion that she has not shown that there is a reasonable likelihood that her exit was illegal. "

When MA (Somalia) was before the Supreme Court it was accepted that the approach of Laws and Dyson LJJ in GM (Eritrea) was to be preferred over that of Buxton LJ. Paragraph 30 of the Supreme Court's opinion is in these terms:

"30 The appeal to this court has been conducted on the basis that the approach adopted by Laws and Dyson LJJ is substantially correct. But Mr Drabble questioned para 54 of Laws LJ's judgment. We think that what Laws LJ had in mind was a case where (i) the claimant's account is rejected as wholly incredible (it is riddled with contradictions and the tribunal is left in a state of being unable to believe anything that the claimant has said); but (ii) there is undisputed objective evidence about conditions in the relevant country which goes a long way to making good the shortcomings in the claimant's own evidence. In GM (Eritrea), for example, the AIT did not believe the account given to them by MY as to how she had left the country. They could not, therefore, rely on her account as a basis for concluding that she had left the country illegally. But if there had been objective evidence that no 17 year old girls were allowed to leave the country, her appeal would surely have succeeded despite her dishonest evidence. In fact, the objective evidence did not go nearly that far and the appeal was dismissed."

Even if it were open to me to take a different view from that expressed in the opinion of the Supreme Court, which I rather think that it is not, I would respectfully agree with what I see to be the logic of the position expressed by Laws LJ, agreed to by Dyson LJ (as he then was) and endorsed by the conduct of MA (Somalia). As Laws LJ said, the probability that a particular person has or has not left Eritrea illegally must depend on the particular facts of his or her case. It is a case specific question. The difficulty that the petitioner faces and, for all his skill in presentation, I would see Mr Komorowski as having been unable to surmount, is that nothing to which any credence can put is known about the particular circumstances of the petitioner. The standard of proof is low but even a low standard requires some evidence to meet it. Here there is none.

[29] For completeness I must mention Mr Komorowski's submission as set out in the Supplementary Note of Argument for the petitioner, number 17 of process, under reference to the very recently decided cases of Sieniewicz v Grief (UK) Ltd [2011] UKSC 11 and PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132. What I took from that submission was that the disapprobation of reliance solely on epidemiological evidence for proof of causation of mesothelioma in at least some of the opinions of the seven-member bench of the Supreme Court in Sieniewicz should not be taken as supporting an across-the-board rule that general evidence can never prove past facts; that rules as to standard of proof (and presumably also as to onus and sufficiency) had a policy component; and that sound policy supported or at least might support reliance on general evidence, as demonstrated by the judgment of Maurice Kay LJ in PO (Nigeria).

[30] It does not appear to me that I need master the complexities of Sieniewicz or that Mr Komorowski was inviting me to do so. He did not maintain that that decision assisted his submission that a Tribunal might find the relevant risk to the petitioner made out by reference to the country guidance alone. I accept that in determining what evidence is sufficient for a particular purpose a legal system is making a policy choice and may superimpose a decision informed by a policy choice on what would be the result of an application of pure logic. The law may not require a party to undertake a burden of proof which is impossible or unrealistic where there is a policy reason for doing so. Taken in isolation there is a paragraph in PO (Nigeria) which might be thought to run counter to how I have interpreted what was said in GM (Eritrea) and MA (Somalia) and to assist the petitioner here; it is para 43:

"In reaching this conclusion, I have not lost sight of the fact that the primary burden on any appellant to the [Asylum and Immigration Tribunal] is to establish her case to the standard applicable in her case. The error in the present case was to require her to establish in her case something which the guidance acknowledged to be likely and with which her evidence was, to put it at lowest, not inconsistent."

I did not consider that this paragraph or anything else in the judgments of the Court of Appeal trenched on what I had taken from GM (Eritrea) and MA (Somalia). What was in issue in PO (Nigeria) was whether the appellant had been trafficked from Nigeria by a gang, as opposed to by an individual, because of the increased risk to trafficked women on their return to Nigeria in the event that it is a gang that is responsible for their trafficking. The relevant ground of appeal was identified and further described by Maurice Kay LJ at paras 10 and 11 of his judgment:

"10. Ground 2 is concerned with the finding that the appellant was trafficked not by a gang but by an individual who acted alone in Nigeria. It is presented as a point of law in the formulation that the AIT

"...erred in law by requiring the appellant to prove by personal evidence that her trafficker had operated as part of a gang in Nigeria as a necessary element in establishing that she would be at risk on return."

11. The point is of interest beyond the parameters of this case because, if the ground is well-founded, there is a mismatch between the guidance on gangs and (a) the way in which the AIT proceeded to apply it within the same country guidance case and (b) the way in which the guidance is summarised by the AIT itself in its headnote to this country guidance decision."

The appellant had given quite detailed evidence that while not providing direct proof of her trafficker, a man named Osagie, being involved with a gang, was nevertheless consistent with that being so. Unlike in the present case, the evidence of the appellant in PO (Nigeria) had never been rejected. Maurice Kay LJ gives examples from the appellant's evidence at para 40 of his judgment:

"... Osagie had referred to 'many gangs working for him'; 'he has people all over Nigeria'; he is 'like Mafia, he has got gangs all over that can kill for him'; 'when I first met him, he had three large men with him - he told me they were his bodyguards'; 'he said he had gangs in this country - also that if I went back to Nigeria his gangs would find me there as well'. These statements, coming from a victim whose account of such matters has been accepted, are difficult to reconcile with the finding that 'there is no evidence that Mr Osagie was himself a member of a gang in Nigeria'.

Moreover, the AIT in hearing her appeal had taken it as an appropriate vehicle for giving country guidance. This included (at para 192):

"192... In the absence of evidence that a trafficked victim has been trafficked by an individual, it should be borne in mind that it is likely that the trafficking will have been carried out by a collection of individuals, many of whom may not have had personal contact with the victim."

This was not accurately reflected in the headnote to the case, cited as PO (Trafficked Women) Nigeria CG [2009] UKAIT 00046, but it was the inaccurate headnote which appeared to Maurice Kay LJ to be more consistent with the AIT's determination than the text of the country guidance at para 192. It is unsurprising to find the conclusion of Maurice Kay LJ stated in these terms at para 41 of his judgment:

"All this leads me to the conclusion that the AIT not only imposed an inappropriate burden on the appellant. It also failed to take into account her evidence which provided a foundation, together with the preserved findings of the original immigration judge, and the uncontradicted objective evidence, for a finding that Osagie was not simply an individual trafficker acting alone. Such a possibility was not properly rejected."

I would respectfully see PO (Nigeria) as having been correctly decided on its own facts. Its importance relates to its correction of the misapplication of the country guidance contained in the determination by the AIT and the risk of that being perpetuated in other cases due to the inaccuracy of the headnote. It does not support reliance on general evidence alone in a case where particular evidence has been rejected as incredible.

[31] The petition must be dismissed. I shall reserve all questions of expenses.