United Kingdom Asylum and Immigration Tribunal

ar [2003] UKIAT 00068 C (Sierra Leone)

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing :13 August 2003

Date Determination notified:

8^TH September 2003
Before:
Mr G Warr (Chairman) Mr N Kumar, JP Secretary of State for the Home Department

APPELLANT

and

RESPONDENT

DETERMINATION AND REASONS
1. The Secretary of State appeals the determination of an Adjudicator, Mr M. Goldmeier, who allowed the appeal of a citizen of Sierra Leone, for convenience hereinafter referred to as the appellant, from the decision of the Secretary of State to refuse his application for asylum.
2. Mr D. Saville appeared for the Secretary of State. Mr N. Garrod, of counsel, instructed by S. Osman Solicitors, represented the appellant. The appellant had also been represented by Mr Garrod in the proceedings before the Adjudicator.
3. The appellant's evidence as summarised by the Adjudicator is as follows:

'8. On 25 February 1998 rebel soldiers from the Budis faction of the Revolutionary United Front ("RUF") came to the appellant's home in Pendema which is in eastern Sierra Leone over 300km from Freetown. Atrocities were committed against the villagers. The appellant's mother was killed. The appellant was abducted as was his two year old brother. The appellant's home was burnt. The next day the appellant's younger brother was killed by an RUF solider.

9. The appellant had the presence of mind however to take with him his birth certificate as he thought he might need it one day as an aid to escaping from Sierra Leone. The appellant also explains that in Sierra Leone a birth certificate is used as a formal form of identification. The birth certificate was in evidence before me.

10. In his witness statement the appellant states that while in captivity he was required to carry out tasks for his captors including washing clothes and cooking. The appellant together with other captives accompanied the rebels on a number of raids. They were required to carry looted property. The appellant told me that under duress he had participated in the burning of homes and looting of property. He told me in the course of his oral evidence that he had hit resisting villagers and that had he not done so he would have been shot. The appellant told me that he had been with the rebel forces in the Kenema, Kono and Kambui areas. During the appellant's oral evidence, a map of Sierra Leone was reviewed. From that map it appeared that the appellant's activities with the RUF forces took place over a wide geographical area in eastern Sierra Leone.

11. After six months the appellant attempted to escape. He was caught by rebels and tortured. The appellant said in his witness statement that he had deportation wound marks on both legs which were caused by a machete. The appellant showed me his legs. There was clear scarring on a number of areas on both legs. The record of the interview with the Home Office on 7 August 2002 indicates that scarring was also evident to the Interviewing Officer (question 30). The appellant was kept in a cave for two months and released on condition that he henceforth followed orders.

12. On or about 28 March 2000 an armed group raided the rebel camp. The appellant is unsure whether or not that group were government forces. In any event the appellant and other captives were able to make their escape as the rebels had fled. They were however shortly after captured by another armed group but managed to flee from them. The appellant crossed into Liberia and went to a village called Munu. The appellant there met and an American pastor called Farther Elliott. It appears from the appellant's witness statement dated 11 November 20002 that Father Elliott was a Catholic Minister, but had a wife in the United States. Father Elliott gave the appellant food and shelter. The appellant remained with Father Elliott. He provided domestic services for him and became a member of the Pastor's church. The appellant stayed in Munu for two years.

13. At the beginning of June 2000 rebel soldiers crossed from Sierra Leone and captured a village adjacent to Munu. The appellant recognised two rebel soldiers. Father Elliott believed that the appellant would be killed if he remained in the area. The villagers, fearing the rebels, left. Father Elliott said that he would be returning to the United States and that the appellant could travel with him. Father Elliott paid for the appellant's travel.

14. On 1 July 2002 together with Father Elliott the appellant fled to an African country. On 3 July 2002 they continued their journey using travel documents supplied by Father Elliott. Father Elliott and the appellant arrived at Heathrow. Father Elliott told the appellant to wait while he sorted out some paperwork. However after half an hour/one hour Father Elliott did not appear. At that point the appellant approached an Immigration Officer and sought asylum. He told the Immigration Officer that he wished to wait for Father Elliott a little longer, but the Immigration Officer insisted that the appellant went with him.'

4. The Adjudicator had in mind background evidence that had been placed before him. However, since the hearing the Adjudicator records in paragraph 17 of his determination, that since the hearing 'I have also investigated from Internet sources further and more up-to-date material concerning Sierra Leone. I also make reference in this determination to some of those sources.'
5. The Adjudicator accepted that the appellant had been abducted by the RUF and forced to collaborate with them in the way described, and the medical evidence was consistent with the ill-treatment which the appellant had suffered following his attempted escape. The Adjudicator, however, rejected the evidence concerning Father Elliott and what had occurred at Heathrow Airport. The Adjudicator expresses his conclusions for finding that the appellant would be at risk on return to Sierra Leone in the concluding paragraphs of the determination which read as follows:

'41. I find that on his return to Sierra Leone, the appellant would be at risk from the three sources which he says he fears. Those sources are the victims of the RUF raids in which the appellant participated, the government forces and their associates and lastly members of the RUF. I now propose to consider the severity of those risks. Before doing so, I observe that nowhere in the background evidence is any guidance given concerning the treatment of returned asylum seekers.

42. Dealing with the risk from government and associated forces, although the position in Sierra Leone has stabilised to a considerable degree, particularly with the introduction of UNAMSIL, I find having regard to the background evidence, that Government associated forces particularly the CDF may persecute ex-collaborators with the RUF. I consider that the appellant will be at real risk of being identified to the CDF or associated forces as an ex RUF collaborator. The reasons for this appear later in my determination. Although there have been recent attempts to control the CDF, it appears that they are still functioning, at least where local command centres have remained intact. I find that the CDF and other para military forces associated with the government are unlikely to make too fine a distinction between freewill collaborators with the RUF and those who have carried out activities on their behalf, albeit under duress. I find that the appellant would be at real risk because of the political opinion which the CDF, or other allied government forces would impute to the appellant. I find having regard to the background evidence that the CDF and allied forces act with impunity. If the appellant is identified as a collaborator, he can having regard to the background evidence including evidence of prison conditions which I accept expect harsh treatment. I am not persuaded that former RUF collaborators will be easily reintegrated into Sierra Leone society. The background evidence for example shows that even children who have worked with the RUF are rejected by their families and local children on their release.

43. In broad terms I find that the appellant is not at real risk from the RUF. Although there is evidence that the RUF have targeted deserters, it appears that they probably are now something of a spent military force in a large part of Sierra Leone. However, I find that the appellant will be at real risk from individual member of the RUF or their sympathisers and associates whom the appellant is able to identify. This is particularly so within eastern Sierra Leone where the appellant will have come into contact with those individuals. This particular threat does not however disclose an Asylum Convention reason, but the finding is relevant to my determination under the Human Rights Convention.

44. I am conscious that the appellant appears to have accompanied the RUF forces on a considerable number of raids and it is possible that a good number of people who will be hostile to the RUF can now identify him. It will be by no means clear to the victims or observers of the raids that the appellant was collaborating with the RUF under duress. I find that these victims or observers are likely to ascribe the appellant's activities to his perceived connections with the RUF. I find that the appellant is at real risk from the victims of the RUF raids or other observers of those raids. If identified as an RUF collaborator he is then at real risk from a large and hostile section of the Sierra Leone population in particular those who have suffered at the RUF's hands. The January 2002 report of Physicians for Human Rights suggests that there may be a good number of such families in Sierra Leone who have so suffered.

45. I therefore conclude from my findings that the appellant will be at real risk from pro-government forces, from victims of the RUF and their families and friends and from individual RUF members or sympathisers who the appellant is able to identify. This risk will be both in his home area and indeed over a large section of eastern Sierra Leone.

46. I need to consider, however, whether the appellant would be at risk in other parts of Sierra Leone and, in particular, the Freetown area where the respondent argued that he could relocate. In examining whether the appellant would be at risk in areas of Sierra Leone other than the east, I take into account the small geographical area of Sierra Leone and that its population is only just in excess of 5 million. These factors, in my determination, increase significantly the risk of the appellant being identified anywhere in Sierra Leone. I find, having regard to the background evidence, that large sections of the population have been displaced. Although some will have returned to their home areas, it is likely that a good many will have ended up in the Freetown area. The background evidence shows that many of these displaced persons will have suffered in one form or another at the hands of the RUF. I find that the appellant has no family or friends in Freetown and this lack of support will tend to increase the hazards he faces because it is more likely to bring him into contact with displaced persons and perhaps also raise questions as to why the appellant is not returning to his home area which will prompt further investigation into his past. Taking all these circumstances into account, I therefore conclude that the appellant would be at real risk throughout Sierra Leone and that it would be unreasonable and unduly harsh to expect him to relocate to Freetown or elsewhere.

47. Having regard to the real risks identified by me I allow the appeal under the Asylum Convention.

The Human Rights Convention

48. Since the hearing I have seen the report in Owen v Secretary of State for the Home Department [2002] UKIAT 03285. In that case the Tribunal suggest that the internal protection alternative was not available in Freetown for someone whose human rights were at risk in his home area. In coming to that decision, the Tribunal had before it background evidence which showed that conditions in displaced persons camps were "subhuman" and that medical conditions in those camps were described as some of the worst in the world. They went on to observe that beyond this, the possibility of being relocated to other camps outside Freetown did not on the current information look to be a viable alternative. However having regard to the latest background evidence and in particular reports that the Sierra Leone Government aims to have finished the resettlement programme by October 2002, after which the IDP camps will be closed, I do not consider, on the basis of the latest available background evidence, that he conditions described by the Tribunal in Owen still subsist. For that reason, I reject the appellant's claim that he would be subject to an infringement of his rights under this particular aspect of Article 3 if he were returned to Sierra Leone by reason of the conditions subsisting in the IDP camps at Freetown.

49. Having regard to the facts as found by me concering the real risks which the appellant will face on his return and the conseuqneces of such risks, I allow the appeal under Article 3 of the Human Rights Convention.'

6. In the grounds of appeal the Secretary of State submitted that the Adjudicator had misinterpreted the objective evidence as to the level of influence of the Civil Defence Force (CDF) in Sierra Leone. The CDF had disarmed. If the Adjudicator had found evidence to the contrary having investigated the internet, he had failed to mention specifically where. The Adjudicator's approach was speculative given the large numbers of people displaced in Sierra Leone. It was insufficiently reasoned why the appellant would be investigated or sought.
7. The only background material placed before us was the April 2003 Sierra Leone Country Assessment. No bundles had been lodged by the appellant. Counsel seemed to be under the impression that the material before the Adjudicator would be available to the Tribunal. The notice of hearing makes it clear on its face that the Tribunal must be furnished with a full, paginated bundle of all the material relied on even if such material was available to the Adjudicator. There are Practice Directions dealing with this point – i.e. Practice Direction no. 4 [2001] ImmAR 172, paragraph 6. It is particularly important in a case such as this where it is not clear to what material the Adjudicator had regard.
8. Mr Saville in his submissions pointed out that the Adjudicator had accepted that the CDF had disarmed in paragraph 24 of his determination. There was no reason why the appellant would be at risk from the disarmed militia. The Adjudicator's reasoning in paragraph 42 of his determination was unsustainable. The Adjudicator had recorded in paragraph 33 of his determination that there had been no reports that government troops had committed human rights abuses against RUF collaborators and suspected rebels. There was no evidence that the appellant would be sought several years after he had left the country. There was no evidence he was being looked for.
9. In paragraph 44 of the determination, the Adjudicator had referred to the possibility of the appellant being recognised. It was wrong to equate such a possibility with a real risk. It was pure speculation that he would be identified. In paragraph 46 the Adjudicator had accepted that a lot of people would end up in Freetown and it was self-contradictory to find that he would be at risk of being picked on. The appellant's fears were not well-founded and the approach of the Adjudicator had been purely speculative.
10. Mr Garrod submitted that the appellant had not come from Freetown and it would be unduly harsh for him to be returned there. The background information referred to lawlessness outside Freetown. Reference was made to paragraph 6.2 of the April 2003 Home Office Country Assessment. That referred to the government's inability to extend its rule to all parts of the country. The present conditions were harsh. The appellant had no family or home. The appellant could be subject to attack at any time by any party in the conflict. The reference in paragraph 6.2 to sustained improvements was merely an aspiration. Counsel referred to paragraph 6.63 of the Assessment – the CDF had disarmed. However, the group would still have influence within the community and it was the same situation as Northern Ireland. They still represented a threat.
11. Although the Adjudicator had referred to the Internet, the findings were based on objective evidence and the appellant would be at risk of identification in Freetown. He would be perceived as a collaborator. The appellant was not on a list of any kind but he would be vulnerable and of interest to the authorities. He had no community ties in Freetown. He had come from a small village and he would be easily identified on that account.
12. Mr Saville submitted that there had been, according to the Country Assessment, no recent reports of systematic CDF involvement in human rights abuses. Prison conditions were irrelevant to the case. The Adjudicator had brought into the picture the question of internal relocation in paragraph 46 of the determination. It was quite clear that the Adjudicator had rejected the appellant's claim that he would be subject to an infringement of his rights under Article 3 on return to Sierra Leone by reason of the conditions in the IDP camps at Freetown. It would not be unduly harsh for him to reside there. He might not have community ties in Freetown but he had none in the UK or in Liberia where he had spent two years. The civil war had ended. The government generally respected human rights and had attempted to abide by the safeguards within the Constitution – see paragraph 6.1 of the Country Assessment. The appellant's collaboration was insufficient to support the Adjudicator's conclusion that he would be recognised. There were many people in his position.
13. At the conclusion of the submissions we reserved our determination. We have carefully considered all the material before us. We should firstly make it clear that an Adjudicator should not have regard to material which has not been made available to the parties at the hearing. An Adjudicator should not have regard to unidentified sources when making his determination. In the vast majority of cases an Adjudicator should confine himself to the material to which reference was made at the hearing. Where material comes to his attention afterwards which has a material bearing on his reasoning he should send it to the parties for their comments or even reconvene the hearing. In this case both the parties were represented and it should not be lightly assumed by an Adjudicator that they had not acted advisedly in putting the objective material before him. It was certainly not necessary or desirable for the Adjudicator to conduct his own research after the hearing, compounding the difficulties by failing to make it clear which particular sources he had looked at and how they had informed his decision-making process.
14. It is recorded in paragraph 6.1 of the Country Assessment that the government generally respected human rights and attempted to abide by the safeguards within the Constitution. Any curtailment of rights had usually been because of security considerations or because of a lack of funds or trained personnel to ensure that they were respected. The government appeared to be responsive to representations made to it and had attempted to address the issue of human rights and abuses when these had been reported to it. Paragraph 6.2 reads:

'In the past, both groups backing the government and rebel groups have failed to respect human rights. The CDF, a militia that supported the government, were involved in human rights abuses during the civil conflict, but there have been no recent reports of systematic CDF involvement in such crimes. The Sierra Leone government was also hampered in addressing human rights abuses, by its inability to extend its rule to all parts of the country. However, with the improved security situation, there are grounds to believe that there may now be a sustained improvement in the human rights situation.'

15. Paragraph 6.63 of the Assessment, in reference to the CDF, reads as follows:

'Prior to the elections in May 2002, all militia and rebel groups were to disarm. The UN reported that this was achieved in January 2002, with over 40,000 rebel and government forces being disarmed. Funds have been provided to reintegrate members of such groups into society. However, this does not mean that such groups no longer have influence within the community and it is likely that all groups have retained caches of weapons. Sam Hinga Norman, former leader of CDF, is to face charges at the Special Court. This has not been popular, as there is still widespread support for him within the country.'

16. The appellant is an individual whose experiences are, as the Adjudicator himself acknowledges in paragraph 39, typical of the population in Sierra Leone. The situation of internally displaced persons is referred to in paragraphs 6.29 to 6.30 of the Country Assessment:

'Approximately 247,000 internally displaced persons (IDPs) remained at the end of 2002, with 220,000 returning to their place of origin in the same period. Some IDPs were housed in camps, but many lived in Freetown or other urban centres, and many of these are not registered. Residents who feared that their homes would not be safe strongly resisted government attempts to close IDP camps. The large influx of IDPs and the lack of resources caused tension between local residents and IDPs; however, there were no reported incidents of violence during 2002. There were numerous reports that refugees and IDPs returned to find their homes occupied.

Approximately 135,000 refugees repatriated during 2002. An estimated 70,000 persons remained in refugee camps in Guinea and Liberia; smaller numbers remained in Cote d'Ivoire, the Gambia, Ghana, and other countries and were likely to integrate locally in those countries.'

17. It is to be recalled that, while the Adjudicator did not accept the circumstances of the appellant's departure from Sierra Leone, the appellant did apparently spend two years in Liberia. He would be accordingly returned to Sierra Leone at a time when the country has, on the Adjudicator's findings, stabilised to a considerable degree. There are enormous numbers of internally displaced persons, nearly a quarter of a million at the end of 2002, with 220,000 returning to their place of origin in the same period. Many of these lived in Freetown or other urban centres. As we have observed, on the Adjudicator's findings the appellant's experiences would by no means be unique. Sections of the population had encountered very similar experiences, as the Adjudicator records. Counsel attempted to draw an analogy with Northern Ireland but we really do not think it is comparable. The appellant would be one of many returning after a passage of time and it was purely speculative for the Adjudicator to find that he would be picked on by the authorities or ex-members of the RUF or CDF, or indeed anyone else. The Adjudicator records in paragraph 30 of his determination that the background evidence did not provide any information on the treatment of returned asylum seekers. We do not believe that it is established to the required standard that the appellant would be identified or face a real risk of harm. We disagree with counsel when he observed that the improvements in Sierra Leone were illusory or based on an aspiration. The appellant has a lack of community ties in Freetown but we do not believe that returning him there would breach his human rights, and indeed the Adjudicator rejected the claim that he would have his rights infringed by being returned to Sierra Leone and living in inhuman conditions in the IDP camps in Freetown. The appellant would be returned to a country where large sections of the population have been displaced, but where large sections of the population are returning to their places of origin and where the situation appears to be stabilising and improving.
18. The Adjudicator erred in allowing this appeal on either asylum or human rights grounds. His approach was speculative and to some extent based on material not made available to the parties. The criticisms made of the determination by Mr Saville are, in our view, made good. We find that it would not be in breach of the United Kingdom's international obligations to require this appellant's return. The appeal of the Secretary of State is allowed and the decision of the Adjudicator is reversed.
G. WARR VICE PRESIDENT