SK & Ors v Secretary of State for the Home Department

LORD JUSTICE LAWS : These applications all arise out of a hearing before the Immigration Appeal Tribunal on 16th and 17th October 2002. The purpose of the hearing, as it plainly seems to me, was to form a definitive view on the safety of Serbs returning to Croatia following a previous test case which came to this court, S and Others [2002] Immigration and Nationality Law Reports 416. This court remitted the appeals in S and Others to the IAT on 24th April 2002. These present five cases were substituted for S and Others in the context of reconsideration of the tribunal's definitive view about Croatia because, as I understand it, the appeals against the Secretary of State's refusal of asylum in these five cases postdated 2nd October 2002. The significance of that was, of course, that it meant that points under the European Convention on Human Rights as well as under the Refugee Convention would be open to be taken.

The case of SK was taken by the IAT as the lead case and argument before me this morning has concentrated on what the tribunal said in their determination in SK. Permission is sought to appeal the IAT's decision in four areas: (1) its approach to what is called in the grounds "the precedent facts" relating to the situation in Croatia; (2) its approach to the use of expert evidence; (3) its approach to Article 14 read with Article 3 of the European Convention on Human Rights; and finally, its approach to Article 8 of the Human Rights Convention. Counsel have only developed grounds 1 and 2 in their oral submissions, being content to leave the others as they have been argued in the grounds and skeleton. They have by no means abandoned them.

I just want to say a word in advance about the fourth ground relating to Article 8. The applicants recognise that the decision of this court in Ullah [2002] EWCA Civ 1856 precludes any argument upon the issue here raised, short of their Lordships' House. The question, in a sentence, in Ullah was whether Article 8 rights are, so to speak, exportable; that is to say, whether a complaint might be made against the authorities of the United Kingdom to the effect that Article 8 would be violated in another country to which those authorities propose to send an applicant. This court, presided over by the Master of the Rolls, held that in this sense Article 8 rights are not exportable. However, the appellant there was granted leave to appeal to their Lordships' House and, as I understand it, that appeal is pending. I will return shortly to this last point at the end.

The applicants' complaint on the first ground relating to the precedent facts is succinctly articulated at paragraphs 7(i) and (ii) of the consolidated grounds of appeal as follows:

Later in the skeleton argument at paragraph 10 there are set out a series of detailed matters which, it is said, the tribunal should have, but failed to, address. I will not read them out. They are individual allegations relating to individual applicants. They deal with a disparate series of matters: broadly, the specific conditions which each of these applicants would be likely to face were he returned to Croatia. Various aspects of the privations which were feared are described.

In the case of S and Others in this court, I said this at paragraph 28 of the judgment:

The IAT's general conclusion in these appeals is set out at paragraph 40 of the determination in SK as follows:

Mr Wilken, who has appeared for the Secretary of State this morning, took me to Annex 2 of his skeleton argument. It is enough to say that that sets out in very great detail a whole series of matters relating to the conditions in Croatia which might be faced by returning ethnic Serbs and the evidence that addressed those matters.

In paragraph 41 of the determination in SK the tribunal turned to the circumstances of SK himself, and there are like paragraphs in their determinations in the other cases. The tribunal conclude at paragraph 45 as follows:

In summary, then, the tribunal dealt with each of the individual cases by considering whether any applicant could demonstrate a special position or exceptional circumstances, and they held that none could. It is useful at this stage just to note a passage in paragraph 24 of the IAT's determination in SK, which reads as follows:

Mr Mullins, for all the applicants save NT, submits that the vice of this decision is that the tribunal have failed to consider in its proper fullness the question as regards each applicant, whether in truth he is to be treated as a refugee or whether in truth he is to be treated as a potential victim of ill-treatment contrary to his rights under the European Convention. It was, he submits, not legitimate for the tribunal to arrive at the general conclusion at which they did arrive in paragraph 40, and then to go on and treat each individual case as if the issue were no more nor less than whether some special position existed such that the applicant under consideration would suffer greater hardship than the level of privation, and indeed misery, that is referred to in paragraph 40. He reminds me, not least in his reply, that it is really elementary in our law relating to claims of refugee status that each case has to be considered properly on its facts. That is of course right. The submission would, as it seems to me, be very powerful but for one important aspect of the matter, and that concerns the way that these cases were run before the IAT.

It seems to me to be crystal clear that the appeals were conducted before the tribunal on a generic basis. I have seen the very full opening note prepared for the IAT hearing, as I understand it by leading specialist counsel who conducted the appeals in the tribunal. I think it is plain that the points in paragraph 10 of the skeleton argument, to which I have referred without setting them out, were not discretely run; certainly, they are not discretely run in that opening. I do not see how it could be said that the IAT should have teased out such points for themselves. I accept, of course, that there were statements put in by the individuals concerned, and at least in one case, perhaps more, there was expert evidence relating to a particular position that was being put forward. But if one looks at the way in which the opening is drafted, and it is a very full document, it seems to me to be plain that the applicants' counsel and the tribunal were of one mind as to the reach of the appeal, and that was as described in the short passage I have taken from paragraph 24 of the tribunal's determination. Mr Mullins referred to some particular passages in the opening, not least paragraph 5, where this is said:

Mr Mullins refers also to paragraph 6 of the same document, which starts thus:

It is clear that those matters were before the tribunal. What, however, the opening note does not establish is that the expectation of the applicants by their counsel was anything other than as was described by the tribunal in the passage to which I have already referred. The whole thrust of the appeal was to concentrate on the voluminous documentation in reports, and expert opinions which concerned the situation in Croatia generally as it would affect returning Serbs. Mr Wilken for the Secretary of State referred me to the terms of the applicants' reply before the tribunal, not least paragraph 7, which is as follows:

I make it clear that there is some detail added in the document under each of those heads, but what this demonstrates to my mind (which is, it seems to me, all of a piece with paragraph 6 of the opening) is that these points were being made in truth on a generic basis. In the circumstances, and having seen the opening note, the reply, the way the matter was put by the Secretary of State and the way in which the tribunal responded to the arguments and material before them, I do not believe that there is an arguable complaint here as to the approach taken by the tribunal to what has been called "the factual precedent aspect of the case". Of course, and I would wish to emphasise this, it is generally the duty of the Appellate Authorities to deal with appeals before them in all their fullness. But it is also the case that the tribunal may from time to time address a wide range of matters relating to a particular country so as to arrive at conclusions which will guide Adjudicators and later tribunals dealing with cases which concern the same country. It is not to say that when that is done it is not entirely right and proper for the tribunal to be asked in any event to deal fully with the particular case being put forward on the particular facts relating to the particular applicant. But my understanding of the documentation here is that the whole thrust of the appeal was being put on the footing that conditions in Croatia generally were not safe for returning Serbs, and if that was right, then the appeals, no doubt, would succeed. If it was not right, then it seems to me in the particular context here that it was perfectly proper for the tribunal to treat the individual cases on the basis that the question was whether they showed exceptional circumstances. I would not grant permission on the first ground.

As for the second ground relating to expert evidence, it is first said that the IAT were not entitled to take a different view of the role of expert evidence from that commended, as it happens by my judgment, in this court in S and Others. In that case I had said:

In paragraph 5 of the determination in SK, the IAT, referring to that passage, said:

While one might baulk at the IAT's apparently stark departure from this court's view of the importance of expert evidence in this field, in fact on a careful reading of paragraph 5 I rather doubt whether the tribunal is at so great a distance from what was said in S as it first appears. I hope it is clear that nothing I said in S was meant to suggest that the tribunal were bound to accept any particular piece of expert evidence; but rather expert evidence, simply as a class of evidence, must have an important role to play, given the nature of the subject matter of the tribunal's task.

I should also say, and it may be that the tribunal misapprehended this, that there is no distinction being made in the relevant paragraph (paragraph 29 in my judgment in S) between the country reports that the tribunal routinely see and an individual expert's opinion. It seems clear that the tribunal for its part did draw such a distinction in paragraph 5 of the determination. I am far from saying they were not entitled to draw such a distinction; but it is not a distinction which, as it happens, was not drawn by myself in this court in S.

All that said, the true question here must be whether the tribunal either misunderstood the expert evidence or misdirected themselves in relation to it or reached a decision which was not rationally justified in the light of the expert evidence. Points of that sort are indeed made in the grounds and skeleton. I note paragraph 20 of the skeleton argument:

I refer to that only to show that, as it seems to me, the applicants themselves are there implicitly adopting what may be called a conventional Wednesbury approach to the tribunal's treatment of the evidence. Mr Wilken by his skeleton argument submits for the Secretary of State at paragraph 13:

However Mr Mullins and, at somewhat greater length -- that is no criticism -- Mr Livingston, who appeared only for the applicant NT, had some specific points to make in relation to the expert evidence. They are summarised in paragraph 18 of the skeleton:

It is said that the tribunal should have taken account of the evidence of the expert, Misha Glenny, which was before them. I have been shown a particular paragraph in his report. I will not read all of it. It starts thus:

The point being made by Mr Mullins is, first, that there is simply no basis for saying that Dr Pajic's material was now somewhat out of date, or at any rate no sufficient basis, and, more substantially, the view taken by the tribunal arising out of what they perceived to be greater co-operation between Croatia and the ICTY was in fact contradicted by the expert, Misha Glenny. As to this, Mr Wilken points out that the evidence of Dr Pajic was based on two visits which he made in the summer/spring and/or summer of 2001 to the country. That preceded the hearing in the Court of Appeal in the S case and there is no doubt, he would submit, that a good deal of evidential water had passed under the bridge since that time.

In relation to Misha Glenny, it is clear that what was said in the passage I have read is merely one piece of evidence amid a whole welter of material. The tribunal for its part accepted, as I have already indicated, the detailed submissions made by Mr Wilken in Annex 2 to his written argument. It does not seem to me, with respect to Mr Mullins whose submissions have been very helpful, legitimate to pick out a specific piece of evidence here in the way that he did, and then to castigate the tribunal for not addressing it. It seems to me to be plain that the tribunal have conscientiously examined the mass of material before them. That is very powerfully supported by the extremely detailed reasoning which is to be found in the determination concerning the expert evidence. I am not going to lengthen this judgment by reading it all out. I have, of course, read the tribunal's determination, most of it more than once. There is no point to be made here that the tribunal have simply ignored or failed properly to address a piece of material before them.

I should proceed to paragraph 19 of the skeleton argument, which is in these terms:

I have already said that in my view the tribunal has conscientiously addressed the vast quantity of material before it. There is in my judgment no reasonable prospect of a conventional Wednesbury challenge here. There is not on analysis any misdirection of law in paragraph 5 of the tribunal's determination, notwithstanding their express disagreement with an observation made in this court in the judgment in S. It is hard to see how a review more intrusive than a conventional one could realistically be urged in a case where this specialist tribunal, presided over by a specialist judge, has given its mind to such a wealth of material relating to in-country conditions. I will not grant permission on the point relating to the experts.

I turn quite shortly to the third ground, Article 14 read with Article 3. The complaint is that the IAT failed to consider whether there was a reasonable likelihood of a violation of Article 14 read with Article 3 in the case of any applicant returned to Croatia. The tribunal, indeed, referred to Article 14 at paragraph 15 of the determination:

Then at paragraph 17:

It is well recognised that there may be a violation of Article 14 read with another Article in the Convention without there being any violation of the substantive Convention right, whether Article 3 or any of the other Convention provisions. To take an example as shortly as I may, in legal proceedings two different sets of procedural standards may apply, such as, for example, to take an extreme and no doubt impossible instance, a rule whereby for some classes of case persons of one race would be entitled to jury trial, but persons of another would not. That would obviously be a violation of Article 6 read with Article 14, even though it could not be suggested that Article 6 of itself required jury trial. There was discriminatory action which was nevertheless within the scope or the ambit of Article 6, and so Article 14 had a field of operation within which to bite. There is a good deal of Strasbourg learning on the scope of Article 14.

The difficulty here is to see how Article 14 can apply in an Article 3 case where there is no violation of Article 3 simpliciter. It is true that the tribunal do not, I think, address the question whether there might be a breach of Article 14 read with Article 3 absent a breach of Article 3 itself, but it seems to me that Article 3 is, unlike Article 6 and unlike the political rights in Articles 8 to 11, a provision which has something of an absolute quality. On any given set of facts there either is a breach of it or there is not. There is no analogue to the second paragraph of each of Articles 8 to 11 allowing derogation from the right in certain circumstances. Degrees of treatment short of Article 3, however discriminatory, will not violate Article 14 taken with Article 3, as it seems to me, because treatment short of Article 3 cannot really be said to be within the scope of Article 3 itself. I find it very difficult to conceive of a case, therefore, in which there might be an Article 14 case read with Article 3, but no Article 3 case standing alone. In those circumstances I regard this aspect of the application as insubstantial, and I will not grant permission.

I turn lastly to the fourth ground relating to Article 8. I have already mentioned the decision of this court in Ullah and the forthcoming appeal to their Lordships' House. Dealing with the matter as shortly as I may, plainly if their Lordships uphold the decision of this court in Ullah, then there is nothing to be said in support of any complaint relating to Article 8 in these cases. If their Lordships were to hold that Ullah was not correctly decided in this court, then other learning relating to Article 8 applies, not least a case by name Devaseelan; but here -- I will not go into the references -- that case was applied by the tribunal. Thus, as Mr Wilken put it in the course of his submissions this morning, the applicants on this part of the case are caught upon something of a Morton's Fork. Either way, whether this court's decision in Ullah survives or not, there is no room, as I see it, for a discrete Article 8 complaint to be made in the context of this case.

For all those reasons, I will not grant permission to appeal. I am grateful to all counsel for their assistance.