A v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE KEENE: This is a claimant's appeal against a decision of the Immigration Appeal Tribunal ("the IAT") dated 21st March 2003 whereby the IAT dismissed his appeal against an adjudicator's decision. The adjudicator had dismissed the appellant's appeal under the 1951 Refugee Convention and under Article 3 of the European Convention on Human Rights. It is common ground that this appeal can be confined to a consideration of the Article 3 issues since a decision on those will also determine whether there is a real risk of persecution if the appellant were to be returned to his home country.

2. Permission to appeal against the decision of the IAT was refused on the documents, but was granted after an oral hearing before Sedley LJ and Munby J, not on the original ground of appeal, which related to the burden of proof, but on the basis that it was arguable that the IAT's decision was a perverse one. Sedley LJ, who gave the reasoned judgment, expressly stated that he did not see that the IAT had gone wrong on the burden of proof. Nonetheless, the grant of permission to appeal did not confine the grounds which could be argued before this court.

3. The appellant is a Libyan national who first entered the United Kingdom in 1979 with leave as a student; that leave being extended several times until June 1983. In November 1983 he married a British citizen by whom he had already had a daughter. In 1984 he finished his studies but did not return to Libya, despite an order from the government there that he, along with other Libyan students in the United Kingdom, should return home.

4. In April 1985 he was granted leave to remain for a year as a foreign spouse, and in October 1986 he was granted indefinite leave to remain on the same basis. Since the conclusion of his studies he has had various jobs as a waiter, interspersed with spells of unemployment.

5. However, in January 1991 he was convicted of serious offences of indecent assault against his daughter and was sentenced to three years' imprisonment. His wife subsequently divorced him.

6. In November 1991 the Secretary of State advised the appellant that he was being considered for deportation, and on 30th December 1991, shortly before his release, the appellant applied for asylum.

7. In July 1992 he married another British citizen, by whom he subsequently had another daughter.

8. In January 1993 the Secretary of State refused his asylum claim and gave notice of intention to deport him. His appeal against the refusal of asylum was unsuccessful, but he made a further asylum claim after the deportation order had been served, and in October 1994 an adjudicator allowed his appeal. She did so on the basis that he was known to the Libyan authorities as someone who had flouted their instructions to return to that country, and that that failure to return was unlikely to be overlooked by the Libyan government.

9. In July 1995 the appellant raped a 25-year old woman. He was convicted at Newcastle Crown Court and on 1st July 1996 was sentenced to seven years' imprisonment. The court also recommended his deportation. Following his release from prison in April 2000 he was detained under the Immigration Act 1971 while deportation was considered. However, in May of that year the Home Office put a temporary hold on the removal of failed asylum seekers to Libya because of a report that a returnee had been imprisoned. A year later, in May 2001, the Secretary of State announced that a limited six months exceptional leave to remain would be granted to refused Libyan asylum seekers, with the situation being closely monitored in the meantime.

10. Nevertheless, in July 2001 the Secretary of State signed a new deportation order in respect of the appellant. He appealed against that on human rights grounds, saying that he feared that he would be tortured and killed if returned. The Secretary of State rejected that contention and the appellant appealed to an adjudicator.

11. The adjudicator heard that appeal in May 2002. He found that the Libyan authorities would not know that the appellant had claimed asylum in the United Kingdom, nor of press reports in the Newcastle local press in July 1996 referring to his conviction for rape and to him having been granted asylum in the past.

12. In his decision the adjudicator noted that the appellant had been granted leave to remain in the United Kingdom on the basis of marriage and that this would be a reasonable explanation for him having been allowed to stay in this country.

13. Some emphasis was placed by the adjudicator on a letter from the Foreign and Commonwealth Office dated 18th January 2002, reporting on a discussion between Her Majesty's ambassador in Libya and a senior member of the Libyan government. Part of the letter stated as follows:

"He [that is the ambassador] read to him the standard list of assurances that the Home Office seeks in such cases from the receiving country. He also explained two specific cases in outline. The Libyan official said that the two names were not ones he recognised as having any political significance. He said that they seemed to be economic migrants who had committed crimes, and not people of any significance to the Libyan security authorities. On that basis, they would not face difficulties indeed, they might not even be questioned."

The letter stated that one could not be 100 per cent confident of the assurances but that the ambassador had confidence in his contact's judgment. The letter concluded as follows:

"On balance, therefore, he believes it should be possible to recommend to Home Office Ministers that serious ill treatment is unlikely and that the men, in these cases, could be returned without a breach of the European Convention."

It should perhaps be noted in passing that it was clear from the Foreign and Commonwealth Office letter that at no time in those discussions had it been disclosed that the present appellant was someone who had sought or had been granted asylum in the United Kingdom in the past.

14. In the light of the evidence before him, the adjudicator concluded that there was no real risk of a breach of Article 2 or Article 3, were the appellant to be returned to Libya. It was against that decision that the appellant appealed to the IAT.

15. That tribunal, presided over by Ouseley J, the President of the IAT, heard the appeal in January 2003. It had before it a certain amount of new evidence as to the situation in Libya, including a CIPU bulletin dated 7th October 2002 and a further bulletin dated 6th December 2002.

16. In a very detailed reserved decision promulgated on 21st March 2003, the IAT dismissed the appeal. It identified the key issue as being whether or not there was a real risk that on return to Libya the appellant would be subjected to ill-treatment in breach of Article 3. It then examined the evidence before it on this issue with considerable care. It concluded that there was no basis for concluding that the appellant had engaged in any political activities of significance while in Libya; the essential reason for the grant of asylum in 1994 related to the expected approach of the Libyan authorities towards someone who had failed to return in response to their instruction in 1984.

17. The tribunal saw no basis for concluding that such activities as the appellant had engaged in while in the United Kingdom as a student brought him to the attention of the Libyan authorities through students planted here or any other monitoring. Though he had demonstrated against the Libyan government on one occasion, his own evidence had been that this was a demonstration in support of the government under cover of which he shouted opposition slogans.

18. The IAT saw no reason to believe that the Libyan authorities would now see him as an opponent of the regime because of his failure to return in the distant past. It said:

"He would return as someone deported for having committed a serious crime, which would account for the fact of his return. He would have a ready and truthful account of why he had stayed in the United Kingdom - he was married on two occasions to British citizens, the first marriage being in 1983 before the call to return; he had had two children; he had also served a substantial period in custody.

88. This would put him in a better position vis a vis the Libyan authorities than those who simply returned as failed asylum seeksers because it would provide truthful reasons for his absence and his return."

19. The tribunal also gave very substantial weight to the assurances obtained at a "very senior" official level by the British ambassador, those assurances being the ones to which we have already referred.

20. It noted that the Secretary of State's case did very much depend on the Libyan government not knowing of the successful asylum claim, but it saw no reason to disagree with the adjudicator's view that they did not know. Consequently, the IAT concluded that the appellant would not be at risk of treatment in breach of his Article 3 rights if returned.

21. That decision is now challenged by the appellant. On his behalf Miss Dubicka recognises that the original burden of proof argument is not well-founded since the IAT reached its decision as a result of an assessment of all the evidence which satisfied it that there was no real risk to the appellant. The case of Arif [1999] Imm IAR 271 was referring only to there being an evidential burden on the Secretary of State in cases where refugee status has been granted in the past, as is made clear in the penultimate paragraph of Simon Brown LJ's judgment. That burden was clearly discharged in the present case.

22. The appellant puts his case in two ways: first, it is said that the IAT erred because no reasonable tribunal could have arrived at the conclusion it did on the evidence before it; secondly, it is said that the IAT has made an error of fact amounting to an error of law.

23. Miss Dubicka sought some assistance on these matters by seeking to adduce fresh evidence in the form of first and foremost a report by Dr George Joffé and, second, a letter dated 7th January 2004 from the Higher Education Statistics Agency.

24. In considering the application to rely on that fresh evidence, we have looked at those two documents on a de bene esse basis. Dr Joffé is an academic specialising, amongst other things, in North African affairs. He describes how Libyan students in this country were monitored in the early 1980s on behalf of the Libyan government, certainly up until 1984 when all Libyan students in the United Kingdom were ordered home. This monitoring of students resumed again at the end of the 1980s. Dr Joffé comments that as at mid-1996, when the press reports in the Newcastle newpapers about the appellant were published, the Libyan student community here was again well-established and was being carefully monitored by the Revolutionary Committee Movement which reported to the Libyan authorities.

25. As to the assurances given to the British ambassador, Dr Joffé states that the appellant's name would have been passed to the security services, and that if there is real evidence of dissident activity on the part of the appellant, he will undoubtedly be at risk of ill-treatment.

26. The letter of 7th January 2004 from the Statistics Agency simply shows that there were a number of Libyan students at Newcastle University and other educational institutions in the north east in 1996.

27. In my judgment, this fresh evidence ought not to be admitted by this court. The principles applicable in such situations have been enunciated recently and authoritatively by the decision of this court presided over by Lord Phillips of Worth Matravers MR in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49. That decision has established that in asylum cases and similar Article 3 cases the admission of fresh evidence on appeals from the IAT is subject to the well-known principles set out in Ladd v Marshall [1954] 1 WLR 1489, though subject to the possibility of a departure from them in exceptional circumstances where the interests of justice require (see paragraphs 82 and 91(iii)). Those principles of Ladd v Marshall are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that, if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible, although not necessarily incontrovertible.

28. It seems to me that the appellant faces formidable problems in satisfying the first of those criteria. As indicated earlier in this judgment, the adjudicator in this case had in his decision in May 2002 specifically referred to the letter from the Foreign and Commonwealth Office of 18th January 2002 and had also found that the Libyan authorities would not have known of the reports in the Newcastle local press in July 1996. Those are the very matters to which this new evidence is directed. Yet none of this new evidence was put before the IAT at its hearing in January 2003, eight months later. The reason for that seems to be that no-one had thought of obtaining such a report from Dr Joffé. Certainly Miss Dubicka is unable to provide any better explanation for the failure to adduce this evidence before the IAT. As was said in Al-Mehdawi v The Home Secretary [1990] 1 AC 876, it will not generally be an excuse that the omission was the result of a failure by the party's legal advisers.

29. I, for my part, conclude that this new evidence could have been obtained with reasonable diligence for use before the IAT. Moreover, I am also not satisfied that this new evidence would probably have had an important influence on the result. Dr Joffé refers to the monitoring of the Libyan student community in 1996, but this appellant ceased to be a student in 1984, since when he had been working on and off as a waiter, which is how he is described in the Newcastle press reports of 1996. Nothing in Dr Joffé's report covers the monitoring of Libyans working in this country as opposed to Libyan students. As for his comment about the risk if there is real evidence of dissident activity, the appellant's problem, as the IAT pointed out, is that there is no such real evidence in existence, and certainly none of any materiality.

30. For those reasons, without casting any doubt on Dr Joffé's expertise or credibility, I conclude that this fresh evidence ought not to be admitted. There are no exceptional circumstances here which justify departure from the normal Ladd v Marshall principles in the interests of justice.

31. I return, therefore, to the evidence as it stood before the IAT and to Miss Dubicka's submissions thereon. She argues that there was evidence that there is a real risk that the Libyan authorities would be aware of the appellant's earlier refugee status. It is said that the IAT only considered the likelihood that the Newcastle press had been monitored by the Libyan authorities and not the likelihood that loyalist Libyan students in Newcastle saw and reported this to their authorities.

32. In addition, it is submitted that the IAT erred in its assessment of whether the appellant would, on return to Libya, be able to give an acceptable explanation for not having been returned earlier. Miss Dubicka focuses on two periods within the appellant's time in the United Kingdom. The first is in the mid-1990s. She emphasises that in June 1994 a deportation order was made and the Libyan authorities were asked by the Home Office about travel documents for the appellant. Yet he was not returned.

33. Then again in April 2000 he was released from prison, and in November 2001 there were the discussions between the British ambassador and Libyan officials about the appellant's possible return. Yet, despite the making of a deportation order, he still was not returned. Looked at at the date of the IAT's March 2003 decision, as this court must, that meant that he had not been returned for nearly one and a half years after those discussions. This would give rise, it is said, to suspicion on the part of the Libyan authorities, and the appellant would not be able to explain his continued presence in the United Kingdom simply on the basis of his past marriages.

34. Finally, it is contended that since the IAT's determination is in the public domain, albeit referring to the appellant simply as "A", it will be obvious to the Libyan authorities from the account given in it that it refers to the appellant and that he had been granted asylum. It would not be at all difficult to identify who was being referred to from the details of that written determination.

35. I say straight away that, for my part, I do not regard these arguments as establishing that the IAT's assessment of risk was a perverse one so as to amount to an error of law; nor does a judgment as to the degree of risk amount to making an error of fact of the kind being referred to as a potential error of law in the recent decision in E and R v Secretary of State for the Home Department .

36. The criticism that the tribunal only dealt with the likelihood that the Newcastle press had been monitored by the Libyan authorities, as contrasted to being monitored by loyal Libyan students, is unjustified. It is clear, both from the IAT's determination and the appellant's skeleton argument before that tribunal, that that was how the submission was put on behalf of the appellant. All that happened was that the IAT dealt with the point raised in the way in which it was raised, and there was no basis upon which it should have dealt with the different point which is now being advanced on the appellant's behalf.

37. I accept that the IAT's decision is in the public domain; of course it is. But, as Mr Kovats, on behalf of the Secretary of State, points out in his written argument, there is no evidence that the Libyan authorities peruse IAT decisions and no reason to believe that they do so. This particular decision has not been reported in the standard immigration law reports; nor could it, in any event, demonstrate an error of law on the part of the tribunal even if it had been so reported. Likewise, I find Mr Kovats persuasive when, in his written argument, he draws attention to the matters put forward by the appellant in June 2000 as to why he should be allowed to remain in the United Kingdom. These, in brief, included his long period of residence in this country, by then some 21 years; his children, who must of course be British citizens; and, for a time, his engagement to another British citizen.

38. As for the non-return of the appellant in the mid-1990s, it is relevant that at the time he was married, for the second time, and had a daughter by that marriage. Moreover, by July 1995 he had been charged with rape and was in custody. So there was a very limited interval during which he remained at large and he had considerable ties to this country, which he will be able to emphasise.

39. In respect of the post-1991 situation, it would have been clear to the Libyan authorities, from the high level discussions, that there was concern on the part of the United Kingdom government about how the Libyan government treated any returned Libyans, not just refugees or failed asylum seekers. Given the delays known to exist in the operation of the immigration system in this country, there is no reason to believe that the lapse of time in enforcing the second deportation order would give rise to any particular suspicion on the part of the Libyan authorities.

40. I accept that there is and can be no complete certainty about the appellant's safety on his return to Libya. That, however, is not the test. The test is whether there is a real risk that he would suffer treatment amounting to a breach of Article 3. The IAT, in my judgment, was entitled to regard the high level assurance given to Her Majesty's ambassador to Libya as being of considerable weight; one would not expect such an assurance to be lightly broken.

41. In all the circumstances, I can only conclude that the IAT's conclusion was within the range of permissible conclusions open to a reasonable decision maker on the evidence which was before it at the time. It made no error of fact amounting to an error of law. It follows that I would dismiss this appeal

42. LORD JUSTICE WALL: I agree.

43. LORD JUSTICE KAY: I also agree. The appeal is dismissed.

Order: Appeal dismissed with costs, not to be enforced without further order.