Yacoubou v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE BROOKE: These two applications for permission to appeal to this court and for an extension of time were listed together so that the court could have the opportunity to revisit its earlier decision in Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167, within the new statutory regime which includes both the formation of the new Asylum and Immigration Tribunal and also the now quite well-established fast-track procedures for handling a certain category of asylum seeker.

2. The problem which Mance LJ and Hooper J (as he then was) were facing in Ozdemir was that the application to the IAT for permission to appeal to this court was not lodged within the statutory time limit and the IAT had no power to extend that time. This court was faced with a point of statutory construction as to whether in the language of the statute as it then stood, which for all practical purposes is the same as the current statute, there was a right of access to this court, notwithstanding that no timeous application had been made to the Immigration Appeal Tribunal. This turned on the proper interpretation of paragraph 23(2) of Schedule 4 of the Immigration and Asylum Act 1999, which provided that:

"An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, of the appropriate appeal court."

3. The problem was that given that the IAT had no jurisdiction to grant or refuse leave out of time, how did one then have access to the Court of Appeal if there could not be a situation in which such leave had been refused?

4. The procedural device which was arrived at by this court in Ozdemir was to hold that it was appropriate, even in those circumstances, for an application to be made to the IAT which it was bound to refuse because it had no power to extend time, and once that refusal had been notified the Court of Appeal then had appropriate jurisdiction to consider whether to grant permission to appeal. But Mance LJ made it clear that in these circumstances time for appealing ran from the original decision, and not from the refusal of permission to appeal within time by the Immigration Appeal Tribunal. That decision has subsequently been applied by this court regularly, e.g. Atef [2004] EWCA Civ 882 and Tepe [2004] EWCA Civ 1727.

5. These cases were listed today so that the court could reconsider, if it thought appropriate and if it felt able to do so, the validity of the procedure by which an application was made to the IAT at a time at which, by definition, it had no jurisdiction.

6. No party who appears before the court, including the Secretary of State, have made submissions to us other than that we should follow Ozdemir . If we did not follow Ozdemir , the consequence would be, no doubt, in a number of cases that an application for permission to apply for judicial review in the High Court would have to be made, with a consequent oral hearing in the High Court and perhaps a consequent application for permission to appeal to this court, leading to the cost and delay which has disfigured our system for processing challenges to asylum decisions in the past. In my judgment, this court should regard itself as bound by the decision of the Court of Appeal in Ozdemir .

7. In Limb v Union Jack Removals Ltd [1998] 1 WLR 1363, I set out the names of a number of cases in this court where the doctrine of precedent, in so far as it related to decisions of different divisions of the Court of Appeal, had been considered. I said that:

"34. From these authorities the following five principles can be derived. (1) Where the court has considered a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a point of law. (2) A decision of a two-judge Court of Appeal on a substantive appeal (as opposed to an application for leave) has the same authority as a decision of a three-judge or a five-judge Court of Appeal. (3) The doctrine of per incuriam applies only where another division of the court has reached a decision in ignorance or forgetfulness of a decision binding upon it or of an inconsistent statutory provision, and in either case it must be shown that if the court had had this material in mind it must have reached a contrary decision. (4) The doctrine does not extend to a case where, if different arguments had been placed before the court or if different material had been placed before it, it might have reached a different conclusion. (5) Any departure from a previous decision of the court is in principle undesirable and should only be considered if the previous decision is manifestly wrong. Even then it will be necessary to take account of whether the decision purports to be one of general application and whether there is any other way of remedying the error, for example by encouraging an appeal to the House of Lords."

8. This is not the appropriate occasion on which either to go back into history and consider cases like Langley v North West Water Authority [1991] 1 WLR 697 or Boys v Chaplin [1968] 2 QB 1; or to go forward and to consider such decisions as Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, or the more recent decision of this court in Cave v Rolf [2001] EWCA Civ 245. Those cases discuss different aspects of an interlocutory decision by a two-judge court, but I am satisfied that for present purposes it is appropriate for us to regard ourselves as bound by the decision in Ozdemir , where a two-judge court made a substantive ruling on a point of law which was fully argued and it would be inappropriate for us do anything other than follow it. Supposing it was on the face of it a binding precedent, there would certainly be no grounds on which we could say that it was manifestly wrong or, if the matter had been revisited, the earlier court must have come to a different conclusion. It is a satisfactory conclusion to come to, particularly as it is one which is fully supported by the Secretary of State because it does set out a workable way in which the Court of Appeal and practitioners can approach these cases where, for whatever reason, an application for permission to appeal was not lodged with the IAT in time.

9. Under the fast-track procedure, the appropriateness of which considered by this court in the case of the Refugee Legal Centre v Secretary of State for the Home Department [2004] EWCA Civ 1481, only two days are allowed for an application for permission to appeal to the Court of Appeal, thus evidencing Parliament's wish in relation to that category of asylum seeker who is considered appropriate for fast-track treatment for a rapid handling of appeals against an original adjudicator's decision.

10. In any event, if the application for permission to appeal is not made in time, every day that passes from the time that the AIT is without jurisdiction is likely to weaken the chances of this court being willing to grant an extension of time. Parliament has made clear its wish that applications for permission to appeal to this court should be made promptly. This court will do nothing to thwart the wish of Parliament. Of course there may be those exceptional cases where it would be a manifest injustice, on account of the particular facts, if the court would not be willing to entertain an appeal out of time. But those are likely to be exceptional cases.

11. I turn then to the facts of the two cases which are before us. The first is the case of Yacoubou. That was a fast-track case. The appellant is a young man from Togo, who came to this country and sought asylum. He was refused by the Secretary of State on 21st March 2005. The adjudicator dismissed his appeal on 31st March 2005. He applied for permission to appeal to the Tribunal on 1st April 2005 and a Vice-President of the Tribunal on 7th April directed that the case should be reconsidered. Mr McGeachy, a Senior Immigration Judge, said he ordered reconsideration because there was merit in the argument that the adjudicator had erred in law when he did not take the country documentation into account and did not adequately explain why, having accepted that the appellant had been detained in the past, he had found that the appellant would not face persecution or treatment contrary to his rights under the ECHR on return.

12. It was decided to appoint a three-judge tribunal to reconsider the case. The Tribunal found that there had indeed been an error of law of the type that had been identified when permission was granted. The adjudicator was criticised for omitting any reference to the country material in relation to his finding of no risk on return. The AIT then considered the material themselves. They considered an Amnesty International Report, a CIPU assessment and a US Department of State report, all reports referring to the unhappy conditions in Togo.

13. The adjudicator had found that the appellant was a low-level member of the UFC Party, and that finding coloured his approach to his decision. The AIT adopted the adjudicator's approach to the facts. They did not find any error of law in the way that the adjudicator had determined the facts, and they then considered the country background material in deciding whether the appellant would have a well-founded fear of persecution. In paragraph 15 of their determination they said this:

"We do not accept the argument however that these passages indicate that this appellant would have a well-founded fear of persecution on return to Togo. Whilst it is true that there are reports of abuses during past elections, the appellant has stated that he was involved in the election campaigns of 1998 and 2003 but came to no harm during those campaigns and was not prevented from participating. The arrest, the Adjudicator accepted, took place after the election campaign when he and others were shouting and expressing their delight that their candidate had won. Moreover, the Adjudicator found that the reason the appellant was released was from that and his later arrest was because he was not perceived as anything other than a low level member of the party. Having demonstrated by his release that the authorities had no continuing interest in the appellant we do not accept that the appellant is likely to be of interest on his return to Togo."

14. They then referred to the Amnesty Report, accepted that there was a volatile political climate and that some risk of violence existed, but they did not accept that this particular appellant faced a real risk or real likelihood of persecution in the future. They concluded by saying that:

"... the Adjudicator did err in the manner we have described, but we find having analysed the evidence ourselves that the Adjudicator was right to find that the appellant has no well-founded fear of persecution for any Convention reason on return to Togo, and for the same reason faces no real likelihood of any breach of Article 2 or 3 rights on return."

15. The determination was served on the appellant late on 12th April 2005 and he had two days in which to lodge an application for permission to appeal, this being in the fast track. The determination was also served on the appellant's solicitors, but this communication was apparently received after the time for permission to appeal to the AIT had expired.

16. At all events the appellant sought and obtained new lawyers on 18th April, who submitted an application for permission to appeal. In due course the Tribunal refused permission to appeal because it had been lodged out of time. That was on 26th April. On 17th May there was an application for permission to appeal filed with this court.

17. In my judgment, this application would fail because of the excessive delays since the decision was served.

18. I will go on to consider the merits. Mr Khan, in eloquent submissions, argued that the Tribunal when reconsidering the matter should have heard the appellant give evidence directly and should not simply have adopted the adjudicator's findings, even though they found no error of law in the way the adjudicator made his findings of fact.

19. During the course of the argument we considered the powers of the AIT on a reconsideration of an appeal both in regulations 31 and 32 of the Asylum and Immigration Tribunal (Procedure) Rules 2005, and then in the Asylum and Immigration Tribunal Fast Track Procedure Rules 2005, regulations 20 to 22. It appears to me that the Tribunal had a complete discretion as to decide how to handle the reconsideration. There was no application to it under Rule 22 of the Fast Track Procedure Rules to consider evidence which was not submitted on the previous occasion when it considered the appeal; in other words, an application that further evidence should be given on behalf of the appellant. In my judgment, there is no substance in the point that the AIT set about its task in the wrong way so far as evidence was concerned after it had detected an error of law. I can therefore see no merit at all in the substance of the appeal, and certainly no merit such as would persuade me that this was in any way an appropriate occasion to extend time for appealing to this court by so long. I would therefore refuse the extension of time.

20. In the case of G, this is an application for an extension of time and for permission to appeal grant a decision of the IAT on 18th February 2005 which dismissed an appeal against a decision of an adjudicator on 6th February 2004, who had dismissed an appeal against a refusal of asylum on 15th October 2003. Any appeal therefore lay to the AIT only in relation to a point of law. Although voluminous grounds of appeal were served, the IAT only granted permission to appeal with regard to the claim under Article 3 of the European Convention on Human Rights in so far as this was based on a general risk of violence. The Vice-President who granted permission said in effect that there was some ambiguity in the words used by the adjudicator, but that the claimant should not be unduly optimistic in light of the decision of the Court of Appeal in Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807.

21. The adjudicator had rejected evidence that the appellant's parents had joined the Unity Party, but accepted there was general violence against civilians in Monrovia at that time and that the appellant and her family had been in an appalling situation in which they had met dreadful violence. The appellant was raped on both the occasions which she described and she became pregnant with a child on the second occasion. The adjudicator found that the incidence of rape constituted a widespread problem in Liberia, especially during the violence. The appellant's parents had been murdered. But her evidence did not disclose that the soldiers viewed her as a serious political opponent. Her account was consistent with the family having been caught in the violence of the civil war. The humanitarian situation in Liberia was still very difficult, although the situation in Monrovia had improved.

22. The asylum claim was rejected on the ground that the appellant had never been targeted as a political opponent, and was not at risk of being targeted for that reason in the future. On Article 3, the adjudicator found that there was no substantial risk for believing that she was at real risk of a violation of her Article 3 rights. There was certainly risk to her life from the general violence taking place, but she would have to show a very high level of risk and not merely a general risk associated with the difficult situation in this country.

23. When the IAT considered the matter, they set out the facts of the case and the submissions that they had received, and then said this:

"[Counsel for the appellant] submitted that the [Adjudicator] had not taken into account the objective material before her which was further highlighted in the appellant's grounds of appeal which included a summary of the humanitarian situation in Liberia as contained in paragraph 6.50 to 6.54 of the relevant CIPU report. The Tribunal disagree with [counsel's] submissions in this respect as it is abundantly clear that the Adjudicator addressed these matters and specifically referred to these relevant paragraphs in paragraph 17 of her determination. We do not propose to repeat and set out such paragraphs but suffice it to say that they dealt with the situation in the country after the peace agreement of 18 August 2003 showed that relevant government forces had withdrawn from Monrovia and allowed peacekeepers to operate within the city and whilst conditions in Monrovia had improved the provision of basic services remained poor. The report did not show that the situation as a whole in Monrovia (to where the appellant will be removed) breached Article 3 for the population as a whole. The Tribunal notes that at the time of the appellant's appeal she was pregnant (and she has subsequently given birth) however, whilst the situation in Monrovia was poor it did not breach the threshold to the extent that the appellant would be subjected to treatment contrary to Article 3 on her return. The Adjudicator quite properly assessed the situation concerning the humanitarian situation in Liberia making comments in paragraph 25 that no doubt the respondent would take full account of the objective material concerning the same before taking any action in relation to the appellant.

11. As far as the Adjudicator's assessment of the standard of proof in relation to the appellant's Article 3 claims is concerned we do not consider that she has perpetrated a material error or mistake in law in relation to her assessment in paragraph 24 of her determination. The Tribunal are guided by the findings in the case of Hariri and note that there is nothing personal to this particular appellant which places her at real risk of serious ill-treatment or that there is a 'consistent pattern of gross and systematic violation of fundamental human rights' in the appellant's country of origin and in particular Monrovia as at the date of appeal before the Adjudicator. The fact that the situation to which the appellant would be returned to as far as the provision of services is below the standards within the United Kingdom and occurs routinely and frequently is not enough to show that there would be a breach of her Article 3 rights on return as there is nothing personal to this particular claimant which places her at a real risk of serious ill-treatment. There is nothing in the objective material to show that either pregnant women suffer disproportionately or women with infant children suffer likewise which would entitle the appellant to claim that her rights under Article 3 would be breached.

12. The Tribunal find that the Adjudicator in stating 'the appellant would need to show a very high level of risk and not merely a general risk associated with a difficult situation in the country' has not misdirected herself in relation to the relevant standard of proof and therefore has not perpetrated a material error or mistake in law."

They therefore dismissed the appeal.

24. The deadline for applying to the Tribunal for permission to appeal expired on 8th March 2005. The Tribunal received a fax message enclosing grounds of appeal, but not the appropriate form, after office hours on 8th March and, after the requirement for the form was pointed out, the solicitors lodged on 11th March the requisite form. They submitted that the grounds for permission to appeal to the Court of Appeal were submitted by 8th March, although they did not suggest that the form had been sent as they did not have one at the time.

25. On 1st April a Vice-President rejected this application on the basis that it was out of time. The deadline for submitting the application was 8th March. The application was received on 11th March and the Tribunal had no power to extend time. That decision was not sent off and subsequently received by the appellant's solicitors until 12th April. There then followed a long delay, partly caused by problems in instructing lawyers, until the notice of appeal was filed with this court on 3rd May.

26. Miss Naik for the first time today took a point that the application had been lodged with the IAT in time. She accepted that the form had not been sent, but she says there was nothing in the Immigration and Asylum (Procedure) Rules 2003 to suggest that there was not good service if a document was faxed to the office after office hours. She drew our attention to the decision of this court in R v IAT ex parte Jeyeanthan [1999] INLR 241, and in particular per Lord Woolf at 251.

27. Mr Patel did not have an opportunity to prepare submissions in response to this point and, on the limited research that we were able to perform once the point had been put to us without notice, it appears that Miss Naik may have a good point -- I express no greater certainty than that -- when she contends that this is an occasion when the substance should take precedence over the form, and the substance of the desire to seek permission to appeal, the grounds of appeal and the identity of the appellant had been effectively communicated to the IAT before the guillotine fell at midnight on 8th March.

28. However that may be, it is in my judgment essential if an extension of time is to be sought that the extension of time should be sought promptly. All that Miss Naik's argument would tend to establish was that it appears on the material before us, without the benefit of proper argument, that there was an application which the IAT might have had jurisdiction to consider as an in time application.

29. I therefore turn to the prospective merits of the case. Miss Naik argued forcefully that the IAT have fallen into error because it had not placed proper weight on the advice given by UNHCR to which reference was made in the adjudicator's decision. The adjudicator referred to the UNHCR advice quite shortly, saying that:

"In July 2003, the UNHCR requested that governments do not enforce the removal of failed Liberian asylum seekers for a period of six months. This was in response to the upsurge in violence, and the resulting difficulties in providing protection to the general population."

30. Of course the IAT when it considered whether the adjudicator had made an error of law was bound to take into account that UNHCR advice. But what it was not entitled to do was to look at any subsequent material. Miss Naik sought to argue that somehow or other the decision of this court in E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044 might have entitled the IAT to look at subsequent material. But the whole point of the decision in E is that although it does give a power to an appellate body to correct a mistake of established fact as of the date of the original decision, the mistake not being due to the fault of the appellant and being uncontroversial, it does not entitle an appellant to put in subsequent evidence to support an argument that the original decision-maker committed an error of law in ignorance of material about future matters of which, by definition, he was ignorant.

31. It appears to me that, in relation to that aspect of the matter, Miss Naik was seeking to argue on the facts that the adjudicator and the IAT should have placed more weight on a particular piece of evidence rather than on other evidence. That might have been a good argument when appeal lay on a point of fact, but it does not in my judgment amount to an error of law.

32. Miss Naik then sought to obtain an error of law from the passage of its determination which I have read about the poor services which are now in Monrovia, which appeared in the part of the Tribunal's decision in which it was making substantive findings on the merits of the Article 3 claim.

33. In my judgment, Miss Naik is putting too much weight on particular words in that finding. The Tribunal made a substantive finding, after reminding itself of Hariri , that there was nothing personal to this particular appellant which placed her at real risk of serious ill-treatment, or that there was a consistent pattern of gross and systematic violation of human rights in Liberia, and in particular Monrovia at the date of the appeal. That is an impeccable direction of law. The Tribunal then went on to say that there was nothing in the objective material to show that either pregnant women suffered disproportionately, or women with infant children suffered likewise, which would entitle the appellant to claim that her rights under Article 3 would be breached. That again is an impeccable direction, following Hariri .

34. Accordingly, there is nothing in the merits of the case to show that this was in any way an exceptional kind of case in which this court should grant a long extension of time, even if it were the case that the original application for permission to appeal was lodged timeously, contrary to what the IAT believed.

35. For these reasons, I would refuse permission to appeal.

36. LORD JUSTICE DYSON: I agree.

37. LORD JUSTICE HOOPER: I also agree.

ORDER: Applications for permission to appeal and for an extension of time in which to file the appellant's notice refused.

(Order not part of approved judgment)