K v Secretary of State for the Home Department

Case Number: C4/2005/0629

Neutral Citation No.: [2005] EWCA Civ 1627

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice

Strand, London WC2A 2LL

Date: 30/11/2005

Before:

THE PRESIDENT OF THE FAMILY DIVISION

LORD JUSTICE WALL

SIR PAUL KENNEDY

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

MISS A WESTON (instructed by Messrs Glazer Delmar) appeared on behalf of the Appellant

MR R TAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent

- - - - - - - - - - - - - - - - - - - - -

JUDGEMENT

1. SIR PAUL KENNEDY: This is a claimant's appeal against the decision of the Immigration Appeal Tribunal, dated 2nd February 2005, and it is concerned with the way in which the Tribunal dealt with the evidence of an expert, Dr Jennings. To set the matter in context it is necessary to outline the facts in the history of the claim. The appellant, who was born on 3rd March 1986, is a native of the Ivory Coast. On 28th December 2002, he arrived illegally in the United Kingdom by ship and, on 30th December 2002, he applied for asylum. He claimed to be a Muslim and a French speaking member of the Fulla tribe from Danane where most of the population are Yacoubas and are not Muslims. His father had worked as a Marabout or spiritual leader and his mother was a housewife.

2. He said that on 28th November 2002 his town was attacked by rebels and he and his father were captured. They were taken to a rebel base where his father was accused of helping the FPI and was shot at and then hanged in the presence of the appellant. The appellant was then taken elsewhere. He was made to drink alcohol and to smoke, which was against his faith. He admitted being able to drive and was given a 4-by-4 vehicle and a gun. He then drove groups of rebels on pillaging expeditions and pretended to co-operate in order to save his life.

3. After a few days, when his party was raiding shops, he found himself alone and took the opportunity to drive off with some of the money that the thieves had stolen. He then abandoned the vehicle and made his way to San-Pedro where he saw some people from Danane who thought he was a rebel. He also saw a man named Opoko, to whom he gave the stolen money, and in return he was stowed on the vessel which brought him to England. During the journey he was repeatedly subjected to buggery but was afraid to complain lest he be reported to the captain and thrown over board. After he arrived in England he was medically examined and his condition found to be consistent with his complaint of repeated sexual abuse.

4. The appellant's claim for asylum was rejected by the Secretary of State on 24th February 2003. In broad terms the Secretary of State was sceptical about the appellant's account and was satisfied that he could safely be returned to the Ivory Coast. The appellant then appealed to an adjudicator, Mr Price, who gave his decision on 20th August 2003. He accepted that the appellant's father had been murdered as the appellant alleged and that he was forced to become a boy soldier. He also accepted that the appellant escaped, but he did not accept his account of being left in charge of money. Nevertheless the adjudicator accepted that the appellant did manage to negotiate his passage to England and that on the journey he was sexually abused, as he had alleged.

5. However, the adjudicator did not find that the appellant was specifically targeted for a Convention reason. As he pointed out, the language of the Convention does not apply to a break down of law and order occasioned by a civil war. So far as the claim for asylum was concerned, it should, in the opinion of the adjudicator, be possible for the appellant to relocate. He did not have to consider any claim under the European Convention on Human Rights because the appellant had been granted exceptional leave to remain until 3rd March 2004, that is to say his 18th birthday. The adjudicator did, however, indicate that if he had been in a position to consider a human rights claim he would have concluded that this, in his words, severally traumatised young man should not be returned to the Ivory Coast.

6. The appellant then appealed to the Immigration Appeal Tribunal, which heard his appeal on 18th June 2004, but for reasons, of which we are unaware, did not give its decision until 30th December 2004. It concluded that the adjudicator had erred in law in failing to take into account a report from Dr Jennings, dated 17th July 2003, which was before him. That error was apparently conceded by the Home Office Presenting Officer before the Immigration Appeal Tribunal, which is, on the face of it, a little surprising because the adjudicator had said, at paragraph 57 of his determination, that when assessing the credibility of the appellant's account, and his claim as a whole, he had considered, amongst other things, the objective material which had been brought to his attention.

7. Having identified that error of law, the Immigration Appeal Tribunal was entitled, as it said, to consider the weight to be given not only to Dr Jennings' original report, but also to his later report, of 24th May 2004, which was prepared some ten months after the adjudicator had reached his determination.

8. The Immigration Appeal Tribunal was not impressed with the reports for reasons that it gave in paragraphs 29 to 31 of its determination. Those reasons can be summarised thus: first, despite his academic qualifications Dr Jennings had no first-hand experience of the Ivory Coast. He had not lived there and so far as the Tribunal was aware he had not even visited. He derived his information entirely from media and other reports. Secondly, he in both reports expressed his opinions, for the most part, without reference to sources and without explaining his reasons for his views.

9. The Immigration Appeal Tribunal then considered the rest of the evidence and agreed with the adjudicator that the appellant had failed to show that if returned to the Ivory Coast he would be at real risk of persecution for a Convention reason. It therefore dismissed his appeal.

10. Miss Weston, on behalf of the appellant, submits that the Tribunal fell into error in dealing with the evidence of Dr Jennings as it did. She submits, and I for my part would accept, that it is no answer to the point that the expert was, on the face of it, properly qualified and indeed had a number of academic qualifications to say that he had not visited the territory about which he wished to speak. The fact was that he had assembled and considered a great deal of information and that put him in a position in which he would be able to assist the Tribunal in a way which they would not otherwise have enjoyed.

11. So much for the qualifications of the expert. An expert, in my judgment, can be perfectly well qualified to speak about a territory without himself having been there, and this expert, on the face of it, was in precisely that position. What then of the Tribunal's other reason for dismissing the evidence of Dr Jennings? As Mr Tam, for the Secretary of State, has pointed out: the Tribunal clearly attached more significance to its second reason because it said.

"more importantly, although Dr Jennings has expressed his opinions freely in his two reports, unfortunately he has failed, for the most part, to identify his sources for those opinions, or to explain his reasons for arriving at the views expressed by him."

12. If one looks at the structure of the two reports prepared by Dr Jennings, and they are both quite substantial reports, it is clear that he sets out, in the early part of each report, the information that he has been able to obtain. Helpfully most of it is set out in chronological order, so that one can see the build-up of the situation in the Ivory Coast over the relevant period. He then went on in each of the reports to consider the impact of that information upon this particular individual: the probable impact, in particular, if he were to be returned. He came to the conclusion that the impact upon him would be not inconsiderable. At one point he said this:

"In summary, owing to the peculiar nature of [K's] experience in the civil war (part of an ethnic group attacked by one of the main rebel constituencies, fleeing from the rebels after escaping, being a northern Muslim), he is at considerable risk in both the government and rebel controlled areas. By virtue of his ethnicity [that is a convention reason] he would face potential violent threats and actual harm, regardless of whether the particularities of his case were known, in all areas. The political and security situation in Ivory Coast is exceptionally volatile, and has become more so over the course of the last month, and represents a real danger to the safety of [K]."

13. Of course, it may be said that that last sentence can be regarded as merely a comment about an unstable situation attributable to civil war, but it is quite clear that earlier in that paragraph the expert is addressing a risk which is particular to the individual. He addresses it at more than one place. He points out that he was a Muslim from a minority tribe in the western part of the Ivory Coast. Having regard to the experience that he underwent, he might well be regarded as somebody who had taken the side of the rebels. He would, therefore, be regarded as suspect from a government agency point of view.

14. Equally the rebels would know that he was someone who had, on his account, fled from their company after a very short period of time, apparently taking with him a vehicle and, if his account were to be believed, money as well. He would therefore be someone whom, at any rate at local level, they would regard as being not one of them. Therefore, both on account of his ethnicity and on account of his faith, he would be someone who certain people in the Ivory Coast would clearly regard as being a possible target in an unstable situation.

15. Mr Tam invited our attention to a particular part of the reports of Dr Jennings that he said illustrated the way in which Dr Jennings failed to show the sources from which he derived his opinions. Therefore, I read out the passage that appears on page 83 under the heading "Response of MPIGO." That was the rebel group with which the appellant was forced to operate for a short period of time. The passage reads:

"In my view, the leadership are unlikely to actively seek out and harm those who escaped from their control. However, local members of MPIGO might well seek to exact some form of retribution, which could well include extra judicial killing or inhuman punishments, on [K], particularly if a large quantity of money was taken by him. The ability of the leadership to control its members is likely to be weak in the current circumstances, and government soldiers and police in the areas which are still effectively controlled by rebel forces are non-existent. Even once official security forces have been re-established, it is unlikely that they will challenge the authority of MPIGO and they would most likely be drawn from its membership. In the event of an attack, or threatened attack, on [K] there would therefore be little in the way of a support and protection mechanism from the government authorities. If [K] was to be returned to Danane or the surrounding areas my assessment of the risk to him must therefore be rated as high. Rebel supporters and low-level fighters have both the motivation and the ability to carry out reprisals. This risk is most significant for prominent anti-rebel activists, but should an escapee such as [K] be caught or come to the attention of particular elements in MPIGO, there is a substantial risk of reprisal which could result in his death or ill-treatment."

16. Mr Tam's submission is that that passage is not adequately reasoned. For my part, I have difficulty in understanding that submission, having regard to the earlier part of the report which clearly sets out, in some detail, the history of events in that part of the world. Furthermore, Mr Tam submits that the passage is inherently inconsistent because at one point Dr Jennings assesses the risk to the appellant as high, whereas in the earlier part of his opinion he merely talks about possible risks to this individual.

17. As Miss Weston pointed out in reply: where the expert is talking of the risks being high he is assessing the risks if the applicant were to be returned to his native area. One can see, in the structure of the report as a whole, why he would be particularly at risk if returned there. The report does also deal with the possibility of his being returned elsewhere and comes to the conclusion that that would not be a safe alternative option.

18. Of course, it was not inevitable that the Tribunal would accept the views of the expert if it had considered them in detail. It might have come to the conclusion that there were reasons for rejecting the conclusions at which the expert had arrived. It can always be said that in this kind of case it is the function of the Tribunal, in the end, to decide what the risk is. On occasions the Tribunal may have to arrive at a conclusion that is markedly different from that arrived at by one of the experts whose report has been put in front of them. What I, for my part, find difficult about this case is that the Tribunal, in my judgment, did not engage with that part of the exercise. It simply dismissed this expert's report for the two reasons that I have given, namely that he had no first-hand experience of the Ivory cost and secondly, that his opinions were expressed, for the most part, without reference to sources and without explaining his reasons for his views.

19. In my judgment, on the face of it, this expert did clearly qualify as an expert to be listened to. When his reports were read it should have been obvious to the Tribunal that they raised issues that needed to be individually addressed and could not simply be swept aside by saying that the passages, that were critical, were not sufficiently reasoned.

20. I would, therefore, set aside the decision of the Immigration Appeal Tribunal in this case and remit the matter to the Asylum and Immigration Appeal Tribunal for the matter to be reheard and dealt with in an appropriate way. Finally, I should say this: there was some suggestion before us that we should, in this case, express a view about the way in which Tribunals in general deal with expert evidence. I do not regard this as a case in which it would be appropriate to express any view that goes beyond the evidence of this particular expert. If the Tribunal has difficulty with the qualifications of a particular expert, then, as it seems to me, it must explain why it has such difficulty and in this case I do not find the explanation to be adequate.

21. If the Tribunal has difficulty with the content of an expert report, again it must explain why it has that difficulty. Again, for the reasons that I have explained, I would not regard the explanation given here as adequate. The decision, in my judgment, in this case should be regarded as a decision on the facts of this case without any general ramifications.

22. LORD JUSTICE WALL: I agree.

23. THE PRESIDENT: I also agree.