Abdullah v Secretary of State for the Home Department

LADY JUSTICE HALLETT: The applicant is a citizen of Sudan. He arrived in the United Kingdom on 31st August 2003. He applied for asylum the next day on human rights grounds and claiming a well-founded fear of persecution by reason of his religion, his political opinion and his race. His application was refused by the Secretary of State for the Home Department on 27th October 2003. He appealed to an adjudicator who found against him in a decision promulgated on 17th February 2004. He appealed to the Immigration Appeal Tribunal where he was represented by the Birmingham Asian Resource Centre. On 28th October 2004 the Tribunal dismissed his appeal. He was not advised as he should have been as to the deadline for attempting to appeal the tribunal's decision. He complained to the Office of the Immigration Services Commissioner who upheld his complaint. He, therefore, requires an extension of time in which to lodge his application to appeal the decision of the tribunal which, if satisfied there was any arguable ground, I would be content to grant him.

I turn to the applicant's claim and the basis of the decisions of the adjudicator and of the tribunal in more detail. The applicant claims he is of mixed Fur and Nuba ethnicity. He says that his father was a tribal chief who was himself arrested on a number of occasions in the Sudan. His grandfather too he says was subjected to ill-treatment. He says they both suffered because of their political activities. He claims he became concerned for his own safety because of his own political activities and fled the area in which he had been brought up. He stayed within Sudan. He maintains that initially he kept a low profile but he resumed his active membership of the Sudanese People's Liberation Movement ("SPLM").

The applicant also says he has been brought up as a Muslim but he has renounced his religion and is now non-practising. As a result other Muslims resent him. He claims that as a result of the combination of his race, religion and political activities he has been detained by the authorities in Sudan on three occasions and subjected to physical ill-treatment of which he still bears the scars.

He relied upon a report from a Dr Steadman who said that the scars found on the applicant's body were consistent with torture and the doctor also said that the applicant suffers from ongoing and unspecified "psychological problems".

The applicant says that since arriving in the United Kingdom he has remained in touch with the SPLM and has attended their meetings. He produced a witness before the adjudicator who claimed that he met the applicant through the movement's activities. Pausing there, from my reading of the adjudicator's findings it seems that the evidence of that witness carried little weight with the adjudicator.

The adjudicator did, however, accept the ongoing problems in Sudan. At paragraph 37 of his determination, he referred to its poor human rights record. He referred to the problems of those who belong to opposing political parties. He referred to the fact that people may be detained and are frequently kept incommunicado. He also referred at paragraph 38 to the fact that the Sudan is a religiously mixed country, although Muslims dominate the National Governing Institution. He said the number of detentions of people because of their religious beliefs appears the have decreased in recent years. He accepted that prison conditions are harsh.

He observed, however, that international objective evidence indicated that returning asylum seekers with proper travel documentation are treated the same as other Sudanese nationals. If a Sudanese national has been abroad for more than 12 months they are required to report to the tax authority and they may have to answer some questions. Generally speaking, however, the Foreign Commonwealth Office suggested that the government of Sudan is encouraging refugees and asylum seekers to return home.

The adjudicator noted that at the time of the adjudication the applicant had no membership card of the SPLM. He found that the applicant was at most a low-level member of the SPLM. He was prepared to proceed on the basis that the applicant may have been detained on two occasions and released without charge. He rejected as implausible, however, the applicant's account of having been detained for a third time and having escaped with someone he did not know. The details of the escape are fairly limited and come from the applicant’s immigration interview. He insisted that he had been in a cell when, in the early hours of the morning, someone he did not know arrived, got him out of the prison, put him into the boot of a car, and drove off. He was given female clothing and dressed as a woman made his escape via Port Sudan. Having found that the story of the escape was implausible he observed that the applicant had been released on each occasion he was detained without charge and on each occasion he had been released he had returned to his political activities.

The adjudicator expressed a degree of scepticism about the account the applicant gave of his involvement in SPLM activities in the United Kingdom and doubted that the applicant had experienced any persecution on the grounds of his religious beliefs. The applicant had made no mention of any persecution because of his race in his witness statement or evidence and in interview the highest he put it was that he had been insulted by people calling him a non-Muslim.

The adjudicator further doubted his claim to mixed ethnicity but found himself, on the evidence before him, unable to make a determination for this he was later criticised by the Tribunal. The basis for the adjudicator’s doubts was that the applicant speaks only Arabic. Had the applicant the background he claims, including the fact that he lived in the Nuba region of Sudan with mixed parentage until 1996, the adjudicator said he would have expected a knowledge of a language other than and in addition to Arabic. In summary, therefore, the adjudicator found the applicant was of no interest to the Sudanese authorities on the basis of race, religion or political activity.

Before the tribunal the applicant wished to rely on what was described as fresh evidence. This was, according to Mr Mahmood who now represents the applicant, a membership card issued by the London office of the SPLM in February 2004 and a witness statement from the applicant himself. I do not have the benefit of this material but Mr Mahmood has helpfully summarised it for me to this effect: in his witness statement the applicant described how he had continued his political activities whilst in the United Kingdom and since the adjudicator's decision. He insisted that he does have a sufficiently high profile in the activities of the movement to be of interest to the authorities on his return. The applicant was concerned to assure the court that the fact that he speaks only Arabic is no reason to doubt his Nuba blood.

Mr Mahmood has based this appeal fairly and squarely on the applicant's political activities and he argues that the fact that the tribunal decided not to receive the so-called fresh evidence was an error on their part. In fact, the tribunal seems to have considered the membership card but found that it advanced the case very little further if at all.

Mr Mahmood criticised the tribunal for failing to mention ENR v Secretary of State for the Home Department [2004] EWCA Civ 49. He referred me to paragraph 49 of the judgment of this court which refers to the practical realities of hearings in the asylum legal system. He submitted that if there is good reason why evidence has not been admitted before an adjudicator or a tribunal then the court should think very carefully before rejecting it. A certain degree of flexibility must be allowed to people who are attempting to put forward what they say are genuine claims to asylum. He argued that in the present case this evidence had not been available to the applicant before the adjudicator - the membership card itself was not issued until February 2004 - and he wished to ask the tribunal to bear in mind that he had continued to attend meetings after the adjudicator had reached his decision.

Mr Mahmood also placed particular reliance upon the expert report of Dr Steadman which the Tribunal found had been wrongly ignored in the Adjudicator’s determination. Mr Mahmood submitted this evidence supported the applicant's claim to having been tortured as a result of his political activities. The tribunal, however, did not accept that Dr Steadman's report constituted a corroboration of his account of having been tortured. Even if he had been ill-treated in the past the tribunal found there was no evidence before them to suggest that this man was of continuing interest to the authorities.

Mr Mahmood argued that both the adjudicator and the tribunal had failed to address the significance of the periods that the applicant says he spent in detention. If the adjudicator accepted, as he appeared to do, that the first two detentions took place, these were not minor matters but they were significant periods of time - on one occasion three months and on another occasion six months. They led to serious ill-treatment which in turn led to the scars that he now bears.

Mr Mahmood also criticises the adjudicator for failing to provide any or any sufficient reasoning for his rejection of the account of the escape as implausible. Similarly, he argues that the tribunal has compounded the same error by simply stating that they could see no reason to go behind the determination and therefore they proceeded on the basis that the applicant had been released without charge after each of the detentions.

Mr Mahmood therefore criticises both the tribunal and the adjudicator for what he argues is a material error of law in that both have failed to provide sufficient reasoning for their decision.

In his written submissions Mr Mahmood also argued that the tribunal had set for itself the task of deciding the applicant's membership of a political organisation and the new material would have gone to that issue. In fact, as he conceded very properly in argument this was not a task the tribunal set for itself. The only tasks it decided to undertake were assessing the applicant's ethnicity and Dr Steadman's report. Having assessed the applicant's ethnicity they found against him and they found that he had not discharged the burden upon him to establish that he was of mixed Fur and Nuba origin. AS far as Dr Steadman’s evidence is concerned, the Tribunal was not persuaded that it went so far as to establish that the applicant had ever been tortured let alone that he had been tortured in the recent past.

Turning therefore to so called fresh evidence of the applicant’s political activities, I am satisfied, as the Tribunal was satisfied, that this was dealt with fairly and squarely on the facts by the adjudicator. The adjudicator had been prepared to accept that the applicant may be a member of the SPLM but his finding was that such membership, if any, was at a low level, there being no independent or objective evidence of his being involved at any higher level. In my judgment a membership card does no more or no less than support that finding and therefore I find the approach adopted by the tribunal in respect of the membership card entirely understandable and justifiable.

Similarly, I accept the tribunal adopted a perfectly proper approach to the further witness statement that the applicant wished to put before them. There has to come a time when the applicant has put his case as best he can and merely putting a further witness statement before an appeal tribunal detailing meetings attended since an adjudication does not, in my view, meet even the broader and more flexible test suggested by Mr Mahmood. I therefore reject the ground of appeal based on the refusal of the tribunal to admit fresh evidence.

Mr Mahmood has done the best he can with the grounds advanced by the applicant himself, but, in my view, this is and always has been essentially an appeal on the facts dressed up as an appeal on a point of law. The findings of fact made by both the adjudicator and the tribunal were plainly open to them on the evidence as presented. Save for the question of the escape, both the adjudicator and the tribunal have clearly provided what must be conceded are adequate reasons for their decision. I shall not rehearse the detail of the findings but I have read both decisions with care and I am forced to the view there is very real reason to doubt the applicant's ethnicity and his having a real and well-founded fear of persecution on his return.

The claim that he is of mixed Fur and Nuba origins remains very much in doubt. Even if a few Nuba do speak Arabic, as the tribunal found, one would have expected the applicant to pick up a few words at least of one of the languages spoken by at least one of his parents. I also note, as the adjudicator noted, that only a few Nuba have converted to Islam but those who have are tolerated. In summary, therefore the tribunal in my view rightly considered it unlikely, although not impossible, that the applicant would have been brought up as a Muslim in a Fur/Nuba household living in a Nuba region, speaking neither of his parents' languages and then subjected to persecution on the grounds of race or religion.

The fact that the applicant's credibility in these respects is seriously open to doubt must also lead one to doubt his claim to persecution on the grounds of his political activity. The claim that he has been detained and tortured in the past is far from established. Dr Steadman's evidence does not in my view corroborate his account; Dr Steadman can only opine that the scars are consistent with torture, not that they have been caused in such a way. There may be many other possible causes. In any event, the medical evidence did not stand alone. It fell to be assessed in the light of the totality of the evidence. If the adjudicator was entitled to reject the applicant's account as I and the Tribunal have found, the applicant failed to establish sufficiently or at all that he had been ill treated let alone tortured. On the applicant's own account, if he was detained, he was released twice without charge there being no evidence against him. On the adjudicator's findings he was released three times without charge.

The adjudicator was also entitled to take into account the independent evidence coming from international sources as to what happens to failed asylum seekers on their return to the Sudan. That evidence indicated that failed asylum seekers returning home, even without proper documentation, will not necessarily be subject to any ill-treatment unless one can call being questioned and ordered to pay back taxes ill-treatment.

I accept that it might have been preferable for the adjudicator to have given a slightly fuller explanation of why he rejected the claimed escape as implausible, but it may be there was little more to be said. The applicant claimed that, out of the blue, somebody he did not know came to his cell in the middle of the night and whisked him away from the prison. The adjudicator heard the applicant give evidence. He heard it tested. He found it lacked substance on a number of matters for which he gave sufficient reasons. Accordingly, I am not persuaded that the alleged failing in just this one area amounts to an error of law justifying the intervention of this court or at all.

In summary, therefore, given the evidence as presented, it comes as no surprise to me that both the adjudicator and the tribunal found that this applicant, whatever has happened to him in the past, is of no continuing interest to the authorities. I agree with both that this applicant has failed to establish that he will suffer persecution on his return home.

Mr Abdullah is in court and I should like to reassure him that I have read all the papers in the case. Mr Mahmood has not mentioned the grounds of appeal that he personally advanced, but I have considered them. The applicant goes into some detail as to the history of Sudan and his ethnicity. As I am hope, Mr Abdullah will appreciate, I cannot entertain an appeal on the facts. Mr Mahmood must do what he can to advance an appeal on a point of law and in my judgment none of the grounds advanced by the applicant in person or by Mr Mahmood raises an appeal on the law which has a reasonable prospect of success.

Therefore, despite Mr Mahmood's very helpful submissions, I fear that this application must be refused.

Having refused the application on the merits, I do not need to deal with the application for an extension of time, but as I have said I would have been prepared to grant it had I considered this to be an arguable appeal.

I am sorry Mr Abdullah. I do not know how much of that you understood but I am afraid I found against you.

MR MAHMOOD: My Lady, the appellant appears with the assistance of public funding. Might there be detailed public assessment of his costs, please?

LADY JUSTICE HALLETT: Of course, Mr Mahmood, and thank you again for doing your best to get the case in order. I have absolutely no doubt that you said and did everything that could have been said on Mr Abdullah's behalf.