Rusiga v Secretary of State for the Home Department

J U D G M E N T

Friday, 14 March 2005

1. LORD JUSTICE AULD: Lord Justice Laws will give the first judgment.

2. LORD JUSTICE LAWS: This is an appeal brought with permission granted by Latham LJ on 10 November 2004 against the decision of the Immigration Appeal Tribunal ("the IAT") notified on 18 August 2004, by which the IAT allowed the Secretary of State's appeal against the determination of the adjudicator. The adjudicator had allowed the appellant's appeal against the dismissal on 30 April 2003 of her asylum claim and consequent refusal of leave to enter the United Kingdom. The adjudicator's decision was promulgated on 8 January 2004. The adjudicator crisply summarised the appellant's case on the facts as follows:

"5. An outline of the appellant's claim is that she is a Burundi national of Hutu ethnicity and that she comes from Buyenzi in Bujumbura. She claims that she fears persecution from the Tutsi based Burundi and the government and military. When the appellant was seven years old she fled with her family to a camp in Tanzania. When the family returned in 1993 the appellant was with her husband. Her parents were then burnt alive in an attack by Tutsi soldiers. This resulted in the appellant, her husband and two children returning to a refugee camp in Tanzania.

6. In 2000 the appellant, her husband and family returned to Buyenzi. The appellant's husband started working as a driver transporting goods between Tanzania, Uganda and Burundi. The government suspected him of being allied with rebel groups. As a result attacks took place on the appellant and her family. The first attacks took place in 2001 when she and her husband were badly beaten and she was raped in front of their two children. The appellant was admitted to hospital. Her husband was arrested and detained for approximately three months during which period he was tortured. After his release the appellant's husband attempted to recommence work but could not because of threatening letters from Tutsi soldiers. Two weeks later Tutsi soldiers attacked the house again. The appellant was raped and beaten and her husband was taken away. She has not seen him since and does not know what has happened to him. The soldiers set fire to the house. The appellant fled the house with her children. As she was fleeing she lost her eldest child and does not know her whereabouts. The appellant fled to a nearby church where the priest allowed her and her youngest child to stay for three months. The priest sold the appellant's pickup car and the proceeds were used to pay an agent. The agent drove her to Bujumbura airport where she flew by helicopter to Uganda and on to the UK."

3. She arrived in the United Kingdom on 19 November 2002 and applied for asylum on the same day. At paragraph 10 of his determination the adjudicator recorded the Secretary of State's acceptance that if the appellant were found credible, then on the facts she did entertain a well-founded fear of persecution. The issue in the case was whether, as she claimed, the appellant was a national of Burundi at all. Her evidence was that the only language she could speak was Swahili. The Home Office Presenting Officer submitted that in that case she could not be Burundian. He submitted that on the evidence while Swahili was widely spoken in and around the capital, Bujumbura, and is the first language in certain Muslim neighbourhoods, nevertheless all Burundians know the Burundian language - that is, Kirundi, though they may speak it with regional variations. The official languages of Burundi are Kirundi and French. The Secretary of State's case was that it was not credible that if the appellant were a Burundi national she could not speak Burundi at all.

4. The adjudicator rejected the Secretary of State's submission. He held at paragraph 17 that, bearing in mind the lower standard of proof, he was satisfied that the fact that the appellant only spoke Swahili did not bar her from being a Burundian and it was "more than reasonably likely" that that is what she was. The adjudicator proceeded to consider the credibility of the appellant's account of what had happened to her. Then he held:

"26. Such inconsistencies as there are in her statements of evidence of are in my judgment minor and do not challenge the overall symmetry and substance of her story.

27. Weighing all the evidence for what it is worth and considering it cumulatively in the light of the challenges to it by the respondent I find the appellant creditable and accept her story as I have summarised it in paragraphs 5 and 6 above. I find that the appellant had suffered persecution in the country of her nationality, Burundi, because of her ethnicity and because of her imputed political opinion."

Accordingly, the adjudicator allowed the appellant's appeal both on Refugee Convention and Human Rights grounds.

5. There is a particular point relating to her credibility to which, in light of the Secretary of State's case, I should refer. That is the adjudicator's reference at paragraph 6 to the appellant's flight by helicopter from Bujumbura to Entebbe. He was asked how long it took and she answered in interview: "Not many hours. Not know exactly. About 30 minutes." She seems to have given the same answer in cross-examination: possibly she did not use the words "not know exactly".

6. Now, the distance from Bujumbura to Entebbe is 318 miles. A time estimate for the journey of 30 minutes is therefore clearly wrong. As is submitted in Mr Tam's skeleton argument for the Secretary of State, it would imply a speed close to the speed of sound. The adjudicator does not refer to the distance, but it seems that he was referred to it, for he says at paragraph 25:

"Bearing in mind the distance involved and the appellant's rough estimate as to the length of the helicopter journey from Bujumbura to Entebbe the appellant's evidence in this regard appears credible."

7. The Secretary of State put forward two grounds of appeal to the IAT. The first was that the adjudicator had erred in law in finding that the appellant was a Burundi national. Reference was made to a statement in a CIPU report paragraph 2.1 to the effect that all Burundians know Kirundi but may speak it with a regional accent. This was the very material that had been relied on by the Secretary of State before the adjudicator. Accordingly, it was said that if the appellant spoke only Swahili it was not open to the adjudicator on the evidence to find that she was a Burundian. The second ground relates to the evidence about the helicopter journey. The submission is that the adjudicator's findings at paragraph 25, which I have read, is unreasonable and perverse. I should add that there is under this ground a further point not pursued today, that it was also unreasonable of the adjudicator to accept part of the detail of the appellant's account of her escape. That, it seems, concerned her statement that she was hidden only one metre from the house so that she could observe the soldiers' actions while remaining hidden from them. It is not necessary to say any more about that.

8. The IAT granted permission to appeal on the grounds put forward. At the hearing before the IAT, at which the appellant was unrepresented, the Secretary of State was apparently permitted to adduce further evidence going to the language issue. This was paragraph 2.6 of the Burundi Country Report of April 2004 which stated that, according to the Office of the UN Commissioner for Human Rights, Kirundi is spoken by the entire population of the country. Complaint is made about the omission of this evidence but, for reasons which will become apparent, it is not necessary to say more about it. In allowing the Secretary of State's appeal the IAT said this at paragraph 10:

"In the light of the objective evidence before us, which clearly states that Kirundi is an official language, which is spoken by all Burundians, we find that the appellant's inability to speak or even understand the language, means that she is not a nation of Burundi. We take note of the fact that the respondent who has being in the United Kingdom for only three and a half years can understand and speak English rather well. Yet she cannot understand and speak the language of the country of her claimed birth, where she had lived and worked for over seven years at least. That is certainly not credible. Accordingly we find that the Adjudicator's conclusion that the respondent is Burundian is unsustainable even on the evidence that was before him."

9. The IAT also held at paragraph 11 that the adjudicator's finding with regard to the issue of the journey time to Entebbe and the circumstances of her hiding when she observed the soldiers were "wholly unsustainable". So it was that the IAT allowed the Secretary of State's appeal.

10. The appellant's principal ground of appeal against the IAT's determination calls attention to section 101(1) of the Nationality Immigration and Asylum Act 2002 which restricts appeals to the IAT against adjudicators' determinations promulgated since 9 June 2003 to points of law only. The date of 9 June 2003 is given by the relevant commencement order. This circumstance, plain enough from the statute, was given emphasis in the decision of this court in CA v Secretary of State [2004] EWCA Civ 1165. In this present case, as I have said, the adjudicator's determination was promulgated on 8 January 2004. In the grounds of appeal to this court and in counsel's skeleton argument it is submitted for the appellant that the Secretary of State's grounds of appeal put before the IAT were no more than points of disagreement with the adjudicator's factual conclusions. And it is said that for its part the IAT did not identify any error of law in allowing the Secretary of State's appeal. It is also said that the process before the IAT was unfair, because the appellant, being unrepresented, was expected to deal with points of law and fresh evidence. And there seems to have been no interpreter at the IAT.

11. The IAT allowed the Secretary of State's appeal without any direction that it be reconsidered by another adjudicator. It was simply allowed on its merits, so that the appellant's substantive claim stood rejected in accordance with the Secretary of State's original decision-letter.

12. For the Secretary of State Mr Tam, at paragraph 4 of his skeleton, refers to the IAT's conclusions that the adjudicator's findings of the appellant's Burundian nationality was unsustainable even on the evidence before him, and therefore the Secretary of State (paragraph 5 of the skeleton):

"... acknowledges that the tribunal did not distinctly find that the error which it considered that the adjudicator had made was an error of law. Accordingly the Secretary of State does not seek to support the tribunal's determination, and accepts that the Court of Appeal should allow the appeal to the extent of remitting it for rehearing by a differently constituted tribunal."

13. The issue between the parties today is whether, as Mr Tam contends, the case should be remitted to a differently constituted tribunal, or whether the appeal should be allowed outright on the footing that the adjudicator's decision was not flawed by any error of law so there was no basis under the Act of 2002 for interfering with it.

14. Mr Tam submits that the adjudicator's conclusions concerning the appellant's nationality (in the light of her inability to speak or understand Burundi) and her credibility, in the light of the distance between Bujumbura and Entebbe and her estimate of the journey time in the helicopter, were conclusions which were not legally open to him on the evidence: that is, they were perverse in the Wednesbury sense [1948] 1 KB 223. He also submits that the adjudicator's determination is flawed by want of proper reasoning. He says that the Secretary of State should have the opportunity of arguing his substantive points of law as regards her nationality and the Kirundi language and the issue of the journey time before another tribunal.

15. The point on the journey time from Bujumbura to Entebbe is not, in my judgment, a Wednesbury point at all. The adjudicator did not, on a fair understanding of paragraph 25, find that a helicopter could indeed fly 318 miles in 30 minutes. The adjudicator's finding in that paragraph is simply to the effect that he was accepting the appellant's overall evidence about the matter, including that part of her answer when she had said it took not many hours. There is no perversity here. The adjudicator was certainly not required to infer that the appellant's journey either did not happen or started from somewhere outside Burundi. The reference to 30 minutes has all the hallmarks of a mistake by the appellant. There is neither a perversity point nor a reasons point arising on this part of the case.

16. As to the argument relating to language, it is to be noted that the adjudicator and the IAT had other evidence beyond the statement in the CIPU report that all Burundians know Kirundi and the fact that the appellant only had Swahili as a language. The adjudicator said at paragraph 17:

"... the appellant has apparently answered correctly the other tests put to her by the respondent in relation to her nationality."

These consisted of a number of questions, correctly answered by the appellant in interview, about a series of geographical, political and other facts relating to Burundi.

17. There was also the fact that the appellant is, with respect to her, not an educated person and was raised as a Moslem in an area, or areas, where, according to the CIPU reports, Swahili was the first language. Mr Lewis has further submitted this morning on the appellant's behalf that the statement in the CIPU report that all Burundians know Kirundi does not seem to be vouchsafed by any primary source that has been identified. In my judgment, the adjudicator's conclusions on the language and nationality issue, as I may call it, though possibly surprising, cannot be categorised as perverse.

18. I should say that Mr Tam, for the Secretary of State, has pressed his submission that on this part of the case the adjudicator's conclusions were not properly reasoned. I do not agree. The adjudicator has referred to the extent at which, and places where, Swahili is spoken as a first language and to the other tests put to the appellant. He referred in terms to the passage in the CIPU report relied on by Mr Tam and has reached the conclusion, to my mind giving perfectly good reasons for it, that implicitly the statement of the CIPU report cannot be literally true, and overall the evidence is that this woman is a Burundian national.

19. In the circumstances the adjudicator's determination was in my judgment not flawed by any error of law such as should, after 9 June 2003, have engaged the IAT's jurisdiction. The IAT was wrong to allow the Secretary of State's appeal. There is no legitimate basis on which the case should be remitted for reconsideration.

20. I would therefore allow this appeal and restore the decision of the adjudicator. If that decision is unsatisfactory on the merits of the matter - as to which I express no view - the fact that the Secretary of State now possesses no remedy is a consequence of the terms of section 101 of the 2002 Act on its true construction.

21. LORD JUSTICE SEDLEY: Mr Tam has rightly disavowed any reliance on the IAT's decision, which improperly substituted its own evaluation of the evidence for the adjudicator's.

22. I agree with Laws LJ that there is no good ground for remission to the IAT. This was, in my judgment, a perfectly tenable and properly reasoned decision of the adjudicator which discloses no error law. It exemplifies in practice the process of fact-sensitive reasoning spelt out by this court in Karanakaran v Secretary of State [2000] IAR 271. It contrasts rather sharply in this regard with the dismissive reasoning of the IAT who, if I may say so, seem to have forgotten that probabilities are not everything.

23. Remission to a differently constituted IAT would achieve nothing legitimate. There being no detectable error of law in the adjudicator's decision, the only possible outcome would be to uphold it. I too, like my Lord, would allow this appeal outright.

24. LORD JUSTICE AULD: I also agree that the appeal should be allowed and that the decision of the adjudicator should be restored.

25. On the main issue, whether the adjudicator erred or arguably erred in law in concluding that it did not follow from the fact that the appellant spoke only Swahili that she was not a Burundian, his decision on the evidence before him might seem surprising to some. But that does not necessarily make it perverse so as to amount to an error of law entitling the Immigration Appeal Tribunal to intervene. Nor, given the incompletely sourced objective evidence before the adjudicator, the uncertainty of the application of such evidence to the circumstances of the appellant and her otherwise entirely credible account, the Tribunal should not have concluded, as it did, implicitly, that the adjudicator's decision was perverse.

26. As to the second issue, the credibility of the appellant's flight to Entebbe, for the reasons given by my Lords, the adjudicator was entitled, on the appellant's vague evidence as to timing, to find it credible. There is not, in my view, the beginning of an argument of perversity in that respect.

(Appeal allowed; Respondent to pay Appellant's costs; costs to be the subject of a detailed assessment).