ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
B E F O R E:
LORD JUSTICE CHADWICK
LORD JUSTICE LONGMORE
LORD JUSTICE CARNWATH
VLADIMIR SOLONINA
Appellant
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR S JAISRI (instructed by Messrs Bart Williams & Co) appeared on behalf of the Appellant
MR K BEAL (instructed by Treasury Solicitor) appeared on behalf of the Respondent
J U D G M E N T
LORD JUSTICE CARNWATH: This is an appeal from a decision of the Immigration Appeal Tribunal which they gave on 1 September 2004. The background was a claim for asylum by the appellant who lived in the Ukraine before he came to this country. He was a member of a local Ukrainian Orthodox Christian Church. He claimed to have been subject to attacks by local Greek Catholics on two particular occasions, which resulted in him suffering severe injuries, and he claimed that the police had failed to protect him.
His claim was refused by the Secretary of State. There was an appeal to the adjudicator, which was heard in March 2002. However, following an appeal to the IAT, the matter was remitted to be re-heard before another adjudicator, and so the matter came before Mr Hollingworth in January 2004. His findings are conveniently summarised in the IAT's decision:
The Appellant's claim can be summarised as follows. He lived in Ivano-Frankovsk, in West Ukraine and was a qualified engineer with his own business. He was a member of the congregation of a local Ukrainian Orthodox Christian Church. He did not hold any particular office in the Church but assisted the local priest by for example driving him about from time to time. He said there was an ongoing conflict in the area between the Orthodox Christians and the Greek Catholics, who formed the majority of the local population. His problems allegedly began on 5 March 2000. He heard noises outside his church. He went outside to investigate and found himself embroiled in a fight. He suffered concussion and cuts and bruises and required hospitalisation for twelve days. The Appellant then received threatening telephone calls telling him not to persist with any complaints against his attackers. Nevertheless the matter was reported to the police, who made inquiries but there were no arrests. Thereafter he suffered harassment and intimidation from the Greek Catholics, which he reported to the police, who failed to take the complaints seriously. The second incident was on 15 October 2000 in Mikulichia, a village some 50 km from his home. He went to arrange for the use of the Church in that village by the Orthodox Christians the following Sunday. Afterwards he was beaten up in the churchyard by Greek Catholic members of that congregation. His car was vandalised and personal belongings including his and his wife's passports were stolen. He was hospitalised again. On 17 October 2000 his shop was looted. He did not consider that he could live safely in Ukraine as he could not relocate elsewhere due to registration requirements. He came to the UK on 3 December 2000, with his wife and daughter, and applied for asylum two days later."
The adjudicator's conclusions on the factual matters are again summarised conveniently by the Tribunal:
The Adjudicator accepted that the Appellant was an Orthodox Christian and married man with one child, who was the owner of a business. He was not involved in politics and his involvement with his Orthodox Church was at low level, limited to regular attendance and essentially driving his local priest around. The Adjudicator accepted that the Appellant was the subject of an attack on 5 March 2000, but did not accept his account of this attack. His evidence about how he became involved was unclear. It would appear to be purely by chance rather than any targeting. The medical evidence provided in support of his claim showed no more than the Appellant attended a local medical centre. It made no mention of hospitalisation or of any treatment beyond the provision of painkillers. There is no mention of any appointment to see a specialist. Thereafter the Appellant continued with his business until October 2000, without any further serious incidents. The Adjudicator considered there was no objective evidence of religious violence or persecution involving the Orthodox Church or the Greek Catholic Church. He concluded that if the Appellant had complained to the police they would have investigated the matter, especially if there were witnesses.
The Adjudicator rejected the Appellant's claim that he had received threatening telephone calls, given the vagueness of the evidence about them and the Appellant's evasiveness when questioned. At all events at no attempt was made to carry out any threats between March and October 2000. The Adjudicator rejected the credibility of the Appellant's account of the attack on 15 October 2000 and its seriousness. He did not consider that the Appellant would have been targeted by Greek Catholics 50 km away from his home. There was also a material inconsistency between his various accounts. In his statement of April 2002 he complained about lack of police support when he was able to identify the culprits. Yet at the hearing he said that he did not know who his attackers were. The Adjudicator concluded that there was a sufficiency of protection available for the Appellant in his home area. If as he latterly maintained he did not know who his attackers were in the October incident, the lack of arrests did not imply that the police were uninterested. The Adjudicator rejected the claim of the vandalisation of the Appellant's shop because there was no evidence of any report to the police and no evidence about when the incident occurred and how the damage was caused. It was implausible that if the police had been involved in investigating the attack on 15 October, the Respondent would not have mentioned to them this attack on his shop as well. The Adjudicator did not accept either that the Appellant's and his wife's passports were stolen or his later claim that the police had recovered them but refused to return them. His reason was the unsatisfactory and confused evidence given by the Appellant about this."
As appears from that, the adjudicator accepted some parts of the account but had serious doubts about the credibility of the appellant on a number of issues, and considered that his account had been seriously exaggerated. He rejected the case that there had been any activities amounting to persecution. He also considered that there was the possibility of internal relocation. He said at paragraph 56:
"Even were I to have found the appellant's account credible, I find as a fact the internal flight alternative is available to him. There is freedom of movement generally in the Ukraine. He is a comparatively young man and notwithstanding his claim to be depressed would be likely, I find, to obtain work in his employment as an engineer readily in the Ukraine in an alternative location. I accept there would be some administrative obstacles to overcome in the event of return. But given the appellant's age and general description, in my view, the internal flight alternative cannot be said to be unduly harsh."
The adjudicator accordingly dismissed the appeal on both asylum and human rights grounds.
At this particular time the only appeal allowed from the adjudicator's decision was on a point of law to the Immigration Appeal Tribunal. That was a change of the previous law under which there had been a right of appeal on law and fact. The change took effect in relation to adjudicator determinations made on or after 9 June 2003. That was explained by this court in a case called CA v Secretary of State for the Home Department [2004] EWCA Civ 1165, a decision published in July 2004.
It is fair to say that the regulations by which the changes were made may not have been apparent -- or certainly their effect was not apparent -- to all those involved, as this case illustrates. The grounds of appeal, drafted apparently by the appellant's solicitors, included a whole range of challenges to the factual conclusions of the adjudicator. Indeed, the word "law" is not mentioned anywhere in those grounds of appeal. Notwithstanding that, the IAT gave permission to appeal in March 2004 observing simply: "the grounds of appeal are arguable". So it appears that the IAT itself may not have appreciated at that stage that the law had changed.
The case became before the IAT on 11 August 2004. The appellant was represented by Mr Jaisri of counsel, who has appeared before us, and the respondent by Ms Hart, the Presenting Officer. The case took a slightly unusual turn because, as the IAT record in paragraph 6, both representatives agreed before the IAT that:
"The Adjudicator had not, in his adverse credibility findings concerning the core elements of the claim, adequately dealt with the substantial volume of corroborative material before him".
The corroborative material had referred to difficulties between the Orthodox Church and the Greek Catholic Church in the West Ukraine, particularly about the use of church buildings, and therefore could be seen as giving support to the appellant's claim about the disagreements and the attacks.
The Tribunal further recorded:
"Both representatives had therefore agreed further that if the core claim were to be material to the outcome of the appeal, then the matter would have to be remitted for hearing afresh by another Adjudicator."
Accordingly, the IAT then went on to consider whether the adjudicator's decision in relation to the internal flight alternative was affected by the problems over the core claim. They said:
However the Adjudicator's adverse credibility finding concerning the retention by the police of the Appellant's and his wife's passports, and his conclusion that there was a viable internal relocation option that would not be unduly harsh, were distinct issues that were not contradicted by the specific corroborative material and were potentially dispositive of the appeal. The appeal before us was therefore essentially concerned with these matters and it proceeded on the basis of taking the core claim at its strongest."
Mr Jaisri has told us that he submitted to the Tribunal that it was not appropriate to take that course, and that it was not possible to deal with these two matters separately. However, it is clear from that paragraph that the Tribunal were satisfied that it was appropriate to go on to consider the internal flight alternative as a separate matter.
They then set out Mr Jaisri's submissions in these terms:
Mr Jaisri relied upon the report by Dr Chenciner [an expert who had given a report to the adjudicator], which showed that although the old propiska system of registration, it had been replaced by a similar system that required a person moving to a new area to de-register with the police in his old area and to re-register with the police in the new area. Having a passport was also an important requirement. There was extensive corruption in the Ukraine, which would provide difficulties for the Appellant in moving elsewhere. The test of undue harshness would be met by the level of corruption the Appellant would have to address. The cost of bribery could be substantial."
The Secretary of State's representative challenged that on the basis of the CIPU report, showing that there was freedom of movement in the Ukraine which was respected in theory and practice. There was no reason why the appellant could not obtain the necessary consents to move. Indeed the police would have no reason to object to his moving because, if he was a source of potential difficulties to the local catholics, they might well be pleased to see him move elsewhere where this would not be a problem. The appellant's own evidence showed that a lost or withdrawn passport could be replaced by attending at the police offices and filling in a form. Dr Chenciner had not identified any specific reason why the appellant would be unable to complete the registration requirements. He was educated as an engineer and would find it easy to find employment and would be a welcome addition to a new area.
The Tribunal considered those submissions. They started by dealing with the question of what had happened to the appellant's passport. The appellant had said that the police had taken his passport and had refused to return it. That account was strongly challenged before the adjudicator and was rejected by the adjudicator who did not accept the appellant's evidence on that point. The Tribunal said this at paragraph 10:
"First with regard to the passports, we can see no error of law in the Adjudicator's conclusions in paragraph 49 of the determination that it was implausible in the context of the Appellant's evidence that the police would have withdrawn his passports and driving documents. There was no good reason for their wanting to do so, and if they had recovered these documents after they were stolen, they would not have so informed the Appellant if they did not want him to have them back, if he wanted to get them. As we have indicated, there is nothing in the documentary evidence to undermine the sustainability of this conclusion by the Adjudicator. Nevertheless, even if the Appellant's account were true and for some reason the police had withheld his and his wife's passports [there] is no good reason why he could not attend the police station and apply to have them back or to have new ones, and no good reason why the police would refuse to oblige, subject perhaps to the payment of a small bribe, of which we shall say more later."
They went on to consider the requirements for moving to a new area, and they took into account Dr Chenciner's report which dealt with the registration system applying in the Ukraine. I do not need to set out in any detail their findings on that. There was some discussion about the possibility of overcoming any problems by payment of a bribe. One of the points made by Mr Jaisri had been that a bribe would be prohibitive and make the relocation option unduly harsh. The Tribunal did not accept that assertion. They did not accept that the levels of bribe required would be a practical hindrance:
"Dr Chenciner refers to a study on corruption that indicated a bribe of $200 might normally be required to obtain such registration, though this is bound to be speculative to some extent. We do not consider that the need for registration or the cost involved if bribes are required are sufficient to prevent internal relocation or to make it unduly harsh, especially when contrasted with the cost of using an agent to come to the UK."
They accepted that police in the appellant's home might well be happy to see him go. They concluded in agreement with the adjudicator, that the internal flight alternative was a reasonable option. They ended by saying this:
"The payment of small bribes are it seems a normal part of everyday life in Ukraine. The Appellant is a trained engineer and had his own business. He would be much more able than most Ukrainians to afford the relatively small sums required to effect internal relocation within Ukraine, especially when compared to the cost of smuggling himself, his wife and his daughter to the UK.
Accordingly we can see no error of law in the Adjudicator's conclusion that the Appellant and his family have a viable internal relocation option within Ukraine and that it would not be unduly harsh to expect him and his family to use it rather than seek international protection."
The Tribunal refused permission to appeal to this court from that decision. However, permission was granted by Latham LJ, who said this:
"It is clear that the material which persuaded the Home Office representative before the Tribunal to accept that the adjudicator's finding as to the applicant's treatment at the hands of the Catholics was flawed went to his credibility; there is a real prospect of persuading the court that as a consequence both the adjudicator's and the Tribunal's conclusions in relation to the issues of documentation and internal flight could have been affected by the adverse finding on credibility, and accordingly should have been remitted for a re-hearing."
Before us, Mr Jaisri has submitted two grounds as set out in his skeleton. There were originally three grounds, but the third (relating to the IAT's reference to the possibility of a bribe) has not been pursued as a separate point. The first submission he puts in this way:
"In a situation where the Tribunal chose to assess the applicant's case at its highest, to include the acceptance of credibility of the applicant's account, it was unlawful for the Tribunal to then seek to separate the issue of credibility under two heads, especially when they did not have the benefit of receiving oral evidence. It is inconsistent for the Tribunal to seek to separate the issue of credibility into areas in which the reasoning of the IA could be isolated from one distinct area of the applicant's account over the next area of the applicant's account. Credibility is an indivisible concept ..."
The second ground is put in this way:
"The IAT erred in stating in the alternative that even if the appellant's account was true as to the difficulties that he was having with the authorities, there was no good reason why the applicant could not get his documents back. It is submitted that the IAT failed to consider that part of the problems that the applicant has is with the collusion of the authorities with those individuals who are targeting the applicant. This is an essential explanation that the Tribunal failed to consider in making this assessment."
Dealing with the first of those, which seems to me the one on which Latham LJ focused in the grant of permission, I should refer to one authority on which Mr Jaisri relies. That is a case called Erdogan v Secretary of State [2004] EWCA Civ 1472. I need not consider the facts. The relevance for present purposes is that the adjudicator had disbelieved the applicant in that case on a number of points. The Tribunal had accepted that one of the points on which the adjudicator had relied for disbelieving him could not stand, but they had gone on to uphold the decision on looking at the matter more generally. It was suggested that that was not an appropriate course. Auld LJ quoted the remarks of Laws LJ when he granted permission:
"I apprehend with great respect that what perhaps lies behind this approach is that there are obvious difficulties, in truth difficulties of fact and common sense rather than difficulties of law, in seeking to compartmentalise an account given by a witness or party and to produce a result whereby once the basis for disbelief in one respect is shown to be faulty, nevertheless the others are, so to speak, hermetically sealed."
The Court of Appeal having noted that cautionary comment, were satisfied on the facts of Erdogan that it was possible on the basis of the material which the IAT had accepted to justify their conclusion.
While I of course accept that caution is appropriate, it must depend on the facts of the particular case, and the nature of the issues in the particular case, as to whether it is necessary to look at credibility issues as a whole, or whether it is possible to look at certain issues separately.
In this case it seems to me that the Tribunal were perfectly entitled to treat the adjudicator's finding on this issue as a separate matter. He dealt with it at paragraph 56, the paragraph I have quoted, and made clear that his finding on that was not dependent upon the credibility issue. Had the Tribunal simply found that that disclosed no error of law, it would have been difficult to criticise their decision. However, they did go on to consider the matter more broadly. I did have some concerns whether the course they took was appropriate in relation to an appellate jurisdiction confined to law. In CA, Laws LJ, having emphasised that the jurisdiction is confined to points of law only, said this at paragraph 15.
"That aside, once a material error of law is shown, I for my part would accept that the IAT must then decide what if any relief to grant in the light of the facts arising at the time it is considering the case. The appellant's skeleton argument prepared for the permission application accepts as much. The judicial review court, and this court on appeal in cases where our jurisdiction goes to legal error only, proceeds in precisely the same manner. In this particular jurisdiction, this position is effected by section 102 which I have read."
That makes clear that, having found an error, it is open to the Tribunal to go on to consider whether, on the material available, they can resolve the matter. I think Mr Beal, for the Secretary of State, accepts that in this case the Tribunal perhaps stretched that approach to its limits, in the sense that they went into quite a wide-ranging examination of the factual material. However, as he says, that in fact was potentially for the benefit of the appellant, in that they were looking beyond the simple finding of fact by the adjudicator. Furthermore, there was no application by either side to call further witnesses for cross-examination. So as a matter of practicality, one can understand why the IAT thought it appropriate to deal with the matter in the way they did.
In doing so, they endorsed the findings of the adjudicator on the question of the passport. They also found that, even if that were not correct, the evidence showed that it would be possible to relocate in practice, albeit possibly with a payment which the appellant would be able to afford.
It is said that the questions surrounding the passport were tied up with their findings on questions of the appellant's credibility. However I think the IAT were perfectly entitled to take the view that the finding on that issue could be upheld without being undermined by the matters which had led to the acceptance that there was an error in relation to the core claim. They said the corroborative evidence did not impinge on that issue. In any event, they dealt with the issue of relocation on the alternative basis that, even if the appellant's evidence relating to the passport was accepted, relocation was achievable.
So, in my view, there is no substance in this ground of appeal. It was a matter for the Tribunal to decide on the facts of this case whether it was appropriate to deal with the internal flight alternative as a distinct issue. I can see no error of law in their approach to that point.
The only other ground of appeal which is still in play is the one relating to collusion. I asked Mr Jaisri to identify the evidence which it was said that the IAT failed to take into account. He referred me to two extracts from the interview note of the appellant. One was dealing with his suggestion that the police had failed to investigate his complaints. In answer to the question: "What did the police say?", he said: "At first they said: 'we will take measures to stop that'. But afterwards they said: 'think about it, you should stop doing whatever you are doing'." The other was his explanation for applying for asylum, where he said: "I also believe that the Greek Catholic Church are supported by the authorities and thereby apply the law unfairly towards members of the Orthodox Church". On any view, that is fairly thin evidence of collusion. But when one looks at the grounds of appeal from the adjudicator to the IAT, there is no mention of this issue, even among the numerous matters which are covered in those grounds. Nor in the record of Mr Jaisri's submission to the IAT is there any emphasis put on this point. In those circumstances it seems to me that the IAT cannot be criticised for not having dealt in specific terms with that issue. In any event, having regard to the very slim nature of the evidence there was, I cannot see that it would have in any way affected their decision.
For those reasons I would dismiss this appeal.
LORD JUSTICE LONGMORE: I agree.
LORD JUSTICE CHADWICK: I also agree.
Order: appeal dismissed