WM (Democratic Republic of Congo) v Secretary of State for the Home Department

LORD JUSTICE BUXTON: The appellant, referred to as WM, comes from the Democratic Republic of Congo. He is of mixed ethnicity being part Tutsi and part Bembe. He claims to have been a member of an organisation called RCD (Goma) and that in September 2002 he was arrested by soldiers from Burundi, apparently because he refused to obey a curfew. He arrived in this country as long ago as March 2003 and sought asylum on the grounds that he was at risk of persecution from foreign soldiers invading his home area.

He has a regrettably long history within the immigration jurisdiction of this country. His appeal was first heard by an adjudicator in 2003, Mr MacDonald. The point made by the Secretary of State, of some relevance in the context that will eventually appear, is that one of the reasons why an appeal was allowed against that determination was that the adjudicator had not explained how the authorities in WM’s home country might become aware of his membership of the organisation RCD (Goma).

Permission was granted for the Secretary of State on that ground and others to appeal against Mr MacDonald’s determination. That matter therefore came back before another adjudicator, Mr Jones, in 2004. The decision that he made on 23 July 2004 was promulgated on 20 October 2004. He found that WM might be at risk if he returned to his home country and that he faced a well-found fear of persecution in his home area, both because of the political affiliations that I have just referred to and also because of his ethnicity: the question in that respect being whether he would be identified as wholly or partly a Tutsi, and therefore subject to persecution on that ground. The Secretary of State again sought permission to appeal against that determination. In his grounds for appeal, which do not appear to be dated but were received by the Tribunal on 27 October 2004, not the only, but the main complaint was that the adjudicator had said that WM faced a risk of persecution on return to Kinshasa “if his past political opinions were known to the authorities.” It was contended that there was no evidence that WM’s past political opinions had been known to the authorities or would be known: because his case had been, not that he was to be persecuted on political grounds, but that he had been mistreated simply because he had refused to co-operate with occupying or invading forces.

It was also contended by the Secretary of State that the adjudicator had misunderstood or had not properly applied evidence as to the hazard in any event to persons in the Democratic Republic of Congo if they had mixed ethnicity such as this gentleman in fact has. Those grounds were considered by a Vice President of what was then the Immigration Appeal Tribunal on 3 February 2005, who held that they were all properly arguable for the reasons that had been given in them and which I have briefly summarised. For reasons that I do not immediately understand, that reconsideration did not take place until February 2006. By that time the new jurisdiction of the Asylum and Immigration Tribunal had come into place which meant that, firstly, there was a reconsideration hearing and, secondly, if the body hearing the reconsideration hearing considered that matters had to be examined further it would then remit the matter to a second Tribunal.

It is important to remind ourselves that this is intended to be, as Mr Ockelton Vice-President had said in an authority drawn to our attention, a seamless process, so that in most or indeed almost all cases the second Tribunal addresses the matters that have been of concern to the first Tribunal. Now, the first Tribunal had a hearing on 10 February 2006 at which Mr WM was represented by counsel. It is the practice for the first Tribunal to draw up what is called a pink form setting out its reasons for its decision that there had been an error of law in the determination -- that being the determination of Mr Jones in October 2004. Because it is of importance in the case I will come back to what that pink form said in this case and what was done with it.

The reconsideration came therefore under this process before Immigration Judge Saffer in a determination on 4 May 2006. That is the determination from which we hear this appeal. He said in paragraph three simply that there had been a material error of law identified in the determination of Mr Jones. He reconsidered the matter and heard evidence, and did not accept any part of Mr WM’s case. He did not accept that he was likely to come to the attention of the authorities and he did not accept that he would be at hazard because of his ethnicity, pointing out that there had been no expert evidence before him to support the contentions made by Mr WM’s then counsel.

Mr WM then applied for permission to appeal to this court and that matter was considered by senior immigration judge Mr Chalkley who said this:

“While much of the application amounts to nothing more than a series of disagreements with the Immigration Judge’s decision, the judge has not set out, either in the body of the determination or as an annexe to it, the reasons given by the panel at the first the stage of the reconsideration for its decision that there is an error of law in the determination.”

Why did that matter? It mattered, or potentially mattered, because of what is said in the practice direction then current for the Asylum and Immigration Tribunal, which at paragraph 14.4 said:

“Where the Tribunal acting under paragraph 14.2 transfers the proceedings, it shall prepare written reasons for its finding that the original Tribunal made a material error of law and those written reasons shall be attached to, and form part of, the determination of the Tribunal which substitutes a fresh decision to allow or dismiss the appeal.”

Mr Chalkley, on the face of his order, granted permission to appeal by reason of the failure to comply with paragraph 14.4 and for no other reason, and he did not grant permission to appeal on the substance of the matter. Before us Ms Jegarajh, who has now taken the case over from counsel who appeared below for reasons that I will indicate in a minute, clearly wished to reopen before this court the whole of the merits of the case, saying that really no part of Mr Saffer’s determination was justified. We did not permit her to do so because she was constrained by the determination of Mr Chalkley, and I say no more about that.

We turn therefore to the ground upon which Mr Chalkley granted permission. It is necessary to say, I fear, a good deal more about that. I revert to the pink form. That started by saying this:

“Counsel for the appellant [I remind ourselves, not Ms Jegarajh] accepted that the adjudicators made an error though not in relation to the finding that the appellant has a well-founded fear of persecution in the east of the Democratic Republic. The question is whether the appellant would have a well-founded fear of persecution elsewhere in the Democratic Republic particularly the point of return in Kinshasa given his political profile and mixed ethnicity.”

The Tribunal then went on to say that they themselves thought that there had been an error of law for two reasons. One, with regard to the political affiliation, that the statement of Mr WM’s exposure had been speculative. That, it will be recalled, was a complaint that had been made of the original determination of Mr MacDonald as well as the complaint made by the Secretary of State with regard to Mr Jones’ determination. Also, the Tribunal on 10 February held that the findings as to ethnicity were superficial and not properly reasoned. Now that was the agenda, as it were, that the first Tribunal posited for the rehearing by Mr Saffer. In the case of Wani, Collins J had to decide whether the reasons in the pink form should be shown to the parties before the second determination. In my view wholly unsurprisingly, he held that they should, because there is little point in setting out reasons why a matter has been remitted if those who have to deal with it at the remission do not have those reasons available to them.

Now in this case two things appear to have gone wrong. The first is that, as we are told in a statement by counsel who appeared before the Tribunal on 10 February and also appeared before Mr Saffer, she did not have access to the pink form until after the hearing before Mr Saffer. Secondly, she has stated in strong terms that she did not accept that the adjudicator had made an error, as the Tribunal understood her to have accepted.

If the pink form had been available or if it had been annexed to the determination and, therefore, if annexed to the determination it is reasonable to think would have been dealt with at the hearing, counsel could have pointed out that a mistake had been made and for this purpose we take from her what she claims, that she did not make the concession. If that had happened, it seems to us that the likely cause would have been that Mr Saffer would have realised that the statement that he had as his agenda might be mistaken and, therefore, might consider that the matter should be remitted to another Tribunal. However, none of that happened.

As I have said, the ground of appeal is only that there was a failure to comply with paragraph 14.4. I, for my part, would wish to make it clear that if that was the only thing which had been omitted, and there was simply a failure to annexe that document, that in itself would not lead to an otherwise impeccable decision being overturned. But the practical point of paragraph 14.4 is, in my view, quite clearly to serve as a reminder that the second hearing takes place in the context of the determination at the first hearing, and on the basis of an accurate account of that hearing. That did not take place in this case, for no fault of the applicant or any of his advisers.

I, therefore, do think that, in the circumstances of this case, the failure to apply paragraph 14.4 was a material error. In her careful submissions for the Secretary of State, Ms Demetriou has urged two things: first, the fact that the pink form was not available does not seem to have made any difference to the submissions that counsel was able to make to Mr Saffer; and secondly that, as counsel herself had very fairly agreed in her statement, on 10 February the Tribunal did not simply take what they understood to be her concession and examine the matter no further. In fact there was substantial argument on the basis of which the Tribunal indicated that it was not persuaded by counsel’s submissions.

I see the force of those contentions. But I fear that one has to consider the reality of the way in which appellate tribunals operate. If a tribunal believes that counsel has accepted or conceded a point, I do not say at all that its subsequent determination that it considers that concession to be correct, as the Tribunal clearly did in this case, will be insincere or be inadequately reasoned. But we all know that there is liable to be a difference of focus and a difference of approach when a tribunal is, on the one hand, considering whether a concession is correct and, on the other hand, starting from scratch in not believing that there has been any concession at all.

The problem in this case is that to some extent we have to speculate about what would have happened and what attitude the various tribunals would have taken. That is caused by the root fact that the pink form was not attended to at the hearing before Mr Saffer. I consider that it would have been properly attended to if it had been brought home to Mr Saffer that that form had to be incorporated in or attached to his determination, particularly in the light of the, if I may respectfully say so, clearly correct determination of Collins J in Wani.

It is most regrettable that this gentleman has been in the immigration process now for something nearly approaching four years, and has gone through now three determinations as to the merits of his case; though, as Miss Demetriou pointed out, two of those determinations, although favourable to him, were found by subsequent tribunals to have been made on inadequate grounds. But for the reasons that I have indicated, it seems to me important first that the relationship between the first and second determination should be respected and, secondly, that decisions in this very delicate field should not be taken under any form of misapprehension.

I see no alternative but to allow this appeal. The matter will have to be remitted to the Asylum and Immigration Tribunal to determine what happens next. I say no more about whether it is really necessary for this person’s case to be further contested. That is not a matter for me.

So for those reasons I would allow this appeal.

LORD JUSTICE LONGMORE: I agree. The unfortunate consequence of allowing this appeal is that there may now have to be a fourth hearing on the merits of the appellant’s case. But a conclusion of a tribunal based on misapprehension that counsel had conceded that there was an error of law cannot, at any rate on the facts of this case, safely be allowed to stand. The position will not, one hopes, arise in the same way under the new 2006 practice direction because the “pink form”, as it is called, will be circulated to the parties before the reconsideration hearing (see 14.3 of that practice direction). If counsel then finds that she is said to have made a concession which she has not in fact made, counsel will be able to endeavour to correct that perception before the reconsideration proceeds to take place.

As it is, I agree that this appeal must be allowed.

LORD JUSTICE CARNWATH: I also agree. I would emphasise that this is, I hope, an exceptional case on the facts. But it is also a salutary reminder of why it is important that the parties should be provided with the reasons for the decision reached at the first stage consideration as soon as practicable. I am happy to see that that is now incorporated in the revised practice direction. That, of course, was not in force at the time of these decisions but Collins J in Wani had spoken to the same effect. I also note that Mr Ockelton as Deputy President dealt with the matter in a case called JA (Ecuador) [Practice on Reconsideration Wani Applied] [2006] UKAIT 00013. He made clear that the ruling in Wani required the reasons be given at the end of the first stage and communicated to the parties. He added that if the directions are not clear, or if the reasoning is too exiguous to form part of the Tribunal’s determination, then those who were responsible for writing them should be asked to expand them into a form in which they can properly appear in the final determination.

He did not there deal with the situation which we have, where there has been a simple mistake in the reasons. No doubt consideration will be given in the light of these judgments as to how that this issue should be dealt with in the future.