T v Secretary of State for the Home Department

LORD JUSTICE DYSON: This is an appeal from the decision of the Asylum and Immigration Tribunal (“AIT”) dated 8 April 2005 dismissing the appellant’s appeal against the decision of 2 December 2004 by Mr John Aitken, Adjudicator, whereby the appellant’s appeal against the refusal by the Secretary of State to allow his asylum claim was dismissed.

The appellant is an Eritrean subject. He was born on 20 May 1988. His case is that he fears persecution from the authorities in Eritrea because he is a Pentecostal Christian. His parents are Orthodox Christians who converted to the Pentecostal religion in about 1998. He told the Adjudicator that other Pentecostal Christians would come to his parents’ home on Thursdays and Sundays and that his brother also converted to the faith in about 2001.

He said that on 14 May 2004, as he was returning home, he saw some soldiers pushing his parents and other members of the congregation around. Fearing that the authorities would arrest him, he fled to his aunt’s house. Two days later, he travelled to stay with his uncle in Asmara. There he continued to go to Pentecostal meetings. He stayed there for some five weeks. Then with his uncle’s help, he came on his own to the United Kingdom on 22 June 2004. A month later, he claimed asylum. The Secretary of State refused his application but granted him discretionary leave to remain until May 2006, his 18^th birthday. The position taken by the Secretary of State was that the appellant’s case that he was a Pentecostal Christian was not credible.

It is necessary to refer to the Adjudicator’s determination in a little detail. He referred to some of the background material. This showed that members of minority churches (including Pentecostal Christians) have at all material times been subject to persecution in Eritrea. The Adjudicator said that he did not find the appellant to be a credible witness. He said that the account given of the appellant’s conversion to the Pentecostal faith six years later than that of his parents and three years later than that of his brother was not credible. The Adjudicator accepted that a member of the Pentecostal Church may not seek baptism until he or she is of sufficient age to understand what it means, but children are brought up as members of the faith. He said that there were numerous examples of child members of the faith within the appellant’s bundle that was placed before him.

At paragraph 24 of his determination, the Adjudicator said this:

At paragraph 25, the Adjudicator noted that in his SEF the appellant had not referred to his religious beliefs, but he said:

The Adjudicator noted at paragraph 26 that the appellant had been assiduous in attending religious services since his arrival in the United Kingdom, including Pentecostal Fellowship evening services. Of this, the Adjudicator said:

At paragraph 27, the Adjudicator said that the appellant’s account that he had spent five weeks in Asmara continuing to attend Pentecostal meetings was implausible in view of what he said had just happened to him. Had it occurred, the Adjudicator would have expected the appellant to have obtained some verification of his account. But, said the Adjudicator, once again bearing in mind the appellant’s age, he did not hold against him the failure to provide any supporting evidence of the persecution of his family.

At paragraph 28, the Adjudicator noted that the appellant was asked what contact he had had with members of his family in Eritrea, and that the appellant had said that he had had none and that he did not know how to contact them, nor did he even have an address for his uncle. Of this the Adjudicator said that it was incredible, even given the appellant’s age. He noted that for the uncle to arrange for the appellant to come to the United Kingdom without offering a means of then seeing how he was faring, either by telephone or even address, was simply incredible. The appellant claimed not to know his uncle’s address or that of any member of his family but, in the view of the Adjudicator, that was also implausible given that he had lived in the house for five weeks before leaving and knew how to find his aunt’s house when he left his own area. All of this, in the judgment of the Adjudicator, undermined the appellant’s credibility.

At paragraph 29, the Adjudicator noted that the appellant had not claimed to be a refugee immediately upon entry to the United Kingdom, and that he had explained this as being based upon his following the instructions of the agent. This was an explanation the Adjudicator found difficult to accept but once again, because the appellant was a minor, he did not hold this against him.

At paragraph 30, he noted that he had been asked to consider the appellant’s account in the context of Eritrea. This he did. He pointed out that there had been house raids and people detained in Eritrea, and to that extent the appellant’s account was consistent with the background information, and that was something that the Adjudicator bore in mind.

At paragraph 31, the Adjudicator concluded in these terms:

The appellant was given leave to appeal. His grounds of appeal to the AIT were elaborate. The principal complaints were that the Adjudicator had erred in law in rejecting the appellant’s account as “incredible”. It was said that his reasons for rejecting that account were unsupported by evidence and that the Adjudicator had failed to follow relevant guidance as to the allowances that should be made for a child’s inability to explain in detail the circumstances leading to his claim. It was also said that the reasoning at paragraph 24, which was central to the Adjudicator’s decision, was irrational.

In dismissing the appeal, the AIT said at paragraph 4:

On behalf of the appellant, Miss Weston submits that, contrary to the views expressed by the AIT, the Adjudicator did indeed make a number of errors of law. Essentially, she repeats the grounds of appeal that were advanced before the AIT. She submits that the reasoning at paragraph 24 of the Adjudicator’s decision was irrational. As I have said, paragraph 24 contains the full reasoning, because it is in that paragraph that the Adjudicator explains why he does not accept that the appellant was an adherent to the Pentecostalist faith or indeed that his parents were either. It seems to me that the Adjudicator explained carefully why he rejected the appellant’s evidence on this point and his explanation, far from being irrational, is entirely rational and cogent. The paragraph speaks for itself and in my judgment, the complaint that it contains an error of law is unfounded.

Miss Weston also submits that the Adjudicator paid no more than lip service to the need to bear in mind that the appellant was a minor and that he did not take proper account of his age or the fact that he was in this country as an unaccompanied minor. I have already referred to several passages in the determination where the Adjudicator said in terms that, having regard to the appellant’s age, he was not willing to hold against him a factor which appeared to be unfavourable to his case. In my judgment, the suggestion that the Adjudicator was doing no more than paying lip service to this feature of this case is unwarranted. Indeed, in the opening paragraphs of his determination, the Adjudicator makes it abundantly clear that he is well alive to the need to pay particular attention to the appellant’s age. He says at paragraph 1 that he bore in mind Guidance Number 8 on Unaccompanied Children in conducting the appeal in his approach to it. Accordingly, no members of the public entered the hearing, and the appellant was seated alongside a member of social services who had been involved in his case and was well-known to the appellant. He requested that she should sit next to him.

The Adjudicator was satisfied that the appellant was aware of the nature of the proceedings and was given breaks appropriate to his age. He was able to confirm, both before the hearing and at the conclusion of the evidence, that he was happy with the proceedings, and indicated at the end that he felt everything had been said in his case. Since the submissions were longer than anticipated, the appellant was given the option of not returning after the lunch adjournment. At paragraph 2, the Adjudicator said that:

Miss Weston makes further points. She submits that the Adjudicator did not take full account of the fact that the appellant’s account was both internally and externally consistent. She makes the point that he maintained that he was a Pentecostal Christian from the very outset of the screening interview, which was conducted as soon as was practicable after he made his application. It is true that the Adjudicator did not expressly refer to that point. He did, however, refer to the fact that the appellant’s account was consistent with the objective background material about Eritrea. There is no reason to suppose that the Adjudicator did not have the internal consistency of the appellant’s account in mind when he reached his decision.

Finally, Miss Weston makes the point that the Adjudicator did not consider whether the fact that the appellant had gone to the Pentecostal Church in the United Kingdom gave rise to a prospective risk of persecution on his return to Eritrea. This is not a point which was dealt with by the Adjudicator because it was not a point that was advanced on the appellant’s behalf as an alternative to his principal case. It seems to me that it is not therefore open to Miss Weston to complain that there was an error of law on the part of the Adjudicator in failing to deal with this particular point.

Standing back from the detail of the argument advanced persuasively by Miss Weston, I am quite satisfied that there was no error of law in this Adjudicator’s determination. The complaints made essentially amount to complaints of an entirely factual nature. This was the very point upon which the appeal to the AIT foundered, as stated in paragraph 4 of the AIT’s decision. I would dismiss this appeal, expressing my full agreement with paragraph 4 of that decision.

LADY JUSTICE HALLETT: I agree.

LORD JUSTICE BROOKE: I agree, and I wish only to add a few words about the procedure in cases of this kind. It is now fairly well-known that since the creation of the new Asylum and Immigration Tribunal, this court prepares a bundle which is considered by a judge of the court when deciding whether to grant permission. Under the old practice there was often a considerable delay before the appellant’s lawyers, or sometimes the appellant in person, provided for the court all the documents that were needed, and there was also a very serious waste of public funds in preparing for an appeal on a point of law a very large bundle which contained a great many pages which had no relevance at all to the fairly limited point of law which the Court of Appeal was to consider. Under the new practice, the staff of the Civil Appeals Office prepare the bundle from the documents which have been provided for it by the AIT, and they now set the bundles out in a prescribed order so that it is convenient for judges of the court to find their way around it. Sometimes the appellant’s solicitors at that stage wish to add a few documents to the bundle which are referred to in the determination. And in my experience, the Lord Justice who is considering permission to appeal will sometimes himself or herself ask for further documents to be provided by the appellant’s solicitors that are not in the bundle, which generally contains simply the formal documents such as the original refusal, the determinations within the tribunal, the applications for permission to appeal and so on. The practice is provided for in paragraph 21.7 of the practice direction to Part 52 as it was amended last year.

This does not mean to say that if permission to appeal is granted, the parties are not under the duty set out elsewhere in the practice direction to agree between themselves if any further documents need to be added to the bundle for the purposes of the appeal. Paragraph 7.11 of the practice direction to part 52 provides that if the respondent wishes to rely on any documents which he reasonably considers necessary to enable the appeal court to reach its decision on the appeal, in addition to those filed by the appellant, he must make every effort to agree amendments to the appeal bundle with the appellant. In an AIT appeal the appellant will himself file very few documents, but this practice direction refers to the bundle for the appeal. So if, as on this occasion, Miss Laing had wished to add a limited number of the pages from the voluminous objective country material, the practice direction prescribes that both sides get together and ensure that the bundle is appropriately enlarged.

On this occasion, in ignorance of the new arrangements in the practice direction, the appellant’s solicitors filed a large bundle of documents which ran to 94 pages. Counsel for the respondents, when permission to appeal was granted, filed this useful bundle of 15 pages from the objective country evidence, and then the appellant’s counsel, not being sure what bundle of documents the court had, filed a new bundle just before this hearing of 62 pages to which were added 195 pages of objective evidence. I only mention this because one of the vices of the old arrangements was the expense of the copying, and if it is a three judge court, copying for three members of the court and to counsel on both sides – and I dare say, to other people – of pages of objective country evidence which are never going to be referred to, still less when there is a very recent country guidance decision of the AIT as there was in this case. This is a complete waste of tax payers’ money.

This court is very conscious of the financial pressures both on appellants’ lawyers, when acting under legal services commission funding, and on the legal services commission itself. I have added this short judgment of my own to make clear what the appropriate practice is and, more importantly, why practice has been changed, in order that this completely unnecessary copying in relation to points of law for the Court of Appeal should, if possible, come to an end.