Detamu v Secretary of State for the Home Department

LORD JUSTICE MOSES: This is an appeal pursuant to section 103(1)(b) of the Nationality Immigration and Asylum Act 2002 by virtue of the transitional provisions contained in paragraph 8(3) of the Asylum and Immigration (Treatment of Claimant Bill, etc.) Act 2004. I mention that at the outset of this judgment because it is relevant to one of the issues that has arisen in this appeal, namely as to the approach this court should adopt to admitted errors of law in an adjudication. The appellant appeals against a decision of the IAT dismissing an appeal against the adjudicator. The appeal to the IAT was brought under section 101 of the 2002 Act, permitting only an appeal on a point of law. The IAT concluded that the adjudicator made an error of law but that the adjudicator would have come to the same decision even if he had not made that error. It dismissed his appeal.

The question is whether the IAT was correct in concluding that the error of law of the adjudicator was not material. The facts, as related by the applicant, were that he had arrived in the United Kingdom on 5 November 2003. It is not disputed that he sought asylum the following day. He had come from Ethiopia. He is now 30, having been born on 14 July 1976. His statement of evidence form and his interview showed that he said that he had been a supporter of the Oromo Liberation Front (the OLF) since July 1992. He said that he had joined the organisation in August 2001. He claimed to have worked for that organisation at a high level. He had become a cell leader, distributed leaflets and booklets, arranged meetings and recruited new members in secrecy. He said his father, who had been an active member, had been threatened and harassed by the authorities, as had his elder brother. His elder brother, he said, had been killed by the authorities on 17 September 2001. He himself had been detained, maltreated and tortured by the authorities. In 1994, he claimed to have been detained and maltreated by police over a period of six weeks. In 1998 he was again tortured by the police, over the period of a week. Finally in 2002, he said the Central Criminal Investigation Bureau had detained and tortured him over a period of six days. The authorities had discovered his cell and had sought to arrest him. He went to live with his uncle in secrecy from 10 October 2003, and then paid an agent to smuggle him out of the country on 5 November 2003.

The adjudicator, in his decision written on 7 December 2004, concluded that the appellant was not credible. He described his evidence as particularly vague and lacking in convincing detail. He turned to the question as to whether he believed that the appellant was a member of the OLF. He concluded that he was not. He recorded that, in interview, the appellant had said that the chairman of the party was a man called Dawd Ibsa, and that the party did not have a vice-chairman. The adjudicator pointed out that objective evidence indicated that a different person was acting chairman and there was an identified vice chairman.

The adjudicator then turned to deal with evidence which was accepted to be an error of law, both in the manner in which he dealt with it and in the conclusions he reached about it. He recorded that the appellant had submitted an expert report from Dr Trueman who states that the information concerning the chairman and the vice chairman, as the adjudicator put it, was incorrect. The adjudicator continued:

“I note that there is no independent published verification of that claim. I find the report of Dr Trueman to be biased towards the appellant and reject his evidence concerning the chairman of the OLF, which as I have noted above, is unsubstantiated. I further note that Dr Trueman does not address the issue of the appellant incorrectly identifying when the OLF was formed. I find that if the appellant was involved with the OLF since 1992 as claimed, I find that he would have correctly been able to identify the chairman, vice chairman and year in which the OLF was formed. I found the appellant’s inability to correctly answer these questions correctly indicates [sic] that the appellant was not actively involved with the OLF as claimed by him. I find his claims to be so, to be extremely damaging to his credibility”.

The adjudicator continued at paragraph 28:

“The appellant claims that he supported the OLF since the 1992 [sic] and became a member in August 2001. Even in Dr Trueman’s report he concludes that the appellant’s description of his activities for the OLF do not fit in with his description of being involved at a high level in the OLF as claimed. The appellant claimed to be the leader of a cell. I find his claim in the light of Dr Trueman’s comments and my findings about to be fabricated [sic] and further damaging the appellant’s credibility”.

At paragraph 42 the adjudicator returned to the evidence of Dr Trueman, saying:

“The appellant has produced an expert report from Dr Trueman, that as I have noted above that report does not support the appellant’s claim to be an active member of the OLF [sic] and information contained within that report concerning the leadership of the OLF is unsubstantiated. I attach no weight to that report”.

As I have said, the Secretary of State and the Immigration Appeal Tribunal on appeal to that tribunal accepted that those comments and conclusions about Dr Trueman disclose an error of law. They were right to do so. When one turns to look at that report, bearing in mind that both adjudicators and tribunals have great experience in dealing with and weighing experts in this field, one is surprised to see the conclusions reached by the adjudicator. Dr Trueman set out his qualifications in great detail, disclosing that he had worked with the Oromo people training teams of vaccinators and living with peasant farmers. He describes in his report how members and supporters of the OLF are targeted by Ethiopian security forces (see paragraph 11), and continues at paragraph 23 by saying that the story of this applicant is :

“consistent with my knowledge of the treatment of OLF supporters and their relatives, and the human rights situation in Ethiopia. However, [the appellant’s] description of his activities for the OLF do not fit with his description of his being involved at a high level in the OLF, in my opinion”.

This was a passage noted by the adjudicator. It was important, because it reveals that far from being biased towards the appellant, when there were grounds for thinking that the appellant was not accurate in his description or in his evidence of participation in the OLF, this expert was prepared to say so. A classic sign of a fair witness.

Two paragraphs later, he turned to the question of the identity of the chairman and the issue of the vice chairman of the OLF. He said :

“According to former members and present members of the central committee of the OLF, with whom I am in contact, the OLF was formed in 1973 and became active in 1974. The chairman is Daud Ibsa and has been so since Galassa  Dilbo was forced to step down. Katabe Mayu has never been chairman, so far as I am aware. Since Leenco Lata left the vice chairmanship (1994/5), the holder of this post has always been of low profile, whose name has not been known by the majority of OLF members”.

In the light of that evidence, it is simply not tenable to say that the expert was biased, still less that his evidence was unsubstantiated. The expert made clear the source of his information as to the name of the chairman and the fact that members of the OLF might not be aware of the inconspicuous vice chairman. In short, his evidence did support the very thing that the appellant said about his knowledge of those in charge of the OLF. In such circumstances there was no basis whatever for concluding that the evidence was unsubstantiated and no weight should be given to the report.

Dr Trueman gave evidence in his report as to the risk of someone who has been involved with the OLF, and had supported the OLF, on his return. At paragraph 26 he spoke of what he described as almost certainty of detention, interrogation and being beaten. He said it was likely that one who returned, after involvement with the OLF, would be tortured and spend many months or years in detention, and that it was possible, but unlikely, that he would be killed or made to disappear. He further commented that it would be unusual for it to be quicker than three or four weeks before someone could flee Ethiopia. He said :

“It would not be reasonable to expect someone using this method to flee Ethiopia to arrange it more quickly”.

There is no reference in the adjudicator’s report to either of those two aspects of Dr Trueman’s opinion, no doubt because the adjudicator thought it was biased and no weight should be attached to it.

The adjudicator gave a number of other reasons as to why he did not believe the appellant. I have already referred to the fact that he described his evidence as vague and lacking in detail. He found, relying upon Dr Trueman’s report, that he was not as high level as he claimed (see paragraph 28). The appellant was unable to name a number of other organisations that worked to achieve the same aims as the OLF and came under the OLF’s umbrella. He said that the inability of the appellant to name even one of those groups was extremely damaging to his credibility. He referred at paragraph 30 to the fact that in interview he was vague about the dates of detentions, but subsequently was more precise. He thought that the fact that he had achieved greater precision was extremely damaging to his credibility. He pointed out further discrepancies as to date of arrest (see paragraph 31).

He then identified another discrepancy in relation to the brother’s disappearance. The appellant claimed that he had been killed in detention on 17 September 2001, but the appellant submitted in support of that a letter from the OLF which merely stated that the appellant had disappeared without trace. He referred to the fact that a letter produced in support of the appellant’s claim, from the general practitioner, did no more than recount the appellant’s description of his torture, but did not corroborate it. He found that to be damaging to his credibility (see paragraph 33).

He then referred to documents adduced by the appellant in support of his claim. Apparently the appellant had been able to produce an OLF membership card which he had obtained from a friend who had remained in Ethiopia, but that friend had been unable to produce a summons which the appellant said that he had received to report to the Central Criminal Investigation Bureau. The adjudicator concluded that it was incredible that the friend had been able to produce one document but not the other, and implausible that his friend should carry around so dangerous a document as the OLF card (see paragraph 35). He then said that it was implausible that he should have been under a reporting restriction on a three monthly basis, when no mention had been made of that in his statement of evidence form (see paragraph 36).

He turned to the circumstances in which the appellant had left Ethiopia. He found that the actions were not those of a genuine asylum seeker, since he had remained in the country for one month (see paragraph 37). In that connection he made no reference to Dr Trueman’s evidence. He found an indication that he was not wanted by the Ethiopian authorities in the fact that he had left his wife and children behind and had not encountered difficulties when leaving the country. He also referred to the fact that the appellant claimed to have arrived on a red passport, as it was put, with an agent without being questioned by immigration authorities, which he found implausible. For all those reasons he rejected the appellant’s claim on asylum grounds and human rights grounds. He further concluded that even if this appellant had been an ordinary member of the OLF he would not have attracted the adverse attention from the authorities.

The decision of the adjudicator was appealed to the IAT on 6 December 2004. As I have indicated, the IAT accepted that the adjudicator’s approach and conclusions in relation to Dr Trueman amounted to an error of law. Paragraph 11 said that the adjudicator was wrong completely to discount the report of Dr Trueman. It then turned to medical issues, with which I need not deal, and considered the correct approach to errors of law which had been identified by the IAT. It cited the judgment of Laws LJ in CA v Secretary of State for the Home Department [2004] EWCA Civ 1165, in particular at paragraph 14 where Laws LJ said:

“… an appeal cannot be allowed unless the IAT distinctly holds that the adjudicator has perpetrated an error of law. No doubt it must be a material error of law. If it could be truly shown that the result before the adjudicator must have been the same even if there had been no legal error, there would be scope for the IAT to dismiss the appeal despite the error”.

Before us, Mr Barr who has argued this case with conspicuous clarity and fairness on behalf of the Secretary of State, accepts that that is the appropriate test. He also accepts, as he must, that it is a high burden, falling upon the Secretary of State, to persuade anyone that the adjudicator would have been bound to have reached the same conclusion, notwithstanding an error of law, in relation to the approach to and conclusions about an important piece of factual evidence.

The IAT, in concluding that the error of law which it had identified was not material, correctly observed that in relation to other aspects of the evidence there was no basis for saying that the adjudicator’s conclusions were perverse. That is correct, so far as it goes, but I have already pointed out that Dr Trueman’s evidence went further than merely relating to membership of the OLF. He also gave important evidence about the time it would take before it was reasonable to expect anyone to flee the country and about risk on return to even low level members of the OLF.

Criticism was also made on behalf of the appellant in relation to the comment the adjudicator had made about the medical evidence. The mere fact that evidence is not corroborative does not necessarily damage the asylum seeker who seeks to rely upon it. There may be circumstances in which it will do so, but it was difficult to see on what basis the absence of any support in the GP’s report could seriously be said to damage this appellant’s credibility. But in conclusion, the tribunal said this :

“If this had been his only or central reason for rejecting the appellant’s credibility, the case would have to be reheard. But where there are a number of other bases for his finding so that we are satisfied he would have come to the same conclusion in any event then there is no error of law and the decision is sound”.

I pause to observe, that there would still remain an error of law, but the real point is that it would not be material because the adjudicator would have been bound to have reached the same conclusion even if he had not erred in law.

Although there was some suggestion that this court could only reject the conclusion of the IAT as to materiality if that conclusion was perverse, Mr Barr accepted before us that it was for this court, in the face of the admitted error of law, to determine whether that error of law was material. He was right to accept that. It is wrong to suggest that this court is bound to confine its attention to the decision of the IAT in relation to an error of law. The obligation of this court is to consider the decision of the fact finder – in the instant case the adjudicator – and determine whether there is an error of law; and if there is, to determine whether it was material. This court’s approach, in my view, should be no different to that of the Court of Appeal when reviewing the decision of an Employment Tribunal (see the judgment of Mummery LJ, paragraphs 9 and following in Yeboah v Crofton [2002] EWCA Civ 794). After all, our jurisdiction derives not just from section 103(1)(b) of the 2002 act but from section 15(3) of the Supreme Court Act 1981. When an IAT dismisses an appeal from an adjudicator, the Court of Appeal examines the original decision to see whether the adjudicator did err in law, even on a perversity challenge, or whether there was a wrong approach to the evidence. The court does not ask itself whether the view taken by the IAT in dismissing the appeal was one which could reasonably have been taken as to the decision of the adjudicator. It would be absurd if an appellant was worse off when he has successfully identified an error of law, but the tribunal says it was not material.

So, in my view, the question for us is whether the error of law was material in the sense that the adjudicator must have reached the same conclusion. It has to be said that the decision of the adjudicator was slipshod. Words were missing in his decision; parts were incoherent. It seems clear to me that he had not proof read the decision. In decisions as important as these to the future lives of those seeking refuge here, that does not inspire confidence; but it is not itself an error of law. But the approach of the adjudicator in relation to Dr Trueman was wrong in a material respect. Dr Trueman’s evidence went to the very heart of the appellant’s claim, namely that he was a member and supporter of the OLF and it was for that reason that he had been detained and tortured.

Bearing in mind how significant Dr Trueman’s evidence was, for my part I cannot be confident that the conclusion was not just likely to have been the same, but must have been the same. Undoubtedly, as I have endeavoured to demonstrate, there were a number of matters where many fact finders would have been not only suspicious but may perhaps have disbelieved the appellant. It was important before reaching any conclusion as to the truth of the appellant’s evidence to look at the evidence as a whole and not piecemeal. The evidence included not only the objective evidence, but the evidence of an expert. It is difficult, I accept, but necessary for an immigration judge to give reasons for disbelieving one who seeks refugee status, but the reasons are important not only for the discipline which it imposes upon the fact finder, but also so as to distinguish those reasons which go to the core of the claim and those which are only peripheral. Only by a clear statement of reasons is it possible to distinguish between lies told by an applicant to bolster a genuine claim, and lies which are fatal in undermining his or her case.

It is inevitable, when advancing a case that the decision must have been the same despite an error of law in the approach or conclusion as to fact, that those seeking so to contend will focus on isolated evidence, but that understandable approach must not disguise the fact that the evidence has to be looked at as a whole.

In all the circumstances, I am not satisfied that the decision would have been and must have been the same despite the error of law. It may well have been that the discrepancies as to dates, for example, could have received a more charitable construction if the adjudicator had believed that this applicant was a member of the OLF.

In those circumstances, I take the view that the error of law in this case related to an essential element of this appellant’s claim. I cannot be confident that an adjudicator or immigration judge who had not taken that mistaken view of the evidence would have reached the same conclusion overall. In those circumstances I would allow the appeal.

LORD JUSTICE KEENE: I agree. One cannot say with confidence that the adjudicator would have reached the same conclusion about the appellant’s credibility if he had accepted Dr Trueman’s report and taken it into account. I too therefore would allow this appeal and remit the matter for reconsideration.

LORD JUSTICE PILL: I also agree that the appeal should be allowed and the matter remitted to the tribunal. The adjudicator had before him a report from Dr Trevor Trueman, a medically qualified doctor who has spent years working with the Oromo people in Ethiopia. Though his recent experience has not been in the country itself, he has maintained an informal interest in that country, and indeed is Chairman of the Oromo Support Group. In his report, Dr Trueman carefully set out his experience in that part of Ethiopia and the circumstances which existed there, though he has not been there himself for some years. What he says in the conclusion of his report is that the account given by the appellant is consistent with what he knows of the situation existing in that part of Ethiopia. That is a very common situation in this jurisdiction where expert evidence is called.

An adjudicator’s consideration of an appeal to him does not, of course, end with a consideration of such expert evidence. He will also consider other background material as to the situation in the relevant country, which is placed before him, and adjudicators and the tribunal have developed an expertise in assessing such evidence and considering the various reports before them; expert reports of this kind and more general information emerging from governmental and non-governmental bodies.

Rarely will an expert whose evidence was adduced, as Dr Trueman’s was, be able to speak or write of events concerning the appellant himself. The appellant’s own account must be considered in the light of all the circumstances, which may or may not include circumstances and material arising from the expert’s report.

In this case, the adjudicator made findings of fact on issues, some of which were distinctly adverse to the case of the appellant. Some of them were on issues quite separate from those considered in Dr Trueman’s report, and depended in no way on the attitude of the adjudicator to that report. The adjudicator’s findings were on matters of fact which a fact-finding tribunal might consider to be of varying weight. These will no doubt be explored by the tribunal upon the remission which this court is making. There will be cases where a fact-finding tribunal gives weight to an expert report and still finds the appellant’s evidence incredible, and that is a frequent occurrence.

What, in my judgement, the adjudicator could not do, in this case, was to reject Dr Trueman’s report in the peremptory and comprehensive way the adjudicator did, and without stating why he did so. At paragraph 27 the adjudicator stated:

“I find the report of Dr Trueman to be biased towards the appellant, and reject the evidence concerning the chairman of the OLF, which as I have noted, is unsubstantiated”.

That is a strong comment upon a report of someone with the experience Dr Trueman has. At paragraph 42, the adjudicator considered the report specifically and referred to elements in it. He concluded: “I attach no weight to that report”. If the report was to be rejected in that way, an explanation was required. Moreover, that finding is itself inconsistent with the fact that the adjudicator has relied on Dr Trueman’s report in one respect, in finding that the appellant was not telling the truth on a particular issue.

I repeat that some of the findings of fact of the adjudicator did not depend on the view, whatever it was, of the expert’s report, and there will be cases where ignoring the expert’s report does not invalidate a finding of fact by an adjudicator. I am unable to come to the conclusion that this is such a case. The appellant’s evidence should have been considered in the context of the expert’s report, and the adjudicator’s view on credibility assessed in that context, giving proper consideration to the report.

I am unable to accept, in the circumstances of this case, that it was possible to sustain the decision of the adjudicator, taking the view this court does, as did the tribunal, of the adjudicator’s approach to the report of Dr Trueman. Dr Trueman’s report, was not properly considered, and in this context that amounts to an error of law, with the result which has been indicated in this court.