H v Secretary of State for the Home Department

LORD JUSTICE MAURICE KAY: This is a renewed application for permission to appeal, permission having been refused on the papers by Brooke LJ on 23 March. The applicant contends that he comes from a minority clan in Somalia, and that, as a result, his family and he were persecuted there. He eventually fled to this country via Dubai, arriving here on 20 October 2003 and claiming asylum two days later.

Unfortunately this case has already something of a convoluted history. The Secretary of State refused an asylum and a human rights claim in a lengthy reasoned letter of 7 December 2003. The applicant’s first appeal to an adjudicator was unsuccessful but the Immigration Appeal Tribunal subsequently allowed an appeal and remitted the matter. The appeal was then heard as a reconsideration by an immigration judge in November 2005, she again dismissed the appeal. It is against her determination that the present application is now made.

The determination, the subject of the present application, is based on an adverse credibility finding. In short, the immigration judge found that the applicant is not from the minority clan which he claims, and that he had not suffered the ill treatment in Somalia which he described. That is apparent from paragraph 18(i) of the determination and the paragraphs which precede it.

The complaint which Mr Canter now makes is that the adverse credibility finding and the determination as a whole is vitiated by a failure on the part of the immigration judge to engage with the evidence and submissions made on behalf of the applicant. I confess that when I first read the papers I allowed myself to be guided by the grounds of appeal, which are contained in a document headed “Application for Permission to Appeal”, and inferred that the principal complaint was that the immigration judge had simply adopted the reasoning of the Secretary of State in his letter and the submissions made at the hearing on by the presenting officer on behalf of the Secretary of State.

It seems to me that Brooke LJ was lulled into the same misunderstanding. I say misunderstanding because one only has to listen to Mr Canter for a few minutes to realise that he is approaching the case rather more broadly than that. He accepts that there are cases in which an immigration judge may reach a sustainable decision with reasoning which is adopted expressly from the case for the Secretary of State or even from the refusal letter. However, he submits that this is not such a case. If there were nothing more to this case, I would not grant permission on that ground. However, it seems to me that the grounds of his appeal are not best set out in the document to which I have referred but in the document which he placed before a senior immigration judge when first seeking permission to appeal to this court. It is a document headed “Ground One: Material Error of Law - Reasons”. That in itself is a little confusing, because Mr Canter tells me there is not and never was a ground two. That document is indeed referred to in the “Application for Permission to Appeal”, but only briefly and obliquely.

When one turns to it one finds reference to a number of places in the determination of immigration judge which are then criticized seriatim in a number of lettered subparagraphs in paragraph 6. As it happens Mr Canter did put in a statement under 4.17 of the Practice Direction, but unfortunately that did not reach me until after this hearing had commenced. Now that I fully understand what Mr Canter is seeking to advance I have come to the conclusion, which may turn out to be a generous one, that permission to appeal ought to be granted because it cannot be said that there is a complete absence of prospect of success.

Among Mr Canter’s complaints is one to the effect that to the extent that the immigration judge was adopting the reasoning of the Secretary of State in the original refusal letter she was not engaging with the material and evidence which had emerged since the date of that letter. Thus, submits Mr Canter, the applicant had made a witness statement, dated 27 January 2004, which took issue with and explained his case in relation to many of the points taken by the Secretary of State against him.

Whilst that witness statement is referred to in the determination, nowhere did the immigration judge explain why she was rejecting it as a reasoned response to the letter of the Secretary of State. It may well be that she was entitled to come to the conclusion which she reached, but one is left with an impression of a wholesale reliance on the original letter with no or insufficient explanation as to why the witness statement and the evidence of the applicant were being rejected as responses to that original letter.

I am not going to go through these various items line by line; suffice it to say that if one completes the paper chase required by the way in which this application has been pleaded, one finds a number of significant matters in relation to which we simply do not know or cannot tell that the witness statement and evidence of the applicant were being rejected for good reason.

I said a moment ago that this grant of permission may prove to be a generous one because it seems to me that it may be said that minority clan membership was properly rejected by the immigration judge and, if it was, then everything else by way of description of past persecution and future risk fell to the ground. However at this stage of the proceedings I do not feel that it would be right to proceed on that basis. Mr Canter has provided me with a number of persuasive answers to specific questions that I have raised about different passages in the determination; suffice it to say that in my judgment he has crossed the line and permission will be granted.

I direct that Mr Canter files with the court, within the next seven days, amended grounds of appeal which avoid the need for the paper chase which we have embarked upon in court. It is essential that the court hearing the appeal, and indeed the Secretary of State, have these grounds of appeal in one free-standing document which does not depend upon cross-references and which takes the reader through the criticisms which are sought to be made at the determination of the immigration judge. Subject to that, I direct that three members of the court hear the appeal, at least one of whom should come from the asylum group and that one member of the court may be a High Court judge.