PO (Nigeria) v Secretary of State for the Home Department

The applicant, represented today by Miss Chandran, is a young Nigerian woman who was brought into this country by a man who I think can be briefly and accurately described as a Nigerian gangster, for the purposes of enforced prostitution. After months of repeated rape she escaped and, with the help of the Poppy Project, sought refuge and protection here. Her reward has been a decision of the Home Office to send her back to Nigeria.

An immigration judge (Mrs Malins) allowed her appeal, holding her entitled to both refugee and humanitarian protection. The Home Office’s appeal to the AIT, however, secured a reconsideration on all issues except certain specified facts which had been determined by Mrs Malins in the applicant’s favour. Although it now appears from the pink form (as it is called) that the reconsideration was formally directed to be before a panel of two immigration judges, one of them to be a senior or designated immigration judge, in the event it was reheard by a single immigration judge, Mr Grant, who reached a decision opposite to that of Immigration Judge Malins.

This question of the constitution of the tribunal, in my view, itself calls for investigation. In the reasons given by the judges conducting the first stage of the reconsideration decision, at paragraph 21 reference is made to “a full stage 2 reconsideration before a different Immigration Judge” -- which conflicts with the order itself to which I have referred. This is a matter which I think requires attention because it is arguable that if the direction was for a two-judge panel, the single judge second-stage reconsideration was a nullity.

This is a ground which I have given Miss Chandran leave to add because it is only on the late disclosure of the pink form that it has come to her attention. But she seeks permission to appeal against the determination on a number of grounds, which I have to say at once Auld LJ, on consideration of the papers, considered to be no more than challenges to fact-findings in what was, for better or for worse, a thorough and careful determination.

On renewal, however, Miss Chandran submits that her case is, in more than one respect, a viable legal challenge and not merely a dispute about the facts. The first ground is that the first stage tribunal -- having found two discrete errors of law, namely in relation to internal relocation and sufficiency of protection -- ought to have limited the second stage to these two matters and not to have set the whole case (bar the fact findings in paragraphs 12.1 and 12.2) at large again. She cites in her skeleton argument sufficient authority in this court to give the point life, albeit it is a point which she has been able to take only (as in relation to the other point) on sight of the pink form.

The submission which needs to be added to the grounds (and again, for which she needs and has my leave) is that the second immigration judge ought therefore not to have re-determined the issues of whether the applicant’s fears were well-founded and whether she was a member of a particular social group, both of which had been determined in her favour and as to which no error of law had been found.

If the well-foundedness of the applicant’s fears was legitimately before the second tribunal, it is submitted that the immigration judge’s decision on it is flawed by his failure to take into account the expert in-country evidence of Ms Olateru-Olagbegi, which had been accepted and accorded weight by the first immigration judge. This, too, with great respect to the contrary view of Auld LJ, I consider to be arguable as an issue of law and not merely of fact because it is evidence which was capable of having had a critical impact on the outcome. With it goes a submission that other in-country evidence going to the sufficiency of protection and emanating from the U.S. State Department and UNHCR was also ignored. There may, in my view, be substance in Ms Chandran’s contention that the second immigration judge has cherry-picked unfairly among the in-country evidence to which he did give attention.

There are then submissions that the second immigration judge ignored relevant and undisturbed fact findings made by the first immigration judge; that he erred in his approach to the relationship of internal flight to the objective foundation of the fear of persecution; that his re-determination of the applicant’s membership of a particular social group was deficient, and that evidence about her mental state and the impact on it of removal was dismissively treated by him. These submissions too appear to me viable; the remainder probably less so; but since they interlock I do not propose to sever any of them at this stage. It will be for counsel to make the most realistic and economical presentation that she can of her points when the appeal, for which I propose to give permission, comes on.

There is, however, in my judgment, another reason for granting permission to appeal. This woman was brought to this country by a criminal who should not have been allowed in, and was compelled by force to provide sexual services to men living here. Her reward, now that she has finally escaped, is to be returned to a country where she will certainly be without social or familial support, will be expected to move to a strange region and try to find work there and might still be at risk from the same predator. Some might think she is owed better than this. This court is not a court of morals, but it is a court which, in my view, will want to look with great care at an outcome such as was arrived at here by a single immigration judge in sharp contradiction to that of another immigration judge and at a hearing which it appears was intended to be conducted by a two-judge panel, one of them senior in status.

I would add this. The test applied by the second immigration judge was the test of exceptionality which is now known to be an incorrect application of article 8(2). Although this error is not at present one of Miss Chandran’s grounds, it may be that the moral case which I have mentioned would have been accorded to rather more weight if the correct exercise of assessing not exceptionality but proportionality had in fact been gone through. This too may deserve attention.