TD (Ivory Coast) v Secretary of State for the Home Department

LORD JUSTICE TUCKEY: This is an appeal with the permission of the AIT from a decision of a two judge panel of that tribunal, who, on a reconsideration, dismissed the appellant, Miss D’s, appeal from an adjudicator’s decision. The adjudicator had dismissed the appellant’s appeal from the Secretary of State’s refusal to grant her asylum. The appeal raises a point about what the tribunal at the first stage of the reconsideration actually decided. This involves looking at the procedural history of the case, but first I will deal with the facts upon which the claim for asylum and the later related human rights claim was based.

The appellant is now 38. She is a citizen of the Ivory Coast. Her father is a Peuhl, a minority ethnic group originally from Mali but who now also live in the north of the Ivory Coast. Her mother was part French and part Baole, a group who form part of the Akan majority, who come from the south of the Ivory Coast. The appellant claimed that neither she nor her parents were regarded as true Ivorians and as such were persecuted and discriminated against by those who were.

The appellant’s account of her life in the Ivory Coast is harrowing. It was accepted by the adjudicator and is set out at some length in the tribunal’s decision and I do not need to repeat it in detail. But during her upbringing the appellant’s parents’ farm was invaded by majority ethnic groups, their cattle were stolen, they were threatened and told to leave and their complaints to the local police were ignored. In 1989 the appellant’s sister was raped by police following her arrest and involvement in a student demonstration. Her sister’s complaint to the police about this led to her suspected murder by the police, who claimed that she had committed suicide by hanging whilst in their custody. The appellant started a business trading in cosmetics which involved her travelling to neighbouring countries. In 1997 the authorities refused to renew her passport because her name was not Ivorian. She was then only able to travel using her identity papers and temporary passes: laissez passer. These papers were confiscated several times. She was often harassed at borders and had to pay bribes to the border police and others in order to get by.

She said that in Abidjan, where she was living, people who are Peuhl and other members of minority groups were frequently harassed and detained by police. One such incident occurred in September 1999 when one of the appellant’s neighbours was arrested. When the appellant intervened on her behalf, both women were taken to a forest where they were raped by two police officers. The other woman, who had recently given birth, died two days later. Three months later the appellant was arrested with a number of other women for no good reason, kept overnight with them in a cell and then questioned aggressively about her ethnic origins.

In 2000 there was a national referendum about whether people of mixed ethnicity could stand for President. The appellant and others of mixed ethnicity in favour of this being allowed attended a demonstration on 31 July 2000 where they were attacked by police and beaten. All the women were then rounded up, taken to the police station, stripped and questioned about their ethnic origins. As she was walking home shortly after her release, she was attacked and raped by two men. Her statement said that she recognised one of the men as the leader of a youth group and supporter of the ruling party. Before she was raped one of the men said: “This is one of those people who knows how to demonstrate in this country. We will show her that if she knows how to demonstrate we know how to rape”. The appellant left the Ivory Coast the next day because she was afraid that she was at further risk from the police, that the persecution she had experienced would get worse and that she might be killed like her sister if she complained.

The appellant arrived in the United Kingdom via Paris on 2 August 2000 and claimed asylum. She was not however interviewed, for reasons which are not explained, until March 2004, following which she appealed the Secretary of State’s rejection of her claim for asylum to what was then an adjudicator. The adjudicator’s decision dismissing the appeal was promulgated on 14 June 2004. She gave a number of reasons for her decision, but in paragraph 14 said:

“However, what she endured in the past, that is harassment, difficulties with customers, having to bribe officials and the unfortunate rape and her father’s and sister’s problems, in my view, although tragic and deeply unpleasant do not, in my view, engage the Refugee Convention and is possible harassment not tantamount to persecution.”

And in paragraph 15:

“… the brutal rape of herself in the forest by two police officers … I find that, whilst it is possible that she may have indeed been raped, it is not necessarily the case that this was for a Convention reason, but may have been the act of ill-disciplined officers”.

So that is how the adjudicator characterised the two incidents of rape. I read her findings as indicating that if she had found those incidents amounted to persecution she would have found persecution for a Convention reason. However, her characterisation of the incidents gave rise to an appeal to the Immigration Appeal Tribunal (IAT) as it then was. The grounds of appeal settled by Mr Jorro, counsel who has appeared for the appellant throughout, included the following:

“Apparently, according to the adjudicator, the rape of the applicant by police officers and the rape and subsequent murder of the applicant’s sister by police officers, amount to no more than ‘harassment’ of insufficient severity to amount to persecution … It is submitted that the adjudicator is in manifest error of law.”

Alternatively it was contended:

“[in paragraph 15] the adjudicator is in manifest error of law, firstly by effectively inverting the ‘standard of proof’ (clearly what matters is whether it may have been for a Convention reason rather whether it may not have been) … and secondly by failing to realise that the rape of the applicant by police officers could well be both for reason of their hostility towards her as a person of mixed ethnicity whom they perceived as non-Ivorian and also for other reasons.”

Permission to appeal to the then-IAT was granted on both these points on 24 October 2004. Because of the changes brought about by the 2004 Act, which are now well known, the appellant’s appeal from the adjudicator fell to be considered as a reconsideration by the AIT under the provisions of that Act and the procedural rules which followed it. Rule 31 of the AIT rules first required the tribunal to consider whether the adjudicator had made a material error of law, meaning an error of law which affected her decision. This the tribunal did, sitting as a panel of three on 24 January 2006 after hearing submissions from Mr Jorro and a representative of the Secretary of State. Their decision was that the adjudicator had made a material error of law. Their reasons were as follows:

“The appellant’s credibility was accepted. She was raped in 1999 by police following a protest … and again in 2000 because she had gone to a demonstration … We considered that the adjudicator was in error in describing this treatment as harassment not tantamount to persecution. Consideration should have been given to the question whether the appellant would be bound on return to continue her previous behaviour and what the consequences would have been. In view of the refusal to grant her a passport and the participation of the police in her ill-treatment the question of sufficiency of protection for people in her position also arises, which would also be relevant to the possibility of internal relocation.”

The tribunal gave directions to the parties which included the following:

“The reconsideration is limited to the following issues:

Risk on return and relocation, based upon original adjudicator’s credibility findings.”

Mr Jorro’s understanding of the position following this hearing was that the tribunal had determined that the appellant had suffered persecution for a Convention reason and that the second stage of the reconsideration would consider risk on return on this basis, having regard to the objective evidence about conditions in the Ivory Coast now, sufficiency of protection and the possibility of internal relocation. Mr Jorro’s skeleton argument for the second stage hearing before the tribunal certainly supports this understanding. That hearing took place on 2 May 2006. Mr Jorro says that nothing was said by the Secretary of State’s representative or the tribunal to indicate that his understanding of what was in issue was incorrect. In the lengthy reasons which the tribunal gave for their decision they recite without comment the first stage decision and at paragraph 48 say:

“During the hearing before us it was accepted that we would have to assess the appellant’s account, as previously accepted, against the known objective background material on the Ivory Coast as at present, in order to determine whether the appellant had indeed a well founded fear of persecution if she were presently returned to the Ivory Coast. As a result of what had occurred in the past we would have to asses whether the appellant was at risk in future based on her membership of a minority ethnic group …”

This suggests that Mr Jorro’s understanding of the position was correct.

And yet, after a comprehensive analysis of the objective evidence, at the end of their decision under the heading “Findings of Fact Reasons” we find the following as part of the tribunal’s assessment of the risk to the appellant on return in paragraph 87. Of the rape in the forest the tribunal say:

“This was clearly in our view, the outrageous and unlawful behaviour of an uncontrolled unit of the police force. It was plainly not something which was directed at the appellant because of her Peuhl ethnicity or anything to do with her perceived French descent. The appellant in no way sought the protection of the authorities by reporting the incident either to NGOs or to the authorities themselves despite the fact that rape is a crime under Côte d’Ivoirelaw.”

Of the second rapes they say:

“Again, in our view, this did not show that the appellant was being targeted specifically or that she was being targeted because of her Peuhl ethnic background or her French descent. They were plainly isolated acts of a criminal nature. Again, we noted that the appellant did not report the matter to the authorities or seek the protection of anybody in the Côte d'Ivoire.”

Of the earlier incident when she was held in the police station, they say:

“She was taken to the police station where she was ill treated and questioned about her origins and then released. Again there was no evidence that this was specifically directed at her because of her ethnic origins or French descent.”

And finally they said:

“Furthermore, apart from isolated acts of violence against her, which are, we accept, totally unacceptable and are nothing short of outrageous criminal behaviour, there is absolutely no evidence that she is being targeted specifically because of her ethnic background, nor is there any evidence in the objective material before us to suggest that the Peuhl people are specifically targeted by the authorities or by anyone else in the Côte d'Ivoire, which would put the appellant at risk. We find that the actions that she has complained of are isolated acts of a criminal nature falling short of persecution.”

This led the tribunal to the conclusion in paragraph 88 of their reasons that:

“… the appellant is not at risk because of her ethnic background either as a Peuhl or because of her perceived French descent”.

So it was the tribunal’s assessment of the appellant’s past treatment which led them to conclude that she was not at risk on return. They did not specifically address the questions of sufficiency of protection, although inferentially by their comments about the appellant’s failure to complain to the police or other authorities they appear to be suggesting that this was not a problem. I find this suggestion impossible to accept, based entirely as it seems to have been on the appellant’s past experience, which indicates to my mind at the very least a dire insufficiency of protection. The tribunal do not address internal relocation at all, but this is not surprising as the objective evidence made this, it seems to me, a non-starter.

So looking at the tribunal’s decision as a whole, at first sight it would appear that it made exactly the same error as the adjudicator. It had not characterised what had happened to the appellant as persecution and then went on to find that it was not in any event persecution for a Convention reason. Mr Jorro submitted that these issues had already been decided at the first stage of the reconsideration, or alternatively, if they had not, the tribunal’s decision is unfair because the hearing before them proceeded on the understanding that they had been.

In his skilful submissions, however, Mr Patel, on behalf of the Secretary of State, contended that the only issue which had been resolved at the first stage was whether the rapes could be characterised as harassment. It had not been decided that they amounted to persecution, which for present purposes involves not only the infliction of serious harm but also a failure of any kind of state protection. Both the latter issues: sufficiency of protection, if there was persecution, and whether it was for a Convention reason still had to be resolved by the tribunal at the second stage. So Mr Patel submitted it was clear what the issues were and there was nothing unfair in the tribunal proceeding to deal with them as they did.

I do not accept these submissions. Looked at in context it seems to me that at the first stage the tribunal did decide that the appellant had been persecuted for a Convention reason. They clearly decided that she had been persecuted, a decision which was, it seems to me, inevitable. They did not say in terms that the persecution was for a Convention reason, but, as Mr Jorro says, sometimes this is summarised simply as persecution. If I am right in thinking that the adjudicator would have found that the harassment, as she characterised it, was for a Convention reason, then one can understand why the first stage tribunal did not spell the matter out more clearly. But again on the basis of the appellant’s accepted evidence, the conclusion that she had been persecuted for a Convention reason was almost inevitable.

So I conclude that at the second stage the tribunal misunderstood what it was they had to decide and therefore made findings upon which their decision was based which were not open to them. If I am wrong about this, the hearing before the tribunal was unfair to the appellant because her representatives proceeded on a misunderstanding of which they were never disabused.

For either of these reasons I would allow this appeal and direct there should be a further reconsideration of the appellant’s case, on the basis that in the years before she left the Ivory Coast the appellant had suffered persecution for a Convention reason, namely her mixed race ethnicity. The tribunal will then have to assess the risk to the appellant on return now in the light of that history and the objective evidence.

I am encouraged in the belief that this is the right result in this case by the fact that not only did a Senior Immigration Judge give permission to appeal to this court but exceptionally the Deputy President of the tribunal, Mr Mark Ockleton, noted that:

“This is a case in which, had I retained the power to do so, I should have consulted the parties with a view to setting aside the impugned decision and ordering a rehearing.”

That, for the reasons I have given, is what should happen.

LADY JUSTICE ARDEN: I agree. In my judgment there are grounds on which the adjudicator’s decision can be read as reaching the conclusion that if there had been persecution rather than simply harassment, it was for a Convention reason. In paragraph 13 of the adjudicator’s decision the adjudicator states that the appellant:

“… who became visibly upset during the proceedings, which were not lengthy, predicated her appeal on a fear of persecution in the Ivory Coast because of her mixed ethnicity”.

The adjudicator then sets out a series of incidents and describes her ethnic background. She points for instance to the refusal to grant her a passport because it was said that her name was not typically Ivorian. She refers to maltreatment at the hands of the police and to the fact that there is maltreatment of the minority group to which she belongs by the police as a general matter, and at paragraph 14 the adjudicator states:

“Her credibility was not overtly challenged in the refusal letter, nor at the hearing when she was not cross examined in any detail and I therefore accept that the events which she described in the past may well have occurred and I also believe that it is likely that she is of the Peuhl tribe and of mixed tribal background, as claimed.”

There are other instances to which one could point in the adjudicator’s decision also but the adjudicator would not have made a specific finding as to her ethnic background unless that was part and parcel of the adjudicator’s decision recorded at the start of paragraph 14 on the issue of persecution and was also relevant to the acceptance of her version of the events.

This interpretation of the decision of the adjudicator is supported by the fact that the AIT at its first stage hearing gave very limited directions as to the issues to be reconsidered. They are summarised in the written directions issued on 29 January as being limited to risk on return and relocation based on the original adjudicator’s credibility findings. Nothing is said there about whether the persecution was for a Convention reason. Accordingly, in my judgment it was not open at the second stage hearing for the AIT to make findings that the appellant was not persecuted for a Convention reason.

For these reasons and for those already given by my Lord, Lord Justice Tuckey, this matter must be remitted to be dealt with on the basis that the directions which I have read apply and that those are the only questions to be considered at the next stage.

LORD JUSTICE LAWRENCE COLLINS: I also agree, and have nothing to add.