AK (Guinea) v Secretary of State for the Home Department

This is a renewed application for permission to appeal against the decision of an immigration judge dated 21 September 2007 who, on a second stage reconsideration, dismissed the appellant’s appeal on asylum and human rights grounds.

When I read the papers, my initial view concurred with that of Longmore LJ who refused leave on paper, but I have been persuaded by Mr Haywood in his oral submissions that I ought to give leave to appeal and I will shortly explain the background of my reasons for coming to that view.

The appellant is a national of Guinea, born on 15 October 1986. He arrived in the UK as an unaccompanied minor on 13 October 2001. He was then aged 14. His claim for asylum was refused under HC395, paragraph 336, but he was granted leave to remain until 14 October 2004. Because of his age it was not thought appropriate by the Secretary of State to interview him in a way that an adult would have been interviewed.

On 17 September 2004 the appellant applied through the Refugee Legal Centre for a discretionary variation of his leave to remain. In summary, his claim was that he had a well-founded fear of persecution for reasons of imputed political opinion and that his removal to Guinea would constitute a breach of his human rights, particularly under Article 3 of the European Convention.

The factual basis of his claim was, in summary, as follows. 1) At the age of 13 he was forcibly abducted and drugged by rebels who crossed the border in Guinea, and as a child soldier he was compelled to engage in armed attacks and atrocities in the area in which he originated, Guékédou. The appellant feared identification as an erstwhile rebel, albeit an enforced rebel, particularly in his home area; 2) the appellant had attempted to trace his family in Guinea through the Refugee Council and the Red Cross but had not been able to establish contact with them; 3) he had integrated well into life in the UK. He has been educated here, has worked here and maintained an extensive circle of friends, including a continuing rapport with his former foster carer.

On 21 June 2005 the respondent refused the appellant’s claim for a variation of his leave to remain. The appellant appealed to the AIT against that decision. The appeal was refused by the immigration judge on 27 August 2005. The appellant applied for reconsideration of that decision. His application was rejected by a Senior Immigration Judge, but subsequently, on application to the Administrative Court, Walker J ordered that the original decision should be reconsidered. The first stage reconsideration took place before an immigration judge on 25 April 2007. The outcome of that hearing was a finding that the original tribunal had made a material error of law and second stage reconsideration was ordered. I should add that the first immigration judge had accepted the truthfulness of the appellant but had concluded that he would not be at risk as a former rebel because he would not be recognised in his village or, for that matter, in the country’s capital, Conakry, where he could live.

By the time the matter came on for second stage reconsideration, the appellant’s personal circumstances had changed in that he was now living with a British woman of Irish descent -- they had been on friendly terms for 18 months and had been living together for six months. Second-stage reconsideration took place on 13 June 2007. The judge dismissed the claim on asylum grounds and on human rights grounds, and it is against that decision that he now wishes to appeal.

The immigration judge had before him a report on conditions in Guinea and the risks which would face the appellant on return from an expert, Mr Sow. It is easy to become sceptical about reports of this kind which are sometimes used in these cases, but that would be a wrong approach in the present case because this report is noticeably balanced and was largely accepted by the immigration judge who quoted a number of extracts from it. When I say “largely accepted” I should make it clear that there is no part of the report that the judge expressly or positively rejected.

The judge found that the appellant would be at risk if he were to return to his own village, but he held that the appellant could reasonably be expected to relocate to Conakry, where he could live in safety. There is no challenge to his finding that the appellant would be safe in Conakry, for indeed that was the opinion expressed by Mr Sow. The criticism made of the immigration judge is that, in his finding that the appellant could reasonably relocate in Conakry, he has not, however, considered whether the appellant had a realistic prospect of being able to subsist in Conakry, and that if he could not realistically be expected to be able to sustain himself there, this was a material factor, to say the least, in considering whether it was reasonable to expect him to relocate there. Longmore LJ did not have the benefit of the expert’s report which has been put before me. In that report Mr Sow said as follows:

“Chances of finding a job:

The economic and social situation of the country is not liable to facilitate the search for a job. Guinea is among the African countries where the unemployment rate, above 50%, is the highest. Unfortunately for Mr K, even with the qualifications he may have, he has little change [clearly a misprint for ‘chance’] of finding a job in the current conditions. This pessimistic conclusion can however be qualified by taking into account the fact that if he has one or more members of his family placed in the higher echelons of the administration, this could help in his search for a job.”

The evidence was that the appellant had lost all contact with his family and had made various efforts to renew contact with them, but these efforts had been unsuccessful. Since the appellant was accepted as a truthful person and the judge has not suggested that he did not accept this part of his evidence, it should be taken for present purposes as true. So there does not seem any realistic prospect of the family being able to help the appellant to survive, unless he were to return to his village, which he could not safely do on the judge’s findings. Mr Haywood has reminded me of the observations of Lord Bingham in Januzi v SSHD [2006] 2 AC 426 at pages 448 onwards, about the potential relevance of a person’s inability economically to survive when considering the issue of reasonableness of relocation. Of course, the mere fact that economic circumstances may be poor in a particular country does not give of itself any right to a citizen of that country to live here if his prospects on his return would be no better or worse than those of anybody else, but there are arguably distinct features in this case in that this appellant is in a worse position than others in the community generally because he is deprived of the assistance of his family in trying to help him support himself and get work, because they are in an area to which he cannot return by reason of the danger of persecution. The criticism made of the immigration judge is that he has not addressed this issue and reached conclusions on it. It does seem to me that this point is fairly and properly arguable and I have been persuaded that, on that basis, he should have leave to appeal.

There was a further criticism of the judge’s treatment of the Article 8 claim. The judge said that his relationship with his present partner had lasted for just over six months. It is pointed out that they had been in some form of relationship for 18 months. I would not have given leave to appeal on that ground because, whether the relationship was six months or 18 months, it was of relatively short duration and was formed after the dismissal of his appeal by the first immigration judge and when the appellant plainly knew that his situation in the UK was precarious.

I see no realistic prospect of the appellant being able to succeed in an appeal on this ground if he fails on the Article 3 ground. On the other hand, if he were to succeed on the Article 3 ground, then, on any balanced consideration of the matter, all relevant circumstances would no doubt be taken into account in any final decision. For those reasons this application succeeds.