HS (Zimbabwe) v Secretary of State for the Home Department

The matter that is before the court this morning arises out of a series of applications for permission to appeal to this court from a Country Guidance decision of the Asylum and Immigration Tribunal in relation to the return of failed asylum seekers to Zimbabwe. That is a matter that understandably has been much contested in recent years and the latest episode with which we are concerned relates to a very detailed inquiry by the Asylum and Immigration Tribunal into the situation, or likely situation, both at the airport on return and subsequently in the country.

The Asylum and Immigration Tribunal heard a good deal of evidence about those matters, both from individuals and from persons with expert knowledge of that country, and in effect came to the conclusion that it would uphold the previous determination that such persons could, putting it very broadly, be safely returned.

Permission is sought to appeal against that determination in grounds of appeal that were settled on 18 January 2008, complaining of the fact-finding operation engaged in by the Asylum and Immigration Tribunal. As was understood to be the law at that time, the grounds of appeal are cast in what might, in very considerable shorthand, be called Wednesbury terms -- that is to say, complaining about failures to take particular evidence into account; failure to give weight to certain witnesses, and not approaching the evidence of certain witnesses in a fair and balanced manner.

The matter came on paper before a single Lord Justice of this court who concluded that the grounds were, as he put it, “factual points dressed up as law”. That is, unhappily, often the case when what is, at its basis, an argument about the merits, or indeed about the correctness of the factual findings, is expressed in terms of unreasonableness, misunderstanding and a failure of reasoning. The Lord Justice refused permission on all the grounds. The matter is now renewed in court before us.

Since the grounds were settled and since the Lord Justice gave his determination, there has been a further development which I must attempt briefly to explain. This goes back to a case heard by this court on appeal from the Special Immigration Appeals Commission, heard in July of last year, then called MT (Algeria) v SSHD [2008] 2 WLR 1835 at page 159. That case concerned the return, or proposed return, to Algeria of various persons seeking protection in this country. Amongst the many issues that were debated was the question of whether there would be a breach in that case of Article 3 of the Human Rights Convention by reason of one, at least, of those returning being threatened with torture should he return to Algeria. Now it will be clear that if that threat was made good -- that is to say, if there was a risk that that person would be tortured on return to Algeria -- then there would be a threatened breach of Article 3 and, under the accepted jurisprudence of the European Court of Human Rights and indeed of this jurisdiction in the case of Chahal, return would not be possible.

The dispute was in that respect about whether there was in fact a risk of torture, and the Special Immigration Appeals Commission, having gone into the facts, held that that was not going to be the case. Therefore the Article 3 complaint failed.

Before this court, which had, in that matter, as in the present, jurisdiction in respect only of issues of law, it appeared at first sight that SIAC’s conclusion could only be overturned if it had reached its conclusions on a Wednesbury irrational basis -- the same basis that was alleged in the grounds of appeal in this case. However, in the appeal in MT things took a different turn, and the appellants argued -- and there has been some discussion this morning about what in fact they argued in detail -- but I am fairly confident in saying that the essential way in which the argument of the appellants in MT departed from the previous jurisprudence was that they contended that, in a case involving human rights convention issues, an appellate court, even if within the domestic legal order its jurisdiction was limited to issues of law, should nonetheless review the conclusions reached on matters of fact by the lower court in order to determine whether those were correct: as opposed to being limited to simply considering whether those conclusions had been reached by methods that exhibited irrationality.

That understanding on the part of this court of what the appellants were arguing is set out in the latter part at paragraph 100 of the judgment of the Court of Appeal. Mr Tam QC, in his helpful submissions for the Secretary of State today, suggested, I think, that the Court of Appeal went rather further than had the appellants in rewriting their argument for them. What the Court of Appeal understood was not the nub of the appellant’s case there, nor was it the basis of their petition to the House of Lords in that case. I do not, with respect, think that that is so. It seems to me clear from paragraph 5 of the petition in MT, and in particular from the way that paragraph 5 (15) is drafted, that the appellants in MT before this court, and before the House of Lords, did and do indeed put their case in those terms.

Faced with that case, in his judgment Sir Anthony Clarke, Master of the Rolls at paragraph 101-107 set out a series of reasons why the argument was unsustainable, indeed unarguable, and it was rejected. The development now is that the House of Lords has granted permission to the appellant in MT (now known as MT, RB & U v SSHD [2007] EWCA Civ 808) to appeal against that conclusion. The House therefore differs from the view of this court, at least to the extent that it does think that the point is arguable. That means that, to put it at its lowest, doubt now must exist until the House of Lords has decided that matter as to the proper approach in an appellate court to complaints about the fact-finding process of the lower court in a convention case. In the present case Mr Nicol QC has said that if the House of Lords were to uphold the appeal in MT in any shape or form it would then be open to him or his junior to redraw the grounds of appeal so that they ceased to be limited to making complaints of irrationality, and directly say that the Asylum and Immigration Tribunal simply got the facts wrong in its assessment of them. That, I have to say, is at least a plausible possibility in the event of the House of Lords allowing the appeal in MT. That therefore raises the question of how this court should proceed on the applications for permission to appeal which are before it. As was said from the bench, in the course of argument the court, having read the papers, and before it had the benefit of proper reflection of the issue that I have just discussed, was minded to think that permission should be granted on some, although by no means all, of the grounds that before it; but that was of course on a basis which may later turn out not to have been the correct basis for an appellate court to follow.

Mr Nicol therefore submits that this application for permission should be stayed until the determination to the House of Lords in RB (Algeria). There is no doubt that that would be an inconvenient course for everybody. But the court has to decide what is the more convenient course to take: to wait in this case, at least until we know for certain what the law is, or to go ahead with what is bound to be a extensive and burdensome inquiry only to find that the legal basis upon which that inquiry has been placed turns out to be mistaken.

As was also stressed in the course of argument, the decision that this court has come to -- that this matter should be stayed in those terms -- is far from a decision that says that every case in which what I would call the MT point might potentially arise should now be stayed; the matter must depend upon the nature of the case. I for my part am influenced, as my Lord indicated in argument, by the further consideration that this is, after all, a case about a country in which the factual situation seems to be changing day by day and it may be in any event artificial to try to reach any firm conclusions at the moment about how to address the factual situation in advance on the basis of evidence, as in this case, which is already something like a year old.

For those reasons, therefore, I would be minded to grant the stay that Mr Nicol seeks. That would be a stay on the renewed application for permission until the determination by the House of Lords of the appeal in RB (Algeria) or, I would add, further order. It may be that there may be other developments (I know not what) that would justify the review of this, what is after all a temporary, decision.

So I for my part would grant a stay in those terms solely on the basis that the proper role of an appellate court, in relation to the assessment of facts as a Convention matter, must remain in some doubt at least until the House of Lords has pronounced on RB (Algeria). For those reasons I would grant a stay.

I agree. I would emphasise that our decision does not mean that the generality of asylum and immigration appeals to this court -- raising Article 3 issues of this kind -- should necessarily be stayed, as that will be a matter for a judgment in each individual case. In the present case, as my Lord has indicated, there is a particular consideration to bear in mind. We are concerned with a country guidance determination made by the AIT in respect of Zimbabwe. It was as a result of a hearing almost twelve months ago, in late July 2007, in which evidence was adduced about conditions in that country, largely in the two years or so before then. There is, to my mind, a degree of unreality in dealing with a country guidance case looking at such past conditions, when any informed person knows full well that during the first half of this year Zimbabwe has been experiencing what can perhaps euphemistically be called a marked deterioration in law and order and conditions generally in that country.

This is a fact of which I too am bound to say has influenced the exercise of my discretion as to a stay. It is one which may well distinguish cases about Zimbabwe from other cases coming before this court.

I too would grant the stay in the terms indicated by my Lord.