MK & Ors (Siera Leone) v Secretary of state for the Home Department

These are three linked appeals against the determination signed on 8 June 2009 of the Asylum and Immigration Tribunal (Senior Immigration Judge Gleeson and Immigration Judge Grant Hutchinson) ("the panel"), dismissing the appellant's appeals against the Secretary of State's decisions to refuse their claims under the Refugee Convention and the European Convention on Human Rights.

The three appellants are citizens of Sierra Leone. They are not related to each other. They claimed asylum on 5 January 2006. The factual basis of their claims was most unusual and immensely detailed. For present purposes it is unnecessary to rehearse that detail. It is sufficient to note that at the heart of all three claims was the contention that if the appellant was returned to Sierra Leone he would face a real risk of mistreatment at the hands of the Kebbay family, who were influential in Sierra Leone largely because they were related to the President, Mr Kabbah.

In the Secretary of State's reasons for refusal letter dated 1 December 2006 in respect of the appellant MS, paragraph 21 said :

The appellants appealed, and their appeals were heard before Immigration Judge Thorndike on 30 and 31 May 2007. He heard lengthy oral evidence from all three appellants. Although he recognised that their cases were very unusual, he believed the appellants' accounts and allowed their appeals in three determinations dated 1 June 2007. In those determinations he said that he was satisfied on the balance of probabilities that there was a family relationship between the Kebbay family and the President.

The Secretary of State applied for an order for reconsideration of all three determinations. In each case the Secretary of State's application was to substantially the same effect. When ordering reconsideration, Senior Immigration Judge Waumsley summarised the Secretary of State's grounds as follows:

Pausing there, grounds 2 and 3 were dependent on ground 1. If adequate reasons had been given for Immigration Judge Thorndike's conclusion that the Kebbay family were related to the President, then there were adequate reasons for his conclusion that there would be a risk on return outside Freetown because Sierra Leone is a small country and the Kebbay family had "extensive and high-level connections" there.

As Mr Banner submitted on behalf of the respondent in his skeleton argument:

Having summarised the Secretary of State's grounds, Senior Immigration Judge Waumsley said that he was persuaded, albeit not without some hesitation, that the grounds raised arguable points of law which merited further consideration. He continued:

When the matter came before Senior Immigration Judge Goldstein at a first-stage reconsideration, he concluded that Immigration Judge Thorndike had materially erred in law for the reasons as summarised by Senior Immigration Judge Waumsley, because each of the determinations "suffered from a lack of reasoning such as to be regarded as legally inadequate". Senior Immigration Judge Goldstein's decision continued:

Senior Immigration Judge Goldstein said that the three appeals should continue to be linked, but at the second-stage reconsideration all of the issues would be at large, with none of the Immigration Judges’ findings in each of the three determinations being preserved.

The second-stage reconsideration was heard by the panel on 21 and 22 January 2009. Senior Immigration Judge Storey had adjourned the hearing on 10 September to permit further evidence to be given as to the risk on return. The parties were to use their best endeavours to adduce further evidence as to a number of matters. These included:

It is not clear whether any further evidence was provided on issue (i) and if so what that evidence was. In paragraph 11 of its determination the panel said :

As Ms Jegarajah pointed out on behalf of the appellants, that paragraph is mistaken in at least two respects, first of all in the refusal letter it was not accepted by the Secretary of State that the family had some connection with the President of Sierra Leone and secondly it was accepted that Mr Kebbay senior was the Director General of the Sierra Leone Roads Authority.

Be that as it may, the panel's conclusion as to whether or not there was a relationship is clearly expressed in paragraph 157 of its determination:

Despite this acceptance of the central issue which had caused Immigration Judge Thorndike's determinations to be remitted, the panel concluded that the appellants' accounts were not credible and dismissed their appeals.

It is common ground that all three appeals raise the same two issues. Firstly, was Immigration Judge Thorndike's reasoning in his determinations dated 1 June 2007 defective? Secondly, if so was that defective reasoning such as to justify setting aside all of his findings, including his conclusions as to the appellant's credibility, and ordering reconsideration with all matters at large?

I will deal with these two issues in turn.

The defect in the Immigration Judge's reasoning relied on by the Secretary of State is the lack of "explanation as to what evidence led [the Immigration Judge] to form the view that there was a family relationship [between the Kebbay family and the President]."

It was submitted on behalf of the Secretary of State in Mr Banner's skeleton argument that the Immigration Judge simply found on the balance of probabilities that there was such a relationship. He failed to address the complete absence of any independent evidence to that effect. He gave no reason for accepting the appellant's assertions in this regard. In his oral submissions Mr Banner submitted that Immigration Judge Thorndike had failed to explain why he accepted the appellant's evidence.

In my judgment those criticisms of Immigration Judge Thorndike's determinations are not well-founded. When the determinations are read as a whole, the explanation is plain. All of the subsequent references that I shall make will be to the determination in the appeal of MS unless indicated otherwise.

Immigration Judge Thorndike's determination is lengthy, thorough and in my judgment entirely coherent. Firstly, he referred to the Home Office refusal letter which had recorded the appellant's claim that Ishmael Kebbay senior was the President's nephew and which had said in response:

The Immigration Judge then summarised the oral evidence of the appellants. All three appellants said in their oral evidence that Ishmael Kebbay Senior was "an important person and the President of  Sierra Leone's cousin":

Having set out the evidence, the Immigration Judge recorded the rival submissions. It was submitted on behalf of the Secretary of State that

On behalf of the appellant it was submitted by Miss Hamilton, who then appeared on behalf of the appellants, that their accounts were not a fabrication and that they had claimed asylum because they feared persecution by the Kebbay family because they knew their evil secrets and "appreciated their high-level connections in Sierra Leone". (See paragraphs 91 and 92) The expression “high-level connections in Sierra Leone”, when read in context, was clearly a reference to the appellants' evidence that there was a relationship between the Kebbay family and the President.

It was therefore against this background, with all three appellants having given oral evidence that there was a relationship, the Secretary of State having submitted that there was no "independent evidence of such a relationship" and the appellants' advocate inviting the Immigration Judge to accept that their accounts including their evidence as to the existence of the relationship were true, that Immigration Judge Thorndike resolved this particular issue in paragraph 102 of his determination by saying:

In my judgment that reasoning is entirely clear. The Immigration Judge accepted the appellants' oral evidence. He was entitled to do so. Moreover the Immigration Judge's acceptance of this particular aspect of the appellant's oral evidence should not be considered in isolation. He also accepted the truth of the remainder of the appellants' account, with the exception of the President's involvement in juju: see paragraph 102. This included their evidence as to the conduct of the Kebbay family and the claim that they did have influence in Sierra Leone. Hence the Immigration Judge's conclusions as to risk on return in paragraph 110 and paragraph 111 of the determination.

The Immigration Judge was required to give adequate and intelligible reasons for his decision to allow the appellants' appeals. He did so. He believed the appellants' evidence that there was a relationship. He was not required to go further and give reasons to explain why he believed the appellants' evidence on this particular point. After all this was not a case where differing views had been expressed by expert witnesses or witnesses as to fact where a more detailed explanation as to why the evidence of one was preferred might have been necessary. There was no evidence to the contrary. The Secretary of State was merely arguing that the appellants' evidence on this point should not be accepted because there was no independent evidence to support the claimed relationship.

When we asked Mr Banner whether the Secretary of State would have contended that the Immigration Judge's reasoning was inadequate if he had said that he was not satisfied, to the relatively lower standard of proof appropriate in appeals of this kind, that there was a relationship, he replied that in order to be consistent the Secretary of State would have had to concede that the reasoning was inadequate. In my judgment such a concession would not have been well-founded. The Immigration Judge's conclusion may well have been unwelcome to the Secretary of State, but his reasons for reaching that conclusion are perfectly intelligible just as they would have been had he said that he was not satisfied that there was a relationship.

It follows that the second issue is academic but I will deal with it shortly in any event.

It must be remembered that the Secretary of State's applications for reconsideration of Immigration Judge Thorndike's determinations were based on straightforward reasons challenges. There was no challenge to the Immigration Judge's conclusions as to credibility and no suggestion that there was no evidence on which he could reasonably have concluded that there was a relationship between the Kebbay family and the President. It must also be noted that Senior Immigration Judge Waumsley's order for reconsideration was expressly "limited to the issues raised in the respondent's grounds": see above.

As I have mentioned, the Secretary of State accepts that reconsideration was sought and ordered principally on the basis of the defective reasoning of Immigration Judge Thorndike in respect of the relationship between the Kebbay family and the President. Applying the approach in DK (Serbia) v SSHD  [2006] EWCA Civ 1747, there would have had to be some exceptional reason for widening the scope of the reconsideration, so as to deprive the appellants of Immigration Judge Thorndike's favourable findings as to their credibility.

While I accept Mr Banner's submission that the question whether there was a relationship was of fundamental importance to the determination of their appeals, given the very specific defect in the Immigration Judge's reasoning (on this hypothesis) there was no reason why the appeals could not have been remitted to consider as a first step this defect in the reasoning. See for example the order of Senior Immigration Judge Storey that the parties should use their best endeavours to adduce further evidence as to the nature of the relationship between Mr Kebbay and the President referred to above (para 11).

Once that issue had been resolved, the tribunal on reconsideration would then have been able to decide, in the light of its answer to this first issue, whether the remainder of the hearing should be widened so as to consider all matters at large. If on reconsideration the conclusion had been reached that there was a relationship, as alleged by the appellants, that would simply have been the end of the matter. There would have been no possible basis for reversing Immigration Judge Thorndike's conclusions as to their credibility. If on the other hand it had been concluded that there was no relationship, then the reconsideration hearing would most probably have been ordered to be continued with all matters at large, because such a conclusion would have struck at the heart of the appellants' accounts.

I would conclude this judgment by observing that it is a bizarre feature of this case that, with the benefit of hindsight, we now know that, even if Immigration Judge Thorndike did fail to give adequate reasons for his conclusion that there was a relationship between the Kebbay family and the President, that failure was not a material error of law because on reconsideration the panel accepted that the Kebbay family were related to former President Kabbah. Thus the central issue on which reconsideration had been ordered was resolved by the panel in favour of the appellants, but the panel does not appear to have considered the impact of this conclusion in its assessment of the credibility of the appellants' accounts. That said, I would allow this appeal on the basis that there was no defect in Immigration Judge Thorndike's reasoning.

In support of his submissions that the reasoning of Immigration Judge Thorndike was inadequate on the central point of whether there was a family relationship or link between the Kebbay family and the then President, Mr Banner pointed out that this was not a fact that was necessarily or indeed likely to be within the knowledge of the appellants, and that accordingly it was something that could not simply be accepted on the say so of the appellants and that it needed to be supported by independent evidence of one kind or another. Immigration Judge Thorndike was well aware of this. He recited the fact that the argument against the appeal was, relevantly, that there was no independent evidence of any such link. I understand the general nature of the point that Mr Banner makes, but it was for Immigration Judge Thorndike to resolve the issue on the basis of the evidence that he heard.

I note, for example, that in paragraph 39 of his determination in relation to MS he referred to the fact that, while the three appellants were on a visit to London for the purposes of rehearsing and recording some music in a studio in London, they met the President, who was there on a ministerial delegation including Mr Kebbay senior, to attend a conference in London. That by itself would be neutral. However, during that period the President twice visited the house in Beckenham belonging to the Kebbay family at which the appellants were present. Moreover it is recorded that on each of those occasions Mr Kebbay junior called the President "uncle".

That is the sort of evidence which was within the knowledge of the appellants and which would be amply sufficient to indicate that there was a family or other link between the Kebbay family and President. In the light of that it seems to me that Mr Banner's valiant submission does not suffice to support the conclusion of the panel. For that and for the reasons given by Sullivan LJ I agree that the appeal should be allowed.