CD (Jamaica) v Secretary of State for the Home Department

This is an appeal brought by the Secretary of State in which he seeks to overturn a ruling of the Asylum and Immigration Tribunal. In that ruling, which was a second stage reconsideration, the tribunal concluded, in a determination promulgated on 24 February 2009, that the respondent, CD, would face a serious and appreciable risk of treatment contrary to Article 2 and 3 of the European Convention on Human Rights were he to be returned to Jamaica.

In reaching that conclusion, in circumstances to which I shall turn, the tribunal did not consider either whether he would be at risk on return or whether he would be at risk on internal relocation because they concluded that the Secretary of State should be bound by an earlier concession that it had made. This appeal therefore turns on the question whether the Asylum and Immigration Tribunal was correct in refusing the Secretary of State to withdraw a concession that it had earlier made. In order to understand how that issue arises, it is necessary to look to some of the facts which form the background to this issue.

The respondent CD had arrived in this country from Jamaica in February 1999 and had been given permission to enter as a visitor until August. On 28 July 1999 he applied for leave to remain as a husband of a British citizen. He had by then two children and stayed on with another lady, with whom he has another child.

On 28 July 2001 he left the United Kingdom. This was one day after he had shot a man in this country in circumstances described by the first tribunal considering an appeal in which he claimed refugee status and that he would be at risk on return. He had fired a shotgun on 27 July 2001 at another man at close range, blinding him in one eye and leaving him with greatly impaired vision on the other. He left the United Kingdom on 28 July 2001, the day after, and returned on 29 June 2002, seeking admission as a visitor with a different identity. His application was refused and a month later he applied for asylum. He was not removed.

He was convicted of the attempted murder on 9 April 2003 at Warwick Crown Court, of having a fire arm with intent to commit an indictable offence, two counts of unlawful wounding and doing an act intending and intended to pervert the course of public justice. He was sentenced in total to twelve years’ imprisonment, the primary sentence being passed for the attempted murder. A recommendation for deportation was made. He remains in prison and is not due for release until December of this year 2010.

On 1 December 2007 the Secretary of State decided to make a deportation order on the basis that, in view of his conviction at Warwick Crown Court, he deemed it conducive to the public good to make the deportation order pursuant to the provisions of Section 3 5(a). Accordingly, there was a presumption that it would be in the public interest that his deportation was required (see paragraph 364 of the Immigration Rules). The only way he could escape deportation, therefore, in the circumstances, was by establishing that he would be at risk both either to his safety or his life were he to be deported to Jamaica.

This the appellant sought to do. He sought to do that by contending that he was known in Jamaica as Evil Black, was a leader of a shotgun crew in a notorious area of Kingston, and therefore his safety would be at risk from members of rival gangs.

The first tribunal which considered these issues concluded, in a decision dated 10 April 2008, that he would not be at risk and dismissed his appeal. That decision was itself the subject matter of appeal; it was held that there was an error of law in the tribunal’s approach to the expert report and a further second reconsideration was therefore ordered. The second reconsideration, and the decision to which I have already referred, promulgated on 6 March 2009, was heard at Stoke on 24 February 2009 by Senior Immigration Judge Freeman, sitting with another Immigration Judge and a lay member.

The question arose as to what issues it was right for the tribunal to consider at that hearing on 24 February 2009. The issue arose in this way. There had apparently been an adjourned hearing at Stoke before a similar panel with a lay member on 9 December 2008. The reason for that adjournment is that the respondent, CD, sought a better opportunity to establish that he was indeed the man known as Evil Black: that was a vital fact for him to establish so as to form the basis of the contention that he would be at risk on return to Jamaica. At that hearing the Senior Immigration Judge made a note in which the concession of the presenting officer was clearly recorded. Counsel said that the issues were whether the appellant, CD, was Evil Black, and secondly whether, as a result, he would be at risk. On setting out accurately those two issues the presenting officer, on behalf of the Secretary of State, clearly conceded that the second issue was not a live issue in this particular case, and conceded that if CD could establish that he was Evil Black he would be at risk were he to be deported to Jamaica.

Senior Immigration Judge Freeman records that, in his view, that was a surprising concession, but that it was unqualified and apparently unclear.

No attempt to withdraw that concession was made until right at the last minute, in an oblique fashion to which I shall turn shortly, before the hearing on 24 February 2009. There was a directions hearing on 12 January 2009 when the Secretary of State was represented by a different presenting officer, but no withdrawal from the previous concession was made. The directions hearing proceeded on the understanding set out on 9 December 2008, namely that the only issue was whether CD could prove he was Evil Black.

There then followed a series of what Mr Ahluwalia accurately describes as an unusual but determined effort by the tribunal, and by both sides, to identify the best way of resolving the issue of identification. It was difficult not only to prepare a hearing at which the CD had to be brought from prison under secure circumstances, but also to enable proper evidence to be obtained from the expert found by those acting on behalf of CD, a man called HG, with intimate knowledge of gangs in Jamaica who had to show photographs in, no doubt, dangerous and difficult circumstances to others in order to make good the assertion that CD was Evil Black. There were frequent exchanges of emails in which Senior Immigration Judge Freeman made clear his understanding that the only issue was one of identification. It is disappointing therefore to record that the first hint of an attempt to withdraw that concession came as late as a reference between the presenting officer and another official on 11 February, culminating in what I describe as an oblique reference in information given to those instructed by CD which was received on 19 February, which said:

“The hearing is limited to whether or not the Appellant is accepted as being Evil Black, the gang leader in Jamaica, and if he is would he be at risk on return”

That was hardly a proper way in which to indicate to CD and his advisors that the Secretary of State was seeking to withdraw from the concession earlier made.

Earlier notice should have been given, which would have been given an opportunity to CD both to prepare his case in opposition to withdrawal and, if that failed, to have evidence necessary to the issue, which for the first time the Secretary of State sought to revive, namely whether, even if CD was Evil Black, he would be at risk on return, particularly were he internally to relocate. Indeed it is even more disappointing to record that the reference came only after CD’s advisors had served notice of the content of the expert’s report which did on its face appear to make good that CD was indeed Evil Black.

The parties therefore attended with the original presenting officer on 24 February, and at that time the Secretary of State sought to withdraw from the concession that had earlier been made. The tribunal therefore had to consider whether it was proper to allow the Secretary of State to withdraw and recorded that there was no serious issue about the law as to whether it could do so. The tribunal recorded:

“No such concession is final: it may be withdrawn by the Home Office themselves, or the Tribunal may indicate for ourselves that we do not think we should be bound by it; but subject in either case to giving the appellant’s side a proper opportunity of meeting the altered case.”

In essence, I would not quarrel with that as a short summary of the correct approach in law. Indeed there was no quarrel between the parties as to the correct approach in the appeal before us. It is necessary, however, to consider those authorities which identify the principle that I suggest this court ought to apply. They are summarised by Goldring LJ in NR (Jamaica) v SSHD [2009] EWCA Civ 856 at paragraph 11 and 13. A tribunal can allow a concession to be withdrawn if there is good reason in all the circumstances to do so and if it can be done with the absence of prejudice. No principle will govern every case, but the most important feature of any decision is that the tribunal must put itself in a position in which the real issues of dispute on the merits can be decided, so long as that can be done without prejudice to one side or the other (see paragraph 12 of the judgment of Goldring LJ).

We were shown different examples of concessions being made as to the facts in the case of NR (Jamaica); in the case on which Goldring LJ relied, SSHD v Davoodipanah (Akram) [2004] EWCA Civ 106, Kennedy LJ at paragraph 22; and in an earlier decision of Collins J sitting as the President if the Immigration Appeal Tribunal in Carcabuk & BLA v SSHD 00TH01426 at paragraph 11 and 12: a decision of 14 April 2000.

The concession in this case appeared at first to be that it was accepted that the only issue was one of identification, but, as Mr Ahluwalia rightly pointed out, for all one knew the concession was that risk was relevant, but in the instant case so notorious was CD as Evil Black that he would be at risk anywhere on the island.

The real question that the tribunal had to determine was whether all the essential issues in the case could fairly be resolved by allowing the concession to be withdrawn or whether the prejudice was such, and the damage to the public interest such, that the Secretary of State should not be allowed to withdraw the concession.

Mr Ahluwalia took us through the processes which the tribunal made patent in reaching the conclusion that the concession should not be withdrawn. The tribunal properly bore in mind the law which made good the proposition that in order to establish risk as a result of threats to life or safety from criminal gangs in Jamaica it was necessary not just to consider safety on return to the area where the original danger arose but also consider whether it was reasonable internally to relocate. Of course, if the danger persisted throughout the island there could be no question of the possibility of it being reasonable internally to relocate.

The decision that established that conclusion is, AB (Protection -- Criminal Gangs -- Internal Relocation) Jamaica CG [2007] UKAIT 00018. In that case the tribunal concluded that even though in every part of Jamaica there may be persons where connections with or who work for organised gangs:

“…The evidence does not show that such persons are generally familiar with or know who the sought enemies of these gangs are. In our view it is not reasonably likely they would be told to look out for specific individuals except in high profile cases”

At paragraphs 164 to 166 the tribunal make clear that each case must turn upon its own facts. Two questions will arise. Firstly, whether someone who is at threat from a criminal gang may be included within the witness protection programme; and, secondly, even if not, whether nonetheless they will be at risk, and the tribunal repeated:

“…we do not consider that, except in high profile cases, such persons would face a real risk of being protected by criminal gangs based within the KMA or other inner-city urban areas. But each case will turn on its own facts.”

In the instant case Mr Ahluwalia submits that, for all one knows, the concession made by the Secretary of State was in acknowledgement that CD’s case was so high profile it was accepted he would be at risk throughout Jamaica, but the absence of any consideration as a matter of evidence and fact would be clearly contrary to the approach which tribunals must follow as a result of the country guidance case to which I have referred. The tribunal pointed out:

“That the issue of internal flight could not be properly explored before us: Jamaica may be a small island compared to this one but its 2.8 million people make that [the question of internal flight] potentially very much a live issue”

Thus the background to their decision was a concession which contradicted the correct approach to cases such as this, as the tribunal itself acknowledged.

In reaching its conclusion the tribunal draw attention to the history of delay in determining this matter, and then at paragraph 9 appeared to conclude that were CD to be given a fair hearing:

“…either the case would have to be adjourned for some three months; or it would have to proceed on the basis of the concession as both of us sitting on 9 December, as well as Mr Ahluwalia, had understood it. While even an adjournment of that length would not directly prejudice the appellant, since he is represented at public expense, and most unlikely to be released in any event before December 2010, there is also the public interest to be considered, which requires the hearing of an appeal to proceed, unless it cannot be justly determined (see Procedure Rules r. 21) without an adjournment.”

The tribunal then acknowledged the very strong public interest in seeing that the persons convicted of attempted murder should not be allowed to go free in this country if they can be safely removed to their own (see paragraph 10), but then returned to the unfortunate procedural history of a first instance consideration on 28 March, reconsideration 2008, reconsideration on 29 April 2008, and then two further hearings, a first-stay reconsideration on 9 October and an adjourned second stay on 9 December. It pointed out the very late application to withdraw (see paragraph 12) and then commented that it would have been an easy decision to grant an adjournment, but if, and repeated at paragraph 13:

“…this hearing had been once adjourned already, and, if that happened again, would go off to well beyond the anniversary of the first one: each such occasion involved not only the public investment in our time, and that of the representatives on each side; but the unnecessary booking of a Crown Court … and his transport to and from prison with an escort.”

The tribunal therefore concluded on this basis as follows:

“…we had no doubt in all the circumstances that the public interest in the effective administration of justice required us to proceed with the hearing…” (paragraph 14)

Thus it appears that the tribunal reached its conclusion on the basis that, were they were to allow the Secretary of State to withdraw the concession, no further hearing could take place on 24 February 2009 and the matter would have to be put off for at least three months, despite the earlier delay and despite the expense that that would have entailed. They took into account the grave consequences were they to find CD was Evil Black, because he would, at the end of his sentence, be allowed, in the light of the concession, to remain in this country, but balanced that against the considerations which I have already identified and refused to allow the concession to be withdrawn.

Before reaching any conclusion two features of this type of issue must be borne in mind. Firstly, that this is an expert tribunal. Quite apart from the principle that any judicial body must be allowed to exercise its discretion as it wishes in relation to questions of adjournment, this specialist tribunal is peculiarly well placed to decide the questions of whether the effective administration of immigration and deportation will be seriously undermined should adjournments be granted. One needs no better authority for the importance of courts, such as this, exercising restraint not interfering than the speech of Baroness Hale in SSHD v AH (Sudan)  at paragraph 30 (see also the speech of Lord Bingham at paragraph 11). No court should lightly interfere with the consideration of the special tribunal as to questions of adjournment or reverse its view of the justice of allowing a concession to be withdrawn.

That leads me to the second important principle that I suggest should be applied, namely that this court cannot interfere merely because it might, or indeed would, have reached a different conclusion. It can only interfere if the conclusion was outwith the range of reasonable conclusion. In my judgment, however, the tribunal made two important and significant errors in its approach to consideration of this issue as to whether the presenting officer should be allowed to withdraw the concession. Firstly, as I have sought to demonstrate, in paragraph 9 and again in paragraph 13, it appears to have been under the impression that, were it to allow the Secretary of State to withdraw the concession, the hearing on 24 February 2009 would be wasted. It would not have been. There was nothing to prevent the tribunal hearing the evidence of identification and reaching a conclusion. Indeed there was every reason why it should, since the expert, HG, in difficult circumstances, was standing by and it might have been very difficult to receive his evidence.

In those circumstances it misdirected itself in suggesting that the only consequence of allowing the concession to be withdrawn was another wasted hearing. On the contrary, there was every reason to determine that issue at that time, since if it, like the first tribunal, had concluded that CD was not Evil Black, there would have been no need for any further hearing.

Secondly, in my judgment it erred as a matter of law, and not merely as a matter of weight, in failing to have regard to the consequences of refusing the withdrawal of the concession. The consequence would be that, contrary to AB, no consideration would be made as to risk on return or the reasonableness of internal relocation. On the contrary, a man convicted of a very serious crime, where he had been convicted of shooting a man with intent to kill, would be permitted to remain in this country contrary to the clear statutory presumption raised in Section 3 (5) of the Immigration Act 1971. Nowhere in the decision of the tribunal does it seem to me that those consequences are properly identified and weighed. Of course, as I have mentioned, the tribunal did refer to the consequences at paragraph 10 and again at paragraph 14, but what they did not, in my judgment, reflect in their decision was the failure to consider the consequence. The real issues in the case raise the question of protecting the public interest in this country which ex hypothesi would not be protected were this man to remain in this country. That might be inevitable were he to be at risk of a breach of his rights enshrined in Article 2 and Article 3, but in reaching that conclusion it was incumbent upon the tribunal to acknowledge that real public interest.

Once it is appreciated that that was the real issue in the case, it is difficult to see how the failure to consider that can be justified merely because a wasted hearing would ensue. As the tribunal accepted, CD himself would not be prejudiced since he would have an opportunity on an adjournment to adduce any evidence and argument he wished as to the issue of safety. All that would be prejudiced, so far as I can identify, is what the tribunal called the effective administration of justice. That itself would only suffer in a limited way because, as I have already said, there could have been an effective hearing as to an important issue in relation to identification.

This, therefore, in my judgment, is one of the very, rare cases where it can be seen that the decision, which essentially was one of case management as well as fairness and justice, was a decision outwith the range of reasonable conclusion. I would, for the reasons I have given, therefore reverse it. I would conclude that the tribunal was wrong not to allow the Secretary of State to withdraw the concession and I would order that the issues of risks on return and the reasonableness of internal relocation should be remitted to the tribunal for it to consider those issues as questions of fact.

I agree.

I also agree.