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

This is an appeal against the determination promulgated on 5 July 2010 of the Upper Tribunal (Immigration and Asylum Chamber) dismissing the appellant's appeal on asylum, humanitarian and human rights grounds against the respondent's decision of 6 December 2006 to give directions to the appellant's removal to the Ivory Coast.

Although in the event the Upper Tribunal's determination deals largely with the circumstances of this particular appellant, it is nevertheless reported as a country guidance case as MD (Ivory Coast) CG[2010] UKUT 00215 (IAC)

The facts are set out in considerable detail in the Upper Tribunal's determination and the briefest of summaries will suffice for present purposes. The appellant is a national of the Ivory Coast. She was born on 7 July 1987, she is a Muslim. Her father comes from a northern tribe, the Diaby tribe. She was born in a town, Odienne in the north of the country. The appellant's mother was from the Toure clan. The appellant was born in Daloa in the north. Because of family opposition to their mixed marriage the appellant's father and mother moved from Daloa to the capital Abidjan, some 13 hours drive from Odienne, when the appellant was a baby.

Female genital mutilation (FGM) was practised by the Diaby tribe but not by the Toure tribe and the appellant's mother strongly objected to the practice. While her mother lived the appellant was thus protected from FGM but the appellant's mother died on 9 April 2003 when the appellant was 15 years old. Some four months later she and her younger sister returned with their father to Daloa where the appellant was forcibly circumcised. She was subsequently married in a customary marriage ceremony to an elderly man from the village and went to live with him as his third wife in Odienne.

In 2004 she began a relationship with and became pregnant by another man known as B. When her pregnancy became apparent in June 2005 she fled to Abidjan fearing retribution from both her family and her husband. She had lost touch with B and she stayed with a former teacher in Abidjan. Using her mother's jewellery she left the Ivory Coast with the help of an agent on 7 September 2005 and arrived in the United Kingdom on the following day when she claimed asylum. Her son was born in Birmingham on 16 December 2005 so he is now five and a half years old and the appellant is nearly 24 years old.

The appellant's asylum claim was rejected by the respondent in a decision letter dated 1 December 2006. The respondent did not challenge the appellant's credibility. Her account of events in the Ivory Coast was accepted but it was said that there would be adequate protection from the authorities against her husband and/or father and alternatively that she could have remained safely in Abidjan.

The appellant's appeal against that decision was dismissed by Immigration Judge Harris in a determination dated 12 March 2007. He concluded that, although the appellant was credible, there would be a sufficiency of protection in Odienne. Alternatively the appellant could reasonably relocate to Abidjan. Senior Immigration Judge Nichols set aside the Immigration Judge's determination and the appeal came before a panel of the Asylum and Immigration Tribunal comprising Senior Immigration Judge Goldstein, Senior Immigration Judge Jordan and Mr N G Taylor CBE on the 16 October 2008 for a second stage reconsideration, the Immigration Judge's finding as to the appellant's credibility being preserved.

Although the hearing before the panel commenced on 16 October there were a number of adjournments and the hearing did not conclude until 18 August 2009. By the time the panel's determination was promulgated on 5 July 2010 the Asylum and Immigration Tribunal had ceased to exist and the determination was a determination of the Upper Tribunal. The hearing took place on 16 and 17 October 2008. There was then an adjournment to 24 November 2008, another adjournment to 7 and 8 May 2009, a further adjournment to 9 June and a final adjournment to 18 August 2009.

It is impossible to do full justice to the Upper Tribunal’s 72 page determination which extends to no less than 330 paragraphs. In summary the Upper Tribunal concluded that if the appellant returns to Odienne she would suffer "isolation and stigmatisation to render her life there intolerable such as to amount to serious harm" (see paragraph 317). However the tribunal concluded that the appellant could return to her home area which was Abidjan, see paragraph 318. She would not be at risk there on account of her forced marriage and adultery, see paragraph 308.

In paragraphs 310 and 311 the tribunal said :

In respect of the appellant's Article 8 appeal the tribunal concluded that since the appellant and her son would be returning to the Ivory Coast together there would be no interference with their family life. The tribunal dealt with the issue of interference with the private life of the appellant and her son in paragraphs 323 to 325:

There are three grounds of appeal against the tribunal's determination. First it is said that the tribunal made what is described as "a fundamental mistake" about some of the evidence that was placed before it. Secondly it is said that the Upper Tribunal erred in placing significant weight on the contents of a letter from an FCO political officer. Thirdly it is said that the tribunal's consideration of the proportionality of the removal of the appellant and her son was "all too brief".

Grounds 1 and 3 turn on the particular facts of this case and it is convenient to deal with them in reverse order before considering ground 2 which at least potentially does raise an issue of more general importance given that this determination is a country guidance case.

On behalf of the appellant Mr Bedford did not criticise the Upper Tribunal's summary in paragraphs 24 to 26 of its determination of the structured approach that should be adopted when considering Article 8 appeals in accordance with the guidance given in the case of Razgar[2004] UKHL 27. Nor did Mr Bedford challenge the Upper Tribunal's conclusion that, since the appellant and her son would be travelling to the Ivory Coast together, there would be no interference with their family life. I would observe that it was not suggested that the appellant had any other family life in the United Kingdom. Indeed the appellant in her own evidence had been at pains to emphasise her degree of isolation in the United Kingdom.

The tribunal nevertheless concluded that the appellant had exaggerated her sense of isolation in the United Kingdom so that removal, in the tribunal's view, would interfere with her private life. On the Upper Tribunal's finding of fact this was not a case of internal relocation within the Ivory Coast, the appellant would merely be returning to her home area, Abidjan, where she had lived for most of her life. Her stay in the United Kingdom had been relatively brief and, although she had integrated into the community in the United Kingdom to a greater extent than she had admitted, it could not sensibly be said that there would be a disproportionate interference with her private life, such as it was, in the United Kingdom. Indeed Mr Bedford made it clear in his oral submissions that this ground of appeal really turned on the interference with the private life of the appellant's son, who at the time of the tribunal's determination was four and a half years old and attending school.

The submission in the grounds of appeal that the Upper Tribunal did not have regard to the interests of the appellant's son is belied by the Upper Tribunal's express reference in paragraph 321 of its determination to the case of Beoku Betts[2008] UKHL 39 and its statement in the final sentence of that paragraph:

The tribunal did clearly consider the private life of the appellant's son but the fact remains as the tribunal said in paragraph 323 of its determination :

It is true that the tribunal dealt with the private life of the appellant and her son very shortly, but that is understandable in my judgment given the way in which the case appears to have been put to the tribunal.

Between the hearing on 9 June and the final hearing date on 18 August 2009 Mr Bedford produced a skeleton argument dated 29 June 2008. It is agreed that the reference to 2008 was an error and I will henceforth refer to the skeleton argument as the skeleton argument dated 29 June 2009. That skeleton argument did not advance any submission under Article 8, much less did it advance any particularised submission in respect of the private life in the United Kingdom of the appellant and/or her son. Mr Bedford told us that he made oral submissions on this issue before the tribunal, that of course I readily accept, but it is clear that the Article 8 appeal was not at the forefront of the appellant's case and it does not appear to have been developed in any detail beyond the contention that removing the appellant's son to the Ivory Coast when he had lived in the United Kingdom all his life would be more than a mere inconvenience but would be a significant hardship for him. The difficulty with that submission is that the tribunal did not accept the appellant's case that she would be destitute and unable to obtain employment if she returned to her home area Abidjan: see paragraphs 310 and 311 of the determination cited above.

The tribunal was satisfied that the appellant would be able to look after her son in Abidjan. In his submissions to this court Mr Bedford referred us to Section 55 of the Borders, Citizenship and Immigration Act 2009, which was in force by the time that the Upper Tribunal promulgated its determination in 2010. Although the tribunal did not refer to Section 55, it was not in force during the course of the hearing and the tribunal was not asked by either party to reopen the hearing to consider the implications of Section 55, it is plain that the tribunal did take into consideration the interests of the family as a whole including the interests of the appellant's son. The appellant's son is not a United Kingdom citizen. He will be returning with his mother to her home area in the country of which both she and he are nationals. The best interests of a four year old child (at the time of determination) were plainly that he should remain with his mother provided she could reasonably be expected to return to her home area as the tribunal concluded. For these reasons I consider that there is no substance in this ground of appeal.

Mr Bedford submitted that the tribunal was either unaware of the existence of or that it failed to deal with the background material which he submitted provided “compelling” support for the appellant's case that as a lone woman, a Muslim with a northern name she would face a real risk of sexual violence at police or other road blocks if she was returned to Abidjan. There was a reference in the skeleton argument, and there were further references in Mr Bedford's oral submissions, to dangers at road blocks elsewhere in the Ivory Coast. It seems to me that those references do not take the matter any further because the tribunal's conclusion was that the appellant and her son could and would return safely to Abidjan, which though not the capital city is the principal city of the Ivory Coast and estimates of its population are around the three million mark, see paragraph 302 of the determination.

Before the tribunal the issue of danger at road blocks arose in this way. Mr Bedford began his closing submissions on 9 June 2009 and paragraphs 231 to 233 of the Upper Tribunal's determination explain what happened next :

In paragraph 234 the tribunal said that Mr Bedford's comments had initiated a response dated 13 July 2009 from the political officer in Abidjan. The tribunal set out the political officer's letter in full :

The tribunal said in paragraph 236 that it could place "significant weight" on that evidence and on another letter dated 19 December 2008 from the political officer. No complaint is made about the 2008 letter in this appeal. Paragraph 237 records Mr Bedford's submission :

Ground 2 challenges the Upper Tribunal's rejection of Mr Bedford's submission that in those circumstances significant weight should not have been given to the letters. I will deal with Ground 2 below. Returning to Ground 1 Mr Bedford's skeleton argument dated 29 June 2009 was before the tribunal at the resumed hearing on 18 August 2009. Mr Bedford submitted that the extracts from various reports by Human Rights Watch, the United States State Department, the United Nations, Amnesty International and a February 2009 operational guidance note [OGN], which were set out in paragraphs 87 to 97 of his 29 June 2009 skeleton argument, all supported the proposition that the appellant would be at risk of sexual violence at road blocks in Abidjan and the tribunal either failed to realise this or to have regard to this evidence. During the course of his submissions Mr Bedford described this material as "compelling" evidence that the appellant would be at risk at road blocks.

I do not propose to set out all of the extracts relied upon by Mr Bedford, because I accept the submission of Mr Beer QC in the respondent's skeleton argument that the extracts do not answer the question that concerned the tribunal: was there any material that indicated the prevalence of such road blocks in Abidjan and in particular were they prevalent within the city itself, in which case of course it may well be very difficult for a person in the appellant's position to avoid them, or were they only at the entrances to and exits from the city? Most of the extracts do not refer to Abidjan at all. Two reports from the United States State Department in March 2008 and February 2009 do refer to a curfew prohibiting citizens from entering and leaving Abidjan city limits between either 11 pm and 6 am (March 2008) or midnight and 5 am (February 2009).

Mr Bedford placed particular reliance on a statement in Human Rights Watch's country summary for the Cote d’Ivoire dated January 2008:

He emphasised the fact that this extract referred to the fact that "few residents" were fully spared from such abuses. It is true that Abidjan is in the area that was at that time controlled by the government in the south. However given the size of Abidjan and its population and the fact that the observations relate to racketeering, extortion and intimidation as well as to the risk of assault at checkpoints, the proposition that "few residents are fully spared such abuses" cannot be read as supporting the proposition that all females are at real risk of sexual assault at road blocks within Abidjan.

It is clear that the tribunal realised that this particular aspect of risk, that is to say the risk at road blocks, was a relevant issue. That is the reason why it sought more information. The information referred to by Mr Bedford in his 29 June 2009 skeleton argument simply did not answer the tribunal's questions: what was the prevalence of road blocks in Abidjan? Were they prevalent within the city or did they exist only at the entrances to and exits from the city? On the material produced by Mr Bedford road blocks operated at night to control entry and exit at the city limits. On the face of the material they did not operate within the city itself. Hence the tribunal turned to the only evidence which did squarely address this issue in more detail, namely the letter from the political officer. For these reasons in my judgment Ground 1 fails on the facts. As Mr Bedford conceded, this is really the end of the matter because whatever view one then took of the weight to be given to the political officer's letter there was no evidence before the tribunal that there would be a real risk for this appellant at road blocks within Abidjan, which was the city to which it was proposed that she would return.

I will nevertheless deal with the submission in Ground 2 that the tribunal was wrong to place any significant weight on the political officer's letter dated 30 July 2009. Although Mr Bedford's skeleton argument contended that the tribunal was wrong to place any or any significant weight on the letter, in his oral submissions he accepted the tribunal was entitled to place some weight on the letter. Ground 2 was confined to the proposition that the tribunal had placed excessive weight on the letter because it had treated the letter as in effect expert evidence. That expert evidence had not been tested in the normal way by cross-examination. It was submitted that the tribunal was wrong to place the weight upon the letter that it did for two reasons. First, it was contended that the letter contained an obvious error and secondly and more generally it was contended that the tribunal had not properly assessed the weight that it should give to the letter, and that in any event it was procedurally irregular or unfair for the tribunal to rely on the letter when the political officer had not been required to reveal her identity or her sources because the appellant was thereby prevented from making any effective challenge to the contents of the letter.

The "obvious error" is said to be contained in the following passage in the letter:

It was submitted in the appellant's skeleton argument that each of the reports referred to in the 29 June 2009 skeleton argument (see above) refers to violence targeting women especially at checkpoints.

The short answer to this detailed criticism of the letter is that the political officer was specifically dealing with the position in respect of the "official checkpoints on the way into and out of main cities". The reference to "these checkpoints" is a reference to those official checkpoints and not to checkpoints in the country generally. That the reference is so confined is readily understandable because the tribunal had asked for information about the position in Abidjan, and not about the position in the country generally.

As I have mentioned when dealing with Ground 1, the reports relied upon by Mr Bedford did deal with the position in the country generally, with the possible exception of the report from Human Rights Watch dated January 2008. That does refer to intimidation and assaults at "hundreds of roadside checkpoints" but it is not clear whether the material on which the January 2008 report was based was confined to the position since the implementation of the accord in March 2007. That was the point that was being made in the passage in the political officer's letter, which was criticised by Mr Bedford. It seems to me therefore that there is no force in this criticism of the letter.

Turning to the complaint on the ground of procedural irregularity or unfairness, it is right to note that this particular aspect of the appellant's case that is to say the risk of sexual assault at checkpoints was based not on expert evidence but on the reports from Human Rights Watch and United States State Department, the United Nations and the United Kingdom government (the OGN) to which I have referred. In most if not all of those cases the authors of those reports would not have been identified and in many instances the identity of their sources would not have been disclosed, for obvious reasons, if those sources were critical in any way of the government.

In these circumstances it is difficult to see how there could be any objection in principle to the tribunal considering a report or letter from an unidentified FCO political officer, and indeed in his oral submissions Mr Bedford accepted that the tribunal was entitled to give some weight to the letter. In the light of that concession it seems to me that the weight to be given to such evidence, bearing in mind the fact that the author had not been identified and was not available for cross examination, was for the tribunal to assess in the light of the particular circumstances of that appeal. Those circumstances included the fact that although the political officer was not identified she had explained that she had been in post for two years and she had made it plain that her letter was based on her own experiences and observations during that time together with information gathered during conversations with Ivorians. It would be unrealistic to expect the political officer to identify those Ivorians with whom she had those conversations. The political officer does not suggest that those with whom she had had the conversations had any particular expertise. Essentially the political officer was relying on her own observations as a result of two years experience in her post. Beyond that she did not claim to have any particular expertise . Therefore it seems to me that the knowledge of this particular political officer's identity would not have been capable of materially assisting this particular aspect of the appellant's case.

The tribunal was well aware of the fact that the political officer was not available to be cross examined. In paragraph 229 it said :

It seems to me that both of those submissions, that made by Mr Bedford and that made by Ms Kiss as reported by the tribunal, were entirely correct. The fact that the political officer did not attend before the tribunal did go to the weight to be attached to the material she had been provided , but equally, if the tribunal had ignored it, it would have been deprived of a proper objective assessment of the situation in the Ivory Coast as seen by the political officer.

Having recorded Mr Bedford's submission in paragraph 237 (see above) and the authorities on which he relied in paragraph 238 of its determination, the tribunal answered the submission in paragraphs 235 to 242. In paragraph 240 the tribunal said that it found the decision in LP (LTTE area – Tamils – Colombo – risk? Sri Lanka)[2007] UKAIT 00076 most persuasive. The tribunal cited paragraphs 204 and 205 of that determination. Paragraph 205 in LP is as follows:

Having set out those extracts from the determination in LP the tribunal concluded in paragraphs 242 to 244 of its determination in the present case:

We can appreciate the FCO’s position that the authority in their letters, lies in the fact that they were issued from the British Embassy in Abidjan rather than the personal credentials of the individual who provided it. As Mr Jones, the Deputy Director of Migration, pointed out in his letter to us of 12 January 2009, such letters were regularly provided by posts abroad to the UKBA and often had input from senior/legal staff as well as the actual signatory. If embassy staff were to be routinely required to give evidence in cases where those letters were used in evidence, there would be considerable practical and resource implications that would likely impact on the ability to provide this service.”

Mr Bedford submitted that that approach of the tribunal was not consistent with the approach of the European Court of Human Rights in its judgment in NA v the United Kingdom[2008] ECHR 616. In that case the European Court of Human Rights considered the tribunal's own country guidance in the LP case. There was a dispute between the parties in NA as to the weight that should be attached to a report containing the UNHCR's assessment of the general situation in Sri Lanka. The European Court of Human Rights therefore restated the approach that it takes to "the assessment of objective information" in paragraphs 119 to 122 of its judgment:

In the LP case the tribunal had relied on letters from the British High Commission. The European Court of Human Rights did not suggest that that was an impermissible practice and indeed in paragraph 121 it expressly acknowledged that States through their diplomatic missions and their ability to gather information will often be able to provide highly relevant information. However, that information is not simply to be taken at face value. As with background information that is contained in reports from other non-governmental organisations such as Amnesty International or other government sources such as the United States State Department, the information provided by the United Kingdom Diplomatic Service must be assessed in the light of all relevant factors including those factors specifically mentioned in paragraph 120 of NA (see above): independence, reliability, objectivity, corroboration et cetera.

The implications of the European Court of Human Rights judgment in NA were considered by the Asylum and Immigration Tribunal when it revisited the country guidance in LP in its determination in TK [Tamils – LP updated] Sri Lanka CG [2009] UKAIT 00049. A panel comprising Carnwarth LJ the Senior President of Tribunals, Mr Ockleton, the Deputy President of the Tribunal and Senior Immigration Judge Storey said in paragraphs 5 to 7:

Secondly, it is clear that the court’s endorsement of the validity of a system of country guidance such as is applied in the UK was not unconditional. It was given only because the Court was satisfied that the UK AIT had conducted a careful and comprehensive assessment weighing different sources according to their objective merit. The Court also fully recognised that country guidance is not inflexible; it must be applied by reference to new evidence as it emerges; otherwise it would fall foul of the principle of ex nunc assessment of risk. Our country guidance system can only expect to have authority domestically and command respect abroad, therefore, if it maintains these standards.

The emphasis we place on assessment based on objective merit prompts us to make one further comment. It is still widespread practice for practitioners and judges to refer to “objective country evidence” when all they mean is background country evidence. In our view, to refer to such evidence as “objective” obscures the need for the decision-maker to subject such evidence to scrutiny to see if it conforms to the COI standards just noted. This practice appears to have had its origin in a distinction between evidence relating to an individual applicant (so-called “subjective evidence”) and evidence about country conditions (so-called“objective evidence”), but as our subsequent deliberations on the appellant’s case illustrate (see below paras 153-9), even this distinction can cause confusion when there is an issue about whether an appellant’s subjective fears have an objective foundation. We hope the above practice will cease.”

The AIT specifically considered the approach that should be adopted to evidence from the British High Commission in paragraph 70 of its determination :

Mr Bedford submitted that the tribunal had erred in the present case in its approach to the political officer's letter because it had followed the approach in paragraph 205 of LP that it cited in paragraph 231 of its determination. He particularly drew attention to the propositions in that paragraph that:

Mr Beer accepted that those observations were overly prescriptive as to the weight to be given to such letters. They may be given significant weight and it may be appropriate to give them equal value to that of a well informed balanced country expert, but whether it is appropriate to do so in any particular case must now be assessed in accordance with the guidance that is contained in NA and TK see above. Although the tribunal in the present case did not refer to NA, in my judgment it adopted the approach that is described in that case. It treated the political officer's letter not as expert evidence but as akin to other kinds of country information. It considered whether it should attach weight to the fact that the Embassy had vouchsafed that one of its staff had furnished the evidence in good faith and concluded that it should. It considered the provenance the information and most importantly it concluded in the final sentence of paragraph 242:

The weight to be given to any particular piece of evidence, whether letter, report or live evidence, is generally a matter for the tribunal to determine. Therein lies its expertise. However Mr Bedford submitted that the tribunal must be taken to have given undue weight to the letter because it is submitted that the letter conflicted with and was the only evidence which rebutted what he described as the compelling "objective evidence", namely the evidence on which he relied in Ground 1. For the reasons given above I am satisfied that that submission proceeds on a false premise, namely that there was compelling evidence to that effect. In reality the only evidence on this particular issue raised by the tribunal was the information in the United States State Department reports which indeed were echoed in the FCO's advice to travellers, which was referred to in the political officer's letter, namely that there were checkpoints at city limits at night. There was no evidence to contradict the information which was contained in the political officer's letter. Mr Bedford sought to distinguish the political officer's letter from more general background information such as that contained in reports by the United Nations, by Amnesty International and by the State Department but it seems to me that if there is a difference the difference is merely one of degree. The political officer's letter was answering the tribunal's question: what is the prevalence of road blocks in Abidjan? There is no difference in principle between providing information in respect of that issue and providing information about the prevalence of road blocks in the Ivory Coast generally.

For these reasons I am satisfied that there is no substance in Ground 2. Since this is a country guidance case I would merely repeat the point that the correct approach to information such as that contained in the political officer's letter is now to be found in the decisions in NA and TK. That observation applies also to the tribunal's observations in paragraphs 264 and 265 of its determination in the present case as to the weight that should be given to OGNs. The tribunal's observations as to the provenance of OGNs are certainly relevant but they should be considered as part of the assessment that is required by NA and TK.

For these reasons I for my part would dismiss this appeal.

I agree. The argument in the present case predated the Strasbourg decision in NA and the IAT decision in TK which considered the effect of NA. Those cases provide authoritative guidance on the proper approach to country information in the form of reports or letters provided by British Embassies, High Commissions and diplomatic representatives. Unnecessary citation of authorities should be discouraged. It should not ordinarily be necessarily for tribunals in future to go back to earlier tribunal decisions for guidance on that topic.

I also agree and wish to express agreement with Sullivan LJ on one aspect of LP [2007] UKAIT 00076. In that case the tribunal considered information provided by the British High Commission, Sri Lanka being a Commonwealth country. The weight to be given to such information was challenged before the tribunal. In the present case the tribunal cited paragraphs from the earlier decision. Sullivan LJ has set them out in his judgment. The tribunal then stated :

There is one view expressed in two sentences of the decision in LP with which I respectfully disagree. The tribunal stated:

I do not agree with the use of the word "must" in the first reference and the use of the word "should" in the second. Mr Beer QC did not agree with those words either. The weight to be given to the information will be for the tribunal to decide, as an expert fact finding tribunal, in the circumstances of the particular case. The weight and value of British Embassy or High Commission information will depend on the view the tribunal takes of it in the particular circumstances. Guidance as to the approach to be taken to such in-country material from agencies of the UN, reputable NGOs, and governmental sources was given by the European Court of Human Rights in NA v The United Kingdom [2008] ECHR 616 at paragraph 120. That was cited by Sullivan LJ. The tribunal did not, however, fall into the error of giving information from the British Embassy a special status in this case. They stated at paragraph 242 that the tribunal was "entitled" to attach weight to the information. They added at the end of paragraph 242:

I agree that there was no error of law in the approach of the tribunal in this case and the appeal must be dismissed.