ML (Nigeria) v Secretary of State for the Home Department

Of all the hackneyed phrases in the law, few are more frequently deployed in the field of immigration and asylum claims than the requirement to use what is described as “anxious scrutiny”. Indeed, so familiar and of so little illumination has the phrase become that Carnwath LJ in R(YH) v SSHD [2010] EWCA Civ 116, between paragraphs 22 and 24, was driven to explain that which he had previously explained, namely what it really means. He said that it underlines “the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account”. It follows that there can be no confidence that that approach has been taken where a tribunal of fact plainly appears to have taken into account those matters which out not to have been taken into account. To similar effect, our attention was drawn to a recent case of the European Court of Human Rights, the case of Singh & Ors v Belgium (Application no. 33210/11) (the second section of the court) on 2 October 2012 in which the court again reaffirmed the importance of decisions in this field and in the field of human rights. In that case it was Article 3 and, as it put it:

“...the irreversible nature of the harm likely to be caused in case of the realisation of the risk of ill treatment, [in the light of which] it is the responsibility of the national authorities to show that they are as rigorous as possible, and carry out a careful investigation of the grounds of appeal drawn from Article 3 without which the appeals lose their efficiency... Such an investigation must remove all doubt, legitimate as it may be, as to the invalidity of a request for protection regardless of the competences of the authority responsible for the control.”

The instant appeal is yet another unfortunate example where the First-tier Tribunal displayed an absence of care, both as to the recitation of the facts and the arguments that were advanced in relation to a claim for asylum. The question that arises on the appeal is as to what the approach, either of the Upper Tribunal or the Court of Appeal, should be to a case where there has been substantial errors in the recollection and record of the facts that were advanced in the case, and of the procedures and processes by which arguments were advanced in favour of the asylum-seeker. This is a good case in which to consider the proper approach of the Upper Tribunal and the Court of Appeal because, doing no injustice to this appellant, he had a very difficult case to run indeed.

Let me explain what I mean as to why his case was so difficult. He was a citizen of Nigeria born in April 1974, who arrived in the United Kingdom in 2004. At that time, he advanced a case for asylum that he subsequently was to confess was untrue. His case was that he came from an area in southern Nigeria, where he had worked as a mechanic and was at risk from members of a particular group such as to force him to leave for fear of his life in January or February 1990. He said he was threatened by that group whilst he was at home, be it noted, with his wife and three children. He must then have been about 15 or 16. He then spent 15 years, although it is later described as 14 years, slowly making his way to the United Kingdom. His claim for asylum in July 2005 was rejected by the Secretary of State. On appeal the appellant admitted that this was a wholly false claim and was untrue, as a result of which in August 2005 he was removed to Nigeria.

He re-entered the United Kingdom secretly in 2006. He did not come to the attention of the authorities until some three years later, when he was arrested for a sexual offence, using a different name, allegedly committed against a woman. It was that arrest in March 2009 which triggered an application for leave to remain on 8 June 2009. He again applied. His application was refused, and he was convicted of the sexual assault and sentenced to six months’ imprisonment in November 2010.

He applied once again for leave to remain on human rights grounds in March 2011. This time, his claim was that he would be at risk of persecution as a homosexual if he were returned to Nigeria, and his claim was refused. He appealed, and his appeal came before Immigration Judge Khan, who promulgated his decision two days after the hearing on 19 May 2011. This decision is impugned as containing those errors to which I have already referred, both in relation to fact and in relation to the procedure in the light of which the judge reached an adverse conclusion. The judge’s conclusion was that he disbelieved the claim, that the claimant was a liar prepared to do or say anything to stay in the United Kingdom and, in particular, his claim that he was homosexual and thereby at risk should he be returned to Nigeria was untrue.

The determination of the judge contains serious errors, and it is admitted on behalf of the Secretary of State, in the very helpful, frank submissions of Mr Rawat, that those errors were contained within the determination. It is important that I identify those errors. They start in the description by the judge of the proceedings. At paragraph 9 of his determination, he identifies correctly the bundle and the number of pages containing written witness statements of the claimant and of his partner, but then adds that he was handed counsel’s written skeleton arguments; there were no written skeleton arguments. Very shortly after at paragraph 12 of his determination, the judge records that the appellant’s case is set out “in his screening interview, his asylum interview and his statement in his oral evidence at the hearing”. There was no screening interview nor asylum interview setting out the appellant’s case that he was at risk of persecution because of his homosexuality. There had been a screening interview and asylum interview in relation to his original claim for asylum back in 2005 but no such interviews in relation to the case that he was advancing before Immigration Judge Khan.

Four paragraphs later, the errors become even more difficult to follow. There is a paragraph which says:

“The appellant states that the EPDP came to his house and threatened him and forbidding him to anyone that he had witness people being killed [sic]. An argument developed and that he was beaten, he was attacked with a sword; his left thigh and waist were slashed. The appellant claims that he suffered at the hands of the Sri Lankan authorities.”

This paragraph has nothing whatever to do with this appeal. It appears to have been inserted possibly in relation to another case, although where it comes from and why it is there will never be known.

Paragraph 22 refers to the Grounds of Appeal and to the appellant’s legal representative’s written skeleton arguments; there were none. The error is made more profound by a reference in the same paragraph to the fact that those written skeleton arguments are fully set out in the record of proceedings. They cannot have been. There were no written skeleton arguments.

The judge then refers to the submissions. However difficult a case a claimant to asylum has to advance, whatever his prospects of success and however falsely optimistic he may be, he is entitled to have deployed on his side submissions as to why, however difficult the case may appear, he should nonetheless be believed. Therefore submissions on his behalf, both orally and in writing, are important. But at paragraph 35, in referring to those submissions, the judge refers to counsel who was not counsel in the case but somebody else and says that that other counsel seeks to rely on her written skeleton arguments as well as the oral submissions. There were no skeleton arguments, as I say for the third time, and yet they apparently were taken into account by the judge.

There was a contradiction between the evidence of him and his male partner. He said that he had not seen his wife since January 2010 whereas the male partner he called said that they had met and he had met the family only a month ago at Easter. There were further contradictions between the appellant’s claim and the evidence of his partner. The appellant said that he had lots of presents from his civil partner, mostly clothes and a birthday card, whilst his civil partner said they did not celebrate the appellant’s birthday and he had not given him a present. The judge therefore concluded that neither the appellant’s evidence nor that of the man he claimed to be his civil partner was credible or consistent, so that he concluded:

“On the totality of the evidence before me, I find that this appellant is not a homosexual and that he is using the cloak of homosexuality to make a case out for his stay in the United Kingdom. I find that he is willing [to] tell, say or do anything that assists his case.”

When the matter came before the Upper Tribunal, the Upper Tribunal correctly identified the errors to which I have referred. It was accepted that the appellant had previously lied, but the Upper Tribunal clearly took the view that the errors to which I have referred were merely what they described as “a number of careless factual errors” (see paragraph 15). The Upper Tribunal pointed out, undoubtedly correctly, that they could only set aside the original determination where the Immigration Judge had made a material error of law. But the Upper Tribunal seems to have been under the impression that regrettable factual errors could not constitute arguable errors of law. Having identified those errors to which I have already drawn attention, the Upper Tribunal concluded:

“For these and other reasons, we are satisfied that despite the regrettable factual errors made by the Immigration Judge in his determination, as highlighted by Ms Ofei-Kwatia [counsel for the appellant at that time], he was nevertheless entitled to reject in its entirety the evidence given before him by the appellant and his claimed civil partner for the reasons which he has given. On the basis of that sustainable adverse credibility finding, his decision to dismiss the appeal on all grounds inevitably followed. It discloses no arguable error of law on the Immigration Judge’s part. There is therefore no basis in law for interfering with his decision.”

In my view, the Upper Tribunal misdirected itself as to the law. A series of material factual errors can constitute an error of law. It is trite in not only the field of judicial review but also statutory appeals and appeals by way of case stated that factual errors, if they are significant to the conclusion, can constitute errors of law. Moreover to take into account that which did not exist, for example a written skeleton argument, again is plainly an error of law. I put aside the plain error in referring to Sri Lanka as a factual error which necessarily vitiates the conclusion that was reached, but the essential question for the Upper Tribunal, as it seems to me, was whether this appellant had the fair hearing to which he was entitled before adverse findings of credibility were found. It is surely trite, but in any event we have the recent decision of the second section of the European Court of Human Rights as authority if authority is needed, that everyone, however poor their case, is entitled to a fair hearing. As part of that fair hearing, the finders of fact must listen to and take into account conscientiously the arguments that are deployed in favour of a finding that the claimant is telling the truth as well as those arguments against. It surely needs no further authority, and certainly no words of mine can achieve anything like the force of those words such as Megarry J in John v Rees [1970] Ch 345 as to the importance of conscientiously listening to the arguments rather than regarding the conclusion as open and shut.

In those circumstances, even this claimant (and I underline “even” because undoubtedly he had a very difficult case) was entitled to a fair hearing in which his arguments were advanced. How then is the Upper Tribunal, or for that matter the Court of Appeal, to judge whether someone had a fair hearing? Part of the way that can be judged is by looking at the determination, looking at that which is recorded and looking not only at the cogency of the reasons but the procedures by which the judge reached his adverse conclusion. The submissions were important, yet apparently this judge took into account that which did not exist at all, namely written skeleton arguments and interviews setting out the case in relation to this appellant’s claimed homosexuality.

In that context, the carelessness which led him to refer to Sri Lanka takes on a more sinister turn. How can it be said that this judge carefully and conscientiously considered the arguments both against and for this claimant before reaching the serious conclusion that he was not to be believed? In my view, it cannot. The procedure was so flawed by which the judge reached his conclusion that, in my view, it was plainly an error of law because this claimant had no proper or fair hearing at all.

In those circumstances, it seems to me that the only conclusion the Upper Tribunal should have reached was to set aside the decision of the First-tier Tribunal and try the matter again or, if there was not time to do so, although we understand the witnesses were there, send it back for a further hearing. For my part, because the FTT decision was so bad and because of the inability that I have to have any confidence that the judge conscientiously and fairly took into account the arguments deployed on behalf of the appellant, I am led to the conclusion that the Upper Tribunal’s decision ought to be quashed.

As a second limb, as I have hinted, Mr Rawat said that, even if there were these errors, there is no point in sending this case back for a further hearing. But so bad was the decision that, in my view, it would be wrong to consider the chances of success that the claimant might have a second time round. I am perfectly prepared, as a matter of hypothesis, to assume that he will have a very difficult run on a further occasion. But that cannot displace the obligation for the procedure to provide him with a fair opportunity of deploying his case. It is, after all, the reputation of the courts, and the courts in relation to immigration, which is at stake here. It seems to me that they cannot be preserved and protected as deserving respect if a decision which is so flawed is allowed to stand.

I would allow the appeal.

I agree. In paragraph 18 of its determination, the Upper Tribunal said this:

“For the foregoing reasons, our decision is as follows:

The making of the previous decision involved the making of no error on a point of law. We do not set aside this decision, but order that it shall stand.”

In agreement with Moses LJ, I consider it clear that a material error of fact in a determination of a tribunal will constitute an error of law. A material error of fact is an error as to a fact which is material to the conclusion. If there is any doubt as to whether or not the incorrect fact in question was material to the conclusion, that doubt is to be resolved in favour of the individual who complains of the error. It is clear from the determination of the First-tier Tribunal that the appeal of this appellant was not considered with the care that was required.

It is said on behalf of the Secretary of State that there was no point in setting aside this determination, because the result would be inevitable. A case in which, after such egregious errors, the result would be inevitable would be extremely rare indeed and this is not one of them.

I agree with both judgments. We will remit the case to the Upper Tribunal and direct that the case be redetermined by way of rehearing.