Hussein, R (on the application of) v Immigration Appeal Tribunal

MR JUSTICE MAURICE KAY: This is an application for judicial review of a refusal of leave to appeal to the Immigration Appeal Tribunal. The claimant is a citizen of Yemen. He arrived in the United Kingdom on 22nd September 2001 and claimed asylum on 11th October 2001. His claim was refused by the Secretary of State and in due course he appealed to an Adjudicator.

In a determination promulgated on 11th June 2002, the Adjudicator dismissed both asylum and human rights appeals, and on 26th July 2002, the Immigration Appeal Tribunal refused leave to appeal.

The claimant's case was that he had joined the Yemeni Socialist Party and had had some responsibility for recruitment and involvement in demonstrations. He gave an account of periods of detention and ill-treatment arising out of his political activities.

He had been arrested in May 1995 for organising a demonstration. On that occasion, he was detained for a day and questioned and given a warning about future political activity, but he was not ill-treated.

He heeded the warning for some time, but resumed political activities in 1996. This led to his second arrest and detention in early 1997. That arose out of participation in a demonstration. He was detained for three days and in his words "was tortured which consisted of repeated punches and kicking into my body". He was also deprived of food and water and was repeatedly interrogated about his activities and those of others who were involved with the Yemeni Socialist Party.

He was released by the security forces when his father intervened by bribing some officials. Following his release, he resumed his political activities and towards the end of 1998 he was arrested for a third time. On this occasion, he had gathered a crowd of people together and was addressing them. He was detained at a prison for two weeks and again in his words "was tortured which consisted of punching in the face and in the stomach. I was also repeatedly kicked in the body. I was further pushed against the wall and hit with the butt of a rifle". He refers to repeated interrogation. Again, his release was bought by his father bribing officials in the security forces.

He was next arrested in June 1999 and this time detained for three days. This arrest and detention arose when he was addressing a group of people at a gathering. He says that in the course of his detention his head was repeatedly hit against the wall of the cell and that he has a visible mark on the right side of his forehead. He was repeatedly beaten with a stick across his legs and on his left shoulder, which has been permanently damaged. He was released again on the payment of a bribe by his father.

Those periods of detention were all accepted by the Adjudicator. There are two later incidents which were not accepted and I shall come back to those later. So far as the periods of detention and ill-treatment are concerned, the Adjudicator clearly accepted the evidence of detention. However, he said:

Later in the determination, he added this:

When the claimant sought to pursue an appeal to the Immigration Appeal Tribunal, the grounds of appeal were predicated on the hypothesis that the Adjudicator had accepted his evidence not only of detention but also of ill-treatment in detention. That was clearly spelt out in the grounds of appeal.

In refusing leave to appeal, the Immigration Appeal Tribunal said:

The rival submissions before me proceed on different interpretations of the determination of the Adjudicator. As I have indicated, the case for the claimant is that his evidence about detention and ill-treatment in detention was accepted by the Adjudicator. The case for the Secretary of State is that whilst detention was accepted, the evidence of ill-treatment was not. All that was accepted was a modest amount of official misconduct, subsumed under the words "adverse attention from ill-disciplined officers, falling short of torture".

In the skeleton argument which had been lodged on behalf of the Secretary of State, the point was made, or conceded, that if the Special Adjudicator had accepted the evidence of ill-treatment, it would be strange to conclude "that such brutal treatment was not torture and/or persecution".

Miss Adedeji rightly points to this as the central issue in the case. Is the Secretary of State correct or justified in submitting that the case for the claimant simply misinterprets the findings of the Adjudicator, which are clear and adverse to the claimant on the question of substantial ill-treatment in detention?

I cannot and do not conclude that it is self-evident that the Adjudicator made adverse findings in relation to the claimant's account of ill-treatment in detention. As one would expect where the Adjudicator was minded to disbelieve the claimant, he said so and explained why this arose, in relation to one of the car incidents, to which I shall return, and also in relation to a document, which he found not to be genuine.

However, in my judgment, the determination nowhere rejects in terms the evidence of the claimant in relation to the treatment which he received whilst in detention, nor can it be said that such rejection arises from necessary implication from the language that is used. True it is that the Adjudicator rejected that the evidence amounted to torture. However, that does not dispose of its potential evidential value in relation to past persecution and the risk of future persecution.

If it were the case that the Adjudicator was rejecting that evidence, or substantially rejecting it, then it was incumbent upon him to make it clear that he was so rejecting it and to explain why. The mere fact that the evidence related to repeated periods of detention and repeated ill-treatment, together with repeated release upon payment of a bribe and without charge, was not in itself a reason for rejecting it as evidence of what had occurred, nor indeed was it suggested by the Adjudicator that it was.

The Adjudicator referred to the repetitive pattern of these instances, but so as to make a finding as to the level of interest of the authorities in the claimant, rather than so as to explain the rejection of his evidence as to what had happened. Indeed, quite apart from the evidence of the claimant, his brother had given evidence that he, too, had been detained and ill-treated in custody on a number of occasions before being released upon the payment and bribes and before coming to the United Kingdom through a similar process to that pursued by the claimant.

The Adjudicator referred to that evidence, but did not reject it. This of course does not mean that because the brother, who has been granted refugee status, has been successful in his applications, that the same must necessarily follow in relation to this claimant. Of course, that does not follow. However, his evidence as to how he had been treated was before the Adjudicator, was not rejected by the Adjudicator and, as with the evidence of the claimant himself, was consistent with some of the objective material before the Adjudicator.

In my judgment, the determination of the Adjudicator cannot fairly and properly be construed as being based upon a rejection of the claimant's evidence as to what happened to him in detention. It contains no such express rejection. I do not see fit to imply one, and if there were rejection, it was a rejection that was inadequately reasoned.

Of course, what is under challenge in these proceedings is not the determination of the Adjudicator but the refusal of leave by the Immigration Appeal Tribunal. However, the flaw which in my judgment permeates the determination of the Adjudicator was not identified by the Immigration Appeal Tribunal. The reasons for refusing leave do not expressly reject the grounds of appeal, which were clearly predicated on the assumption that the evidence of ill-treatment had been accepted by the Adjudicator.

In my judgment, the refusal of leave by the Immigration Appeal Tribunal does not properly meet the grounds of appeal that were before it. If it had, it would have dealt with some of these issues in the way that it has been necessary for me to deal with them here. However, that was never done. These flaws in my judgment vitiate the approach of the Adjudicator and the Immigration Appeal Tribunal to the question of past persecution and, by reason of that, to the assessment of future risk. I therefore conclude that this primary ground of challenge must succeed and the refusal of leave must be quashed.

In the course of this judgment, I have referred to the two car incidents. Miss Adedeji relies on these in support of her submissions. The case for the claimant before the Adjudicator had been that there was a fifth occasion on which he had been arrested and detained. It arose when he had been driving his car and had been flagged down by a person seeking a lift. The case for the claimant was that this man, ostensibly a civilian, turned out to be an official of the security forces and, in the course of the journey, he discovered some Yemeni Socialist Party leaflets in the side pocket of the back door. This led to a further period of arrest and detention and ill-treatment similar to that which occurred on the previous occasions and with a similar result of release upon payment of a bribe.

The Adjudicator rejected that period of detention. He referred to the likelihood or otherwise of controversial political literature being kept in the car and to accepting a complete strange as a passenger in those circumstances. He added:

I do not feel able to interfere with that factual finding and therefore I reject a ground of challenge based upon it.

Similarly with the second car incident, when, according to the claimant, he was driving his car on another occasion when he was flagged down by a man who tried to force his way into the car. According to the claimant, he saw that the man had a radio in his pocket and realised that he was a member of the security forces. He made good his escape and it was soon after that that he began the process which resulted in his departure from Yemen.

There are arguments about that evidence and the finding by the Adjudicator that there was no explanation as to how the security official knew that the car belonged to the claimant or why he would seek to get into the car. As with the first car incident, I have read what the claimant had said about these matters in his statements, but I was not present at the hearing before the Adjudicator. I do not have a record of the evidence and of course did not have the opportunity to assess the claimant when giving that part of his evidence. To the extent that these are factual findings, I do not find myself able to say that they are perverse.

There is a final issue, but in my judgment nothing turns on it. Miss Broadfoot points to the fact that the Adjudicator was entitled to take into account all the evidence before making his assessment. That of course is true. She submits that he was entitled to attach significance to the fact that the claimant travelled on his own passport with a visa and she refers also to the other circumstances leading to his departure. Unquestionably, they are matters to which the Adjudicator was entitled to have regard.

However, in my judgment, they do not cure the gaping hole in the middle of his determination, which is that he did not, or did not satisfactorily, reject the evidence of the claimant as to what had happened to him whilst in detention on the occasions when such detention was accepted by the Adjudicator. So far as that is concerned, for the reasons which I have already given, this application succeeds with the consequences to which I refer.

Thank you both very much.

MISS ADEDEJI: My Lord, I am grateful. May I ask for the claimant's costs?

MR JUSTICE MAURICE KAY: Yes.

MISS BROADFOOT: I cannot resist that, my Lord.

MR JUSTICE MAURICE KAY: Nothing to say?

MISS BROADFOOT: No.

MR JUSTICE MAURICE KAY: Thank you.

MISS BROADFOOT: Does your Lordship need to direct that the decision of the IAT be quashed, and that is all that happens in effect?

MR JUSTICE MAURICE KAY: Yes.

MISS BROADFOOT: Obviously, the IAT will have to take on board the comments that your Lordship made.

MR JUSTICE MAURICE KAY: Yes, quite so.

Thank you both very much.