Royal Courts of Justice
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
THE QUEEN ON THE APPLICATION OF YEMBA FERUZI
(CLAIMANT)
-v-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT)
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MR E WAHEED (instructed by SOUTHERNS) appeared on behalf of the CLAIMANT
MR P PATEL (instructed by THE TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
J U D G M E N T
Monday, 24th March 2003
MR JUSTICE MAURICE KAY: The claimant, a citizen of the Democratic Republic of Congo, arrived in the United Kingdom on 16th January 2001 and claimed asylum. On 8th March 2001, the Secretary of State refused the claim and certified that it was one to which paragraph 9(4)(a) of schedule 4 of the Immigration and Asylum Act 1999 applied, and that paragraph 9(7) did not apply.
The claimant appealed to an adjudicator and by a determination promulgated on 17th December 2001, the adjudicator dismissed the appeal and upheld the certificate. That meant that the claimant had no right to apply for leave to appeal to the Immigration Appeal Tribunal. The adjudicator also dealt with an appeal under the Human Rights Act, and that too was dismissed. However, it was not the subject of a certificate, and the claimant was able to seek leave to appeal to the Immigration Appeal Tribunal in relation to it. On 22nd August 2002, the Immigration Appeal Tribunal refused leave to appeal. That refusal of leave has not been challenged.
In the present proceedings the claimant is seeking judicial review of the upholding by the adjudicator of the certification of his asylum appeal. The relevant provisions of schedule 4, paragraph 9, are as follows:
"9.-(1): This paragraph applies to an appeal under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim is one to which -
sub-paragraph (3), (4), (5) or (6) applies; and
sub-paragraph (7) does not apply.
If, on an appeal to which this paragraph applies, the adjudicator agrees that the claim is one to which this paragraph applies, paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal.
This sub-paragraph applies to a claim under the Refugee Convention if -
it does not show a fear of persecution by reason of the appellant's race, religion, nationality, membership of a particular social group, or political opinion...
This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country to which he is to be sent."
The claimant's account of the relevant history is as follows; he was born in the DRC on 6th August 1976. One of his grandmothers was originally from Rwanda. She was murdered by Congolese soldiers in 1998, as was his mother, who was present at the time. He attributes this to his grandmother's Rwandan origins.
In December 1998 he was stopped by some soldiers who were in a jeep. They said he looked like a Rwandan. They arrested and imprisoned him for two days, during which time he was "beaten up" and left with scars on his chest and leg. On his second day in prison he was visited by Colonel Kabango, who arranged his release.
In the determination the adjudicator referred to those events in these terms:
"He stated that he was released by Colonel Kabango so long as he worked for the Colonel. The reason he was requested to work was because he spoke both Swahili and Lingala and therefore appeared to have some use for the colonel's purposes. He was then after release from prison introduced to a man by the name of Moussa and found accommodation... He said that he dealt with letters... Moussa would collect letters from military camps in Kinshasa and take them to himself. He then put on a disguise such as a hat so that he didn't look like a Rwandan, took the letters that were normally given to him by Moussa on Tuesday and the following day would take those letters to the main post office in Kinshasa. Sometimes he would get public transport, other times he would walk. If he took public transport it would take him one hour to get to Kinshasa. If he walked it would take him three hours. At the post office he was given a post office box number 10937 and with a key provided would open that post box, deliver letters and retrieve any letters from that box. Sometimes he stated that he collected parcels that he believed contained cash. He had no idea what the letters contained. The following Tuesday Moussa would then pick up the letters and any parcels from his home. He formed the view that the Colonel was on the brink of overthrowing the government. He said that he was paid 200 US dollars to start with and that sum then reduced to 150 US dollars. He was paid in cash by Moussa and was made to sign a receipt.
"On the 14th January 2001 he saw the Colonel who arranged for him to leave the country as the government had found out what was happening. He was given a passport by the Colonel and told that he was going to the UK. He saw his own photograph in the passport but it was not his name. He was taken to the airport and left..."
The adjudicator rejected the account concerning Colonel Kabango and Moussa as incredible. He said:
"In view of my findings on fact and credibility above I do not find that the Appellant had a well-founded fear of persecution nor do I find that on any occasion he has come to the attention of the authorities save and except that in December 1998 two or three individual soldiers may well have stopped and temporarily detained the Appellant because he was not carrying an ID card and looked Rwandan. That occasion was the action of two or three individuals alone. Before that date and since that date on the Appellant's own acceptance he has not come to the attention of the authorities in any way nor has he suffered any form of harassment or persecution. Given that I do not find credible the account of his involvement with Moussa or the Colonel there is in my view no well-founded fear of persecution should he be returned to the Democratic Republic of Congo."
On behalf of the claimant, Mr Manjit Gill QC's central submission is that the upholding of the certification was legally flawed. He contends that it was not open to the adjudicator to conclude that paragraph 9(4)(a) applied or that paragraph 9(7) did not apply. It is common ground that the certification would be flawed if the adjudicator erred in relation to either paragraph 9(4)(a) or paragraph 9(7).
The approach required by paragraph 9(4)(a) was considered by Mr Justice Stanley Burnton in R (on the application of Gavira) v Secretary of State for the Home Department, where he said in paragraph 10:
"In my judgment, the question whether a claim shows a fear of persecution, for the purposes of paragraph 9(4)(a) depends solely on the content of the claim. A claim which asserts that the asylum seeker has a fear of persecution based on facts which, if true, would involve Convention grounds, is a claim which 'shows a fear of persecution' on such grounds. Different words would have been used if the test were whether the asylum seeker has a factually well-founded fear of persecution on Convention grounds. Paragraph 9(4)(a) is concerned with what a claim shows, not with the evidence to support the claim."
This was approved by Lord Justice Latham in R (Atabaky) v Secretary of State for the Home Department neutral citation: [2002] EWCA Civ 234, where his Lordship observed in paragraphs 20 and 21:
"There are no pleadings or other formal documents which can be said to constitute a claim. It must therefore be the sum total of the material put forward by the applicant for asylum to substantiate his claim.
"The Secretary of State and the Special Adjudicator are only entitled to certify under paragraph [9(4)(a)] if that information on its face fails to show either a relevant fear, or a fear for a relevant reason. But in coming to that decision, neither the Secretary of State nor the Special Adjudicator would be inhibited from certification by a mere assertion of the relevant fear or fear for a relevant reason if the material provided to support it could not conceivably do so."
Mr Gill submits that it was readily apparent, on the face of the material before the adjudicator, that the claim did show a fear of persecution for a Convention reason and that it was simply not open to the adjudicator to conclude otherwise.
He points to the arrest, detention, and ill-treatment, which was linked to his Rwandan appearance, to the expert evidence concerning the risks on return, in relation to a failed asylum seeker, and to risks arising from the whole Colonel Kabango saga, which, properly interpreted, amounted to activity in connection with a political cause of sufficient gravity to necessitate his being quickly helped out of the country, when events took a wrong turn.
On behalf of the Secretary of State, Mr Patel submits that taken at its highest the Colonel Kabango saga was not such as to give rise to a fear of persecution for a Convention reason. The claimant was simply collecting and delivering letters of unknown content. Reliance is placed on the last sentence of the passage from the judgment of Lord Justice Latham, in the extract which I have just set out.
I have no doubt that the submissions of Mr Gill on this point are correct. It may be that the adjudicator fell into the trap of considering the certification on the basis of his own findings, particularly those on credibility. Whether or not that is the case, I am satisfied that on a proper consideration of "the sum total of the material," the adjudicator erred by concluding that the claim did not show a fear of persecution for a Convention reason.
So far as the Colonel Kabango saga is concerned, the adjudicator did not interpret it in the low key manner postulated by Mr Patel. On the contrary, he said:
"According to the Appellant Colonel Kabango was involved in a very high risk strategy of intrigue designed one assumes to overthrow wholly or in part the government."
As regards paragraph 9(7), the case for the claimant is that the adjudicator nowhere addressed, in terms, the question of torture, which though the subject of a high threshold, calls for an individuated consideration. See R v Secretary of State for the Home Department, ex parte Sarbjit Singh [1999] INLR 632. Far from receiving such consideration, the adjudicator said nothing beyond, "I uphold the certificate."
However, in my judgment, whilst I accept that the adjudicator ought to have expressed himself more fully, the reality of this case is that, on any view, the evidence adduced did not establish a reasonable likelihood that the claimant had been tortured.
It follows, from what I have said, that because of my conclusion about paragraph 9(4)(a) I accept that the certification was legally flawed. However, that in itself does not dispose of this case.
It is submitted on behalf of the Secretary of State that as a matter of discretion I ought to refuse relief, because notwithstanding the facts that the flawed certification has denied the claimant access to the Immigration Appeal Tribunal, an application for leave to appeal would fail in any event. The approach to such a submission is as described by Lord Justice Latham in Atabaky at paragraph 27:
"The court has always had - and, it seems to me, unless expressly removed by statute, should always retain - a discretion in this jurisdiction in relation to the relief that it grants. That does not mean that the discretion to decline to grant relief is one which will be lightly exercised. The court will bear well in mind the consequences of failing to grant relief on the consequential rights of the applicant before it. It is only therefore in the most plain and obvious cases that it is likely that this court would decline relief to a person who might otherwise be able to avail him or herself of statutory appeal rights, such as in the present case. But it does not seem to me that there is any jurisdictional restriction on the right of this court to exercise its discretion against granting relief in appropriate cases."
The question for me, therefore, is whether this is "one of the most plain and obvious cases."
Mr Gill submits that there are three grounds upon which the Immigration Appeal Tribunal might allow an appeal from the adjudicator, namely: (1) that the adjudicator failed to consider the risk to the claimant upon return to the DRC as a failed asylum seeker; (2) that he "sidelined" the report of an expert, because he misunderstood it; and (3) that he deprived the claimant of a fair hearing by drawing inferences from the evidence which had never been put to the claimant, and in respect of which he had, or might have had, a persuasive answer. Mr Gill seeks to identify eleven points upon which the adjudicator mistreated the evidence.
In my judgment there is force in the first of these three potential grounds. Although Mr Patel, basing himself on the skeleton argument which had been placed before the adjudicator on behalf of the claimant, submits that the failed asylum seeker point was not taken before the adjudicator, I do not think that he is correct.
When the adjudicator came to summarise the submissions made to him on behalf of the claimant, he said:
"It was finally stated that if he was to return he would be returning without documents, that he was part Rwandan, and would be of interest to the government. In those circumstances he would be arrested at the airport as a failed asylum seeker, tortured and given his history of informer work treated as a traitor and killed."
This issue was also dealt with in the report of the expert Mr Kennes. I am satisfied that this issue was before the adjudicator, but that he did not address it in his determination. Turning to the second potential ground, the "sidelining" of the expert's report, I do not consider that there is anything in this. The expert, Mr Kennes, examined a number of issues in a 14-page report and expressed his conclusion thus:
"The writer of this report cannot possibly ascertain that the story told by Mr Feruzi is true. He can only state that it is plausible and some elements of it not impossible. Given the hypothesis that the facts given by Mr Feruzi are correct, there is a reasonable degree of likelihood that Mr Feruzi will be exposed to persecution or at least to cruel, inhuman and degrading treatment. The main reasons for this are the huge risks for identification with his Rwandan background and his activities on behalf of the rebellion, which equal high treason to the Congolese state."
The adjudicator clearly considered the report in some depth before saying:
"At page 14 the expert quite properly states that if the facts given by Mr Feruzi are correct then the account is plausible and some elements of it not impossible in keeping with the general features of the country at present. However as indicated above I do not accept the hypothesis that the facts given are correct and I do not find the account given to be credible."
Mr Gill takes issue with this formulation. He submits that the adjudicator fell into error, in that rather than coming to a conclusion about the claimant's evidence without taking into account the expert's opinion as to its objective plausibility, he should have taken account of that opinion of the expert in his evaluation of the claimant's evidence.
Whilst I accept Mr Gill's submission as to the correct approach, I am not persuaded that the adjudicator failed to follow it. No doubt the passage from the determination, which I have just quoted, could have been expressed more clearly. However, in my judgment, it withstands appropriate scrutiny. To require more would be to engage quite inappropriately in a form of textual exegesis of an adjudicator's determination, which would exceed what the role of this court requires.
The third potential ground is based on an assessment of the evidence, the inferences which may properly be drawn from it, and the extent to which the claimant was accorded an opportunity to deal with the way in which the adjudicator was thinking. For purposes of analysis Mr Gill seeks to advance his eleven points under the headings of irrationality and unfairness.
As he acknowledges, it is not for me to be drawn into a factual review of the adjudicator's decision. My concern is with whether the points identified by Mr Gill suggest that the claimant's potential appeal to the Immigration Appeal Tribunal might have a real prospect of success, treating that as a factor in the consideration of whether or not this is "one of the most plain and obvious cases," in which relief should be denied.
Mr Patel draws attention to the fact that the evidence which was before the adjudicator, and his findings upon it, have already been considered by the Immigration Appeal Tribunal in the claimant's human rights appeal. The Immigration Appeal Tribunal refused leave to appeal, stating:
"In the view of the Tribunal, the Adjudicator's adverse credibility findings are sound. He set out his reasoning fully and particularly... The tribunal considers that he was entitled not to accept the Applicant's claim to have been a paid informer for Colonel Kabango. His further reasoning... is also persuasive. The absence of reasoning for upholding the Secretary of State's certificate is not a matter that in any way goes to invalidate the quality of the Adjudicator's reasoning on the essential issues before him. In the light of his conclusions on the evidence, the Tribunal considers that his findings on risk on return are sound."
He submits that it is "plain and obvious" that in any asylum appeal the Immigration Appeal Tribunal would also refuse leave to appeal, and that Mr Gill's potential grounds are little more than a late and more sophisticated reformulation of the grounds considered by the Immigration Appeal Tribunal in the Human Rights Appeal.
He also relies on the Immigration Appeal Tribunal's approach, as articulated by the then President, Mr Justice Collins, in Jayachandran v Secretary of State for the Home Department [2002] UKIAT 01869, paragraph 3:
"We only interfere in findings of fact if we are persuaded that they are clearly wrong or if there is no evidence which can properly found such a finding of fact."
Where then do these submissions lead? In my judgment they lead to the conclusion that the claimant can point to an issue that was overlooked by the adjudicator, and by the Immigration Appeal Tribunal, when it dealt with the human rights appeal.
Moreover, I am not persuaded by Mr Patel's able submissions that Mr Gill's third potential ground and the eleven points are devoid of arguability, nor that they were all before the Immigration Appeal Tribunal in the human rights appeal. On any further application for leave to appeal, the Immigration Appeal Tribunal would only grant leave if satisfied that such an appeal:
"... would have a real prospect of success; or there is some other compelling reason why the appeal should be heard."
See Immigration & Asylum Appeals (Procedure) Rules 2000, rule 18(7).
I cannot discount the possibility that the Immigration Appeal Tribunal would grant leave on the "real prospect" basis. That being so, I do not consider that this is one of the "plain and obvious" cases in which, legal flaws having been identified in the certification, relief should be refused. Accordingly, I shall quash the upholding of the certificate.
Mr Gill would have me go further and quash the determination of the adjudicator as was done by the Court of Appeal in Atabaky. However, the circumstances of the present case are not the same as those in Atabaky and do not justify that form of relief. The certification having been quashed, it will be for the claimant to attempt to persuade the Immigration Appeal Tribunal to permit and allow an appeal from the adjudicator.
MR WAHEED: My Lord, there are two applications in respect of the claimant. First of all, may there be a detailed assessment of the claimant's costs under the Community Legal Service Funding Certificate?
MR JUSTICE MAURICE KAY: Yes, we have a certificate, yes, certainly.
MR WAHEED: My Lord, I am grateful. The second is an application for costs. My learned friend has alerted me to a submission he wishes to make in respect of that, and I give way to my learned friend.
MR JUSTICE MAURICE KAY: Yes, Mr Patel?
MR PATEL: My Lord, we would say that the costs be limited to the date from 1st November 2002, when the claimant for the first time put submissions as to what was wrong with the substantive determination of the adjudicator, and then got leave from Lord Justice Dyson. We say, until then this application had no prospect of success, because the claimant could not point to you that it was likely to get leave to appeal from the tribunal. So we ask that costs be limited from that date.
MR JUSTICE MAURICE KAY: Certainly the eleven points only date from that period of time. What about the failure to consider the returned asylum seeker? Does that only date from that --
MR PATEL: My Lord, all of those points date from that period, because there was a skeleton argument that was submitted for that hearing on 30th October 2002.
MR JUSTICE MAURICE KAY: The one before Lord Justice Dyson?
MR PATEL: Lord Justice Dyson, that is right.
MR JUSTICE MAURICE KAY: Soon after Lord Justice Mantell, on rather lesser material, had described it as hopeless.
MR PATEL: My Lord, yes.
MR WAHEED: My Lord, in response to that it is simply said that at the time that the argument was suggested, a paper application pointed out the substantive challenge point that my learned friend alerts my Lord to. The case of Sarbjit Singh demonstrated that a substantive application could be brought solely upon the point of certification. The substantive points in that case had been refused leave as unarguable, and my Lord will find that at page 63, and the judgment of Lord Justice Dyson at 64, paragraphs A and B.
It was only afterwards, when Atabaky had been reported as such, that the point made about the "plain and obvious" issue in respect of certification was brought to the claimant's attention, and such was relied upon subsequently thereafter by learned counsel Mr Gill.
In respect of that we would ask for our costs as of the date of the original application.
MR JUSTICE MAURICE KAY: Thank you very much. I shall award you costs, but limited to the hearing before Lord Justice Dyson and thereafter.
MR PATEL: My Lord, thank you.
MR JUSTICE MAURICE KAY: I suppose we ought to include the skeleton argument before Lord Justice Dyson and thereafter.
MR WAHEED: My Lord, I am grateful.
MR JUSTICE MAURICE KAY: Thank you both very much.