MB v The Secretary of State for the Home Department

On 8 March 2010 the Court of Appeal, on appeal from the Asylum and Immigration Tribunal, ordered by consent that the appellant’s appeal against the determination of the AIT promulgated on 26 March 2009, dismissing the appellant’s appeal against the respondent’s decision of 13 April 2004 to remove him to Trinidad and Tobago be allowed, that the determination be set aside and that the case be remitted to the Upper Tribunal for a second stage reconsideration. The Court of Appeal directed that the determination of the Upper Tribunal be limited to determining:

Whether the authorities of Trinidad and Tobago can provide sufficient protection to the appellant and

Whether the authorities can take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm in relation to the appellant and his claims at being at risk of persecution from non-state actors in Trinidad and Tobago.

Mindful of the strict limitation of the scope of the appeal that is before us as set out in the order of the Court of Appeal when remitting the matter to us, we have not considered it appropriate to raise, for the very first time, of our own volition, the matter of potential exclusion of the appellant from surrogate protection at this late stage in the proceedings. We note the nature of the appellant’s claim and his history, as well as the fact that his unsuccessful claim to asylum in the UK was made in 2004, his appeal against that decision dismissed, but his subsequent appeal to the Court of Appeal was successful and that his case now comes before us in 2010 without there ever having been any question raised at any stage as to whether he should be excluded from surrogate international protection. We have proceeded on the basis that this was because he has always claimed that his involvement with JAM was not voluntary and because he left JAM in difficult circumstances at a key moment in the course of the 1990 coup. We summarise below the appellant’s case and the findings of fact of Immigration Judge Talbot.

The appellant, whose stated date of birth is 3 November 1964, sought asylum on 3 April 2004, claiming that he was a national of Trinidad and Tobago and that he had arrived in the United Kingdom on 21 December 2002. His claim to asylum was made on the basis that in 1987 he had been forced to become a member of the Muslim group Jaamat al Muslimeen (JAM), and that he feared persecution and ill treatment from members of JAM having disobeyed the orders of their leader, Yasin Abu Bakr to assist in the attempted coup mounted by JAM against the government of Trinidad and Tobago in July 1990. Following the attempted coup the appellant fled to the USA arriving in New York in November 1990. About a year after his arrival he applied for asylum in the USA; but the application did not proceed to a final determination, and was eventually withdrawn by him before his return to Trinidad and Tobago in March 2000. He then remained in Trinidad and Tobago for two years before travelling to the United Kingdom.

Although there were some aspects of the appellant’s history in relation to which the Immigration Judge was not satisfied that he had been given a full or adequate account, he made a number of material findings of fact. First he made the general finding that he accepted substantial elements of the appellant’s account given the extent of the detail provided by him, and its consistency with the extensive background material before him.

Secondly he accepted the details given by the appellant as to his background and family. The appellant was one of ten children. One of his sisters became involved in a relationship with Abu Bakr, and as a result the appellant was often in his company. Abu Bakr subsequently became the leader of JAM in Trinidad. Another of the appellant’s sisters, J, became involved with a man called Trevor, one of Abu Bakr’s followers. A third sister, A, was married to another of Abu Bakr’s followers.

The Immigration Judge found that the appellant joined JAM in the 1980’s and converted to the Muslim religion as part of the process of joining. He also found that the appellant “took part in various unlawful activities with the Jaamat including the transportation of illegal weapons and drugs and the murder of a man who was deemed to be an enemy of the Jaamat.” As to his role in the attempted coup, the appellant’s evidence was that he had been instructed to use his lorry, the lorry that he drove as a result of employment obtained for him by Abu Bakr, to pick up armed members of JAM and drive them into the police compound where the attempt to overturn the government would begin. He said that it was on the evening before the coup, that he decided not to go through with the plan, and went to ground. The Immigration Judge accepted that the appellant had been given a part to play by Abu Bakr, and continued:

At paragraphs 49 – 52 the Immigration Judge made what he described as ‘Overall Findings’. Paragraph 50 is in the following terms:

But the Immigration Judge then went on to consider the evidence as to the period of two years during which the appellant had lived in Trinidad on his return from the United States, working as an estate constable for the police. Whilst accepting that the appellant had been shot at by men whom he believed to be associated with JAM, he considered that the appellant had failed to take serious steps to avail himself of state protection. The appellant had given evidence that he had gone to a police station with the intention of reporting the incident, but that the duty officer was a man whom he believed to be associated with JAM, and he did not therefore identify the men who had shot at him as JAM members. The Immigration Judge expressed the view that it was possible that the appellant’s reluctance to seek police assistance was partly or substantially motivated by concern as to the consequences of disclosing to them his own past association with the Jamaat and involvement in criminal activities, and went on to conclude that the fact that he had been able to live a relatively normal life for a period of two years suggested that both the risk and the level of interest by Jaamat might be relatively limited.

He concluded at paragraph 53 of the determination that:

The Immigration Judge had before him an expert report from Professor Andrew Silke. We have had the benefit of a supplementary report in which Professor Silke addressed the specific issue of the ability and willingness of the Trinidad and Tobago authorities to protect the appellant. We also heard evidence from Professor Silke. At paragraphs 34 – 43 of the determination the Immigration Judge provided a summary of the country material and the report from Professor Silke:

Jaamat al-Muslimeen is described in an article from the issue of ‘Terrorism Monitor’ (21.6.07) as follows:

The involvement of Jaamat in the coup attempt in 1990 is extensively documented. It appears that the Prime Minister and most of his cabinet were taken hostage and for five days the capital was plunged into violence and disarray. Eventually, Jaamat was persuaded to surrender after a period of negotiations and the promise of some form of amnesty. However, the terms and validity of the amnesty were contentious and the government pursued legal action against Abu Bakr and other Jaamat members. This has become a long-running saga. A report from the Immigration & Refugee Board of Canada states (p.77 of bundle): ‘Although Trinidadian government lawyers argued that the pardons were invalid because they were given under duress, the Privy Council in London upheld the legal status of the pardons in December 1991 … In July 1992 the Court of Appeal upheld the government amnesty given during the crisis and all 114 Jaamat members jailed since the coup were released.’

The violent and ruthless nature of the group under the leadership of Abu Bakr is very apparent and this ruthlessness clearly extends to treatment of its own members or former members. Professor Silke states that ‘cases of former members being attacked by the movement are reported relatively regularly in the media’ and there is indeed reference to a number of such cases in the reports and newspaper articles before me.

The background materials also focus on the nature of the legal and judicial system in Trinidad which is relevant to the issue of its ability to protect its citizens from groups such as the Jaamat. The report from the International Commission of Jurists on the legal and judicial system in Trinidad is headed ‘Attacks on Justice ‘ Trinidad & Tobago’ and states in its opening section: ‘Judicial independence is entrenched in the constitution and safeguarded in law and in practice … The areas of concern remain the heavy workload of judges, poor conditions of detention and lack of effective access to justice for the most impoverished sectors of the community …’

A 2008 Amnesty International report on Trinidad refers to a parliamentary report which was highly critical of the police service, highlighting ‘the persistent failure by police officers to appear in courts as complainants or witnesses leading to many cases being dismissed. The report noted a disturbingly high number of disciplinary charges against officers and the need to combat increased levels of indiscipline within the police service. The report also spoke of a serious lack of accountability from top to bottom in the force.’ On the justice system, the report stated: ‘The Justice Protection Programme to protect witnesses was widely criticised with many witnesses reportedly declining to give evidence at the last moment because of threats.’

A 2008 report on Trinidad from ‘Freedom House’ refers to similar problems.

A BBC report dated 4.12.06 headed ‘Abu Bakr Freed’ illustrates the difficulties of obtaining convictions. It describes the end of the trial of Abu Bakr for conspiracy to murder, in which the jury was directed by the judge to bring in a not-guilty verdict. The reasons given by the judge were that the evidence given by the state’s main witness was weak, manifestly unreliable and disintegrated under cross-examination.

An article in Terrorism Monitor of 9.3.06 refers to perceptions of Abu Bakr’s untouchability but suggests that the authorities’ are beginning to act in a more determined way.

At paragraph 34 the Immigration Judge described Professor Silke’s first report as “well researched and sourced”, and said that it “seeks to present a balanced view based on his information about the appellant, his background knowledge of terrorist organisations and more specific background sources consulted by him in the preparation of his report.” Having heard evidence from Professor Silke that is a view with which we are in full agreement.

In his supplementary report, which was dated 25 October 2010, Professor Silke drew attention to the murder rate in Trinidad and Tobago, which has risen from 118 in 2000 to 506 in 2009, and which now represents one of the highest national murder rates in the world currently standing at 41.03 murders per 100,000 people. In comparison the murder rate in England and Wales is 1.49 murders per 100,000 people. The current police statistics indicate that the murder rate in Trinidad and Tobago will either be the same or slightly higher in 2010. Detection and conviction rates appear to be extremely low. The crisis in policing in Trinidad and Tobago is well recognised. In July 2009 Acting Commissioner of Police, James Filbert, acknowledged that the Police Service owed the nation an apology for the poor quality of policing experienced by some sectors of society over the years. Professor Silke observes that the exact causes of the crisis are unclear, although a variety of factors are believed to play a role, in particular under-manning, poor training and systemic corruption. Whilst a reform process has been introduced since 2006, which has involved inter alia the supplementing of the police force with officers from the UK and from Canada (in September 2010 Senior Canadian officers were appointed Commissioner and Assistant Commissioner, the two most senior positions in the police force), to date the measures taken to improve the situation do not appear to have had a significant positive impact.

Professor Silke also drew attention to the particular problems faced by the authorities in providing effective protection for witnesses in criminal cases. As he observes, an observation based upon a number of examples derived from authoritative sources, “state witnesses are shot dead every year while others simply disappear. The circumstances behind the killings vary. In the past year, witnesses have been murdered at their own homes, while others have been killed in and around the court buildings while being escorted by police officers.” Mrs Tanner, the Home Office presenting officer, made the point that the appellant is neither a witness, nor likely to become one, arguing that the apparent inability of the state to afford protection to witnesses is therefore not of relevance to the instant case. But as Miss Benitez submitted in response, the fact that the State is unable to provide effective protection for those under a witness protection scheme, adds considerable weight to the argument that the state would not be able to give adequate protection to an individual at risk, but not within such a scheme.

The respondent introduced in evidence a letter from the Foreign and Commonwealth Office dated 6 October 2010 and headed “Trinidad and Tobago Legal System – Sufficiency of Protection”. The letter is terse, consisting of three short paragraphs. The relevant paragraph, paragraph 3, is in the following terms:

There can be no doubt as to the willingness of the authorities in Trinidad and Tobago to operate an effective system for the detection, prosecution and punishment of acts constituting persecution or serious harm of its citizens. The issue is the adequacy of such protection (see e.g. IM (Sufficiency of protection) Malawi [2007] UKAIT 00071). Mrs Tanner readily acknowledged the deficiencies in the system, but argued that the appellant would not have a profile likely to attract the attention of JAM given that he has been away from Trinidad for 18 of the past 20 years, and had lived there for a period of 2 years immediately prior to his entry to the United Kingdom. She therefore argued that any risk to which he is subject is that of the population at large.

But that submission fails to take account of the express finding by the Immigration Judge, preserved before us, that the appellant would be at risk of violence from JAM given his previous involvement with that organisation, the fact that he was pressured to join them in the first place and then left suddenly, just before the attempted coup. Whilst a considerable period has elapsed since that abortive coup in 1990 and the appellant’s subsequent flight from Trinidad, the aftermath of the coup continues to resonate. As the Immigration Judge noted at paragraph of 37 of the determination:

In his first report Professor Silke concluded that the appellant’s fear that he would be targeted by JAM members (either directly or indirectly) if he returned to Trinidad was credible and realistic. He concluded his supplementary report by saying:

In the light of that conclusion, based as we are satisfied that it is, on a careful and comprehensive analysis of the country material produced by both parties, in the light of the findings of fact made by the Immigration Judge and of the limited ambit of the task as given to us by the Court of Appeal, we are satisfied to the requisite standard of proof that the appellant has shown a well founded fear of persecution by reason of his political opinion, actual and/or imputed, through his anti-JAM stance and his pro-government activity, in particular as a precepted estate constable, that being the work he performed during the 2 year period prior to his arrival in the UK, were he to be returned to Trinidad and Tobago now, and secondly that there would be an insufficiency of protection were that to happen. It follows that in our judgment he is entitled to international protection in the form of refugee status under the 1951 Refugee Convention and to protection on human rights grounds under article 3 ECHR.

The Immigration Judge materially erred in law and his decision has been set aside. The decision we re-make is to allow the appellant’s appeal.