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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ramirez v Secretary Of State For Home Department  EWCA Civ 1365 (21 August 2001)
Cite as:  EWCA Civ 1365,  Imm AR 240
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
London WC2A 2LL
Tuesday 21 August 2001
B e f o r e :
LORD JUSTICE ROBERT WALKER
LORD JUSTICE SEDLEY
|FELIPE JIMINEZ RAMIREZ|
|- v -|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
MISS J RICHARDS (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent
Crown Copyright ©
"The question really is whether the effects of the paramilitaries and what they did in Colombia could be classified as torture. This means treatment having a serious mental or physical effect upon the individual."
"The issue is whether events in Colombia caused the problems and if so it is then straightforward to say he has a well-founded fear of persecution."
"For the reasons given by the Adjudicator and explored in the preceding paragraphs of this determination, the Appellant has not established that he is a refugee."
"We asked Mr Slevin to address us on the Convention reason for the Appellant's claimed fear. He pointed us to the Appellant's mother's statement. We have to say that in our view there is not, there or in any other part of the evidence, any reason to suppose that, in the general lawlessness of Colombia, the difficulties suffered by the Appellant's family were persecution for a Convention reason. There would, we think, be no evidential base for a conclusion that the Appellant was a refugee in 1991 even if that were relevant."
"1. There is a degree of urgency yet the additional evidence and its nature has not yet been identified.
2. The application raises difficult questions relating to (a) the treatment of applications for asylum by persons suffering from mental illness (b) the interelation of claims for refugee status and claims in relation to potential breaches of the Human Rights Act (c) the relevance of procedural time bars to persons having such claims."
(a) The special adjudicator's decision was so flawed that it should have been set aside without more.
(b) The decision was, in any event, vitiated by the failure to let the applicant attend and be heard, or at least to ascertain when he would be available.
(c)There was, or now is, evidence of well-founded fear on the applicant's part of persecution for a Convention reason which, in the nature of things, has not been adequately addressed either by the special adjudicator or the IAT.
(d) Irrespective of the Geneva Convention, to return the applicant to Colombia would violate his right to life under Article 2 of the European Convention on Human Rights and his right not to be subjected to inhuman or degrading treatment under Article 3.
(e) Time should be enlarged and fresh evidence admitted to enable justice to be done.
(a) While I agree that the special adjudicator's decision was quite seriously flawed in the sense that it does not simply contain errors but betrays a wrong approach to at least two central issues, I do not agree that a new hearing was the IAT's only option. It was only if the ground to which I shall turn next, adjournment, was a sound ground that this might have been the case. Even then there might have been, in this particular case, no point in remission, if there could only be on the evidence a negative answer to the critical question whether a Convention reason for the feared persecution had been established.
(b) The second ground relates to the refusal of an adjournment. As the IAT point out, the procedure rules expressly permit a hearing to proceed in the absence of an appellant who is suffering from mental disorder, although they also treat professional representation as negativing absence, as in this case.
(c) It is conceded by Mr Owusu that if he is to make good the major lacuna in the applicant's case, the Convention reason, he needs not only permission to appeal out of time but permission to adduce further evidence of the situation in Colombia. I do not think he is entitled to this.
"14. The Appellant now seeks to raise arguments based upon the contention that the removal to Colombia would breach various Convention rights (Articles, 2, 3, 8 and 14). He cannot, however, raise those arguments within the framework of his existing asylum appeal. S65 of the Immigration and Asylum Act 1999, which creates a statutory right of appeal on human rights grounds to the Immigration Appellate Authority, does not apply in respect of decisions of the Secretary of State taken prior to 2 October 2000; see the Immigration and Asylum Act 1999 (Commencement No 6 Transitional and Consequential Provisions) Order 2000 SI 2000/2444, schedule 2 para 1(7) of the 1999 Act and the decision of the Immigration Appeal Tribunal (chaired by Mr Justice Collins) in Pardeepan v Secretary of State for the Home Department dated 6 October 2000 ('The result of the Commencement Order and the provisions which we have just cited seems to us clear beyond doubt. They prevent the Tribunal from considering human rights issues in any existing appeal, because sub-section 3 of Section 65 cannot be relied on in relation to decisions made before 2 October 2000').
15. However, in Pardeepan the SSHD indicated that those whose appeals were refused on asylum grounds could raise before the SSHD human rights objections to removal. Those objections will fall to be considered by the SSHD and if dissatisfied the individual may then be able to exercise a statutory right of appeal under s65 to the Immigration Appellate Authority.
16. If the Appellant wishes to argue that his removal to Colombia would breach his Convention rights because (for example) he will not be able to get medical treatment for his condition in Colombia or because he may be separated from his family, the correct course is for him to set out those objections in writing to the SSHD. If the SSHD does not accept that removal would breach the Appellant's Convention rights, then the Appellant may be able to appeal to the IAA under s65 of the Act, if he falls within the terms of the Pardeepan assurance, or may be able to challenge the decision of the SSHD by way of judicial review."