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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2002] EWCA Civ 1911

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Neutral Citation Number: [2002] EWCA Civ 1911

(Mr Justice Maurice Kay)

Royal Courts of Justice
London WC2
Friday, 13th December 2002

B e f o r e :


on the application of Omar MOHAMMED
Interested Party


Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)


The Appellant Mr Omar Mohammed appeared in person (assisted by a friend, Mr R Brittan).
Mr R Palmer (instructed by the Treasury Solicitor, London SW1) appeared on behalf of the Respondent.



Crown Copyright ©


  1. This is an application by Omar Mohammed for permission to appeal against a decision of Mr Justice Maurice Kay, sitting in the Administrative Court on 2nd October 2002, to refuse him permission to apply for judicial review of a decision by the Immigration Appeal Tribunal on 11th July 2002, when that tribunal refused him permission to appeal against a decision of a special adjudicator promulgated on 28th May 2002. The special adjudicator had dismissed Mr Omar Mohammed's appeal against a decision made on behalf of the Secretary of State to refuse him asylum. He had arrived in this country on a forged passport on 1st November 2001 from Nigeria.
  2. The sole grounds of appeal against the decision of Mr Justice Maurice Kay were that the adjudicator failed to take into account the medical report in his decision on Mr Omar Mohammed's appeal and that this was not reviewed by the tribunal. The medical report is said to validate the appellant's claim that he was stabbed multiple times in Nigeria.
  3. At the oral hearing of this application a friend of the appellant, who has visited him in Campsfield Detention Centre, has been good enough to come up to London to help him present his application orally and he has made submissions which go a good deal further than the grounds of appeal.
  4. The hearing of his appeal before the special adjudicator took place in Birmingham on 13th May 2002. The appellant claimed that his removal from the United Kingdom would breach this country's obligations under the 1951 Geneva Convention and his rights under the Human Rights Act. He appeared with the assistance of counsel. The adjudicator said that he took into account the statements which the appellant made, a skeleton argument, a bundle of material on Nigeria prepared by various international agencies, a letter from Campsfield and a medical note with a report from a Dr Huckstep. He said that he had also read and taken into account the interview notes from the Home Office.
  5. The adjudicator set out the history of the matter, as told to him by the appellant, in paragraphs 17 to 28 of his determination. He recorded the respondent's reasons for refusal, which were set out in paragraph 29 of his determination. He set out the grounds of appeal and gave a summary of the background material. He then summarised the effect of the appellant's evidence in paragraphs 33 to 42 of his determination. It culminated with a reference to the effect of the medical reports, the account that he had given to the authorities at Campsfield and his fear that he would not be safe anywhere in Nigeria because the fundamentalist Muslims would find him anywhere.
  6. In part of his evidence he said that he had been forced to be a Muslim by his strict religious father. He felt that Christianity was better because the Bible, in Genesis, told that Christ was born on a particular day. Muslims believed that the Prophet Mohammed was God.
  7. In paragraphs 43 to 47 the adjudicator made findings of fact and credibility. Each of these findings has been challenged during the course of the oral submissions I have received. The adjudicator came to two conclusions on the Geneva Convention aspect of the claim. He said that even if he had been attacked by random militant Muslims, which he did not accept, the appellant was not without the protection of the State as nothing in the objective evidence suggested that sectarian violence was condoned. He then made the further finding that the appellant would not be in danger if he removed to another part of the country and it would not be unreasonable to expect him to do this.
  8. Parliament has set up a system of appeals in these asylum claims which depends on the experience and wisdom of the adjudicators who are appointed for this task. Adjudicators necessarily have varying degrees of experience of the issues which arise in appeals from different countries. This adjudicator found, after considering what the appellant had to tell him and the other documents he had read, that the appellant was not a reliable witness of truth but was prepared to use lies when it suited him. He did not accept that the appellant was a Christian as he claimed, having a superficial knowledge of the beliefs of Christians and being entirely wrong about the birth of Christ. He appeared to have little knowledge of Islam either, saying that he had been taught that Mohammed was God, which was surprising if he had been brought up a strict Muslim since the age of five.
  9. Those conclusions are challenged. It was said that at a subsequent hearing the chaplain at Campsfield Detention Centre had vouched for him and that the adjudicator failed to take into account the possible different beliefs in relation to both Christianity and Islam which might be prevalent in parts of Africa. That was the first general ground of challenge.
  10. The second general ground of challenge was that the adjudicator rejected the appellant's explanation that he intended to apply for asylum once he had entered, as it was his purported intention to claim asylum, but that he had maintained a complicated false story to the immigration officer in an attempt to enter the United Kingdom by deception. It has been pointed out today, as is extremely well known in this field, that most people coming to this country who maintain that they are seeking asylum because of the way they are treated arrive with forged documents. It is said that the adjudicator was wrong to hold against the appellant, not merely that he arrived with forged documents, but that he persisted with his false account to the immigration officer.
  11. The third ground of challenge related to paragraph 45, where it was said that he had given inconsistent dates and accounts of his being attacked; that his evidence was not reliable, and that no explanation was advanced for the discrepancies. The adjudicator said that he did not explain why he remained in the same country and district after the assault which left him seriously injured, his mother murdered and his home destroyed by fire, but had returned to live with his father, even though the family was threatened with death for harbouring a Christian. It is said that it is not easy to leave an African country; that people get out as soon as they can, and he had no option but to behave in the way that he did.
  12. Next, the adjudicator found that he gave accounts of significant discrepancy on the timing of the attacks and the injuries sustained which rendered the rest of his evidence unreliable. The extent of the injuries and the resulting disabilities were exaggerated. There was no sign of the appellant losing his voice after giving evidence for over an hour. It is said about that that anybody can get their dates and times mixed up, particularly if the events in question arose some time ago. No particular comment was made on the adjudicator's observation of the appellant who gave evidence to him that there was no sign of his losing his voice after giving evidence for over an hour, in contrast to what was recorded in the medical report.
  13. Finally, the adjudicator said that he was not persuaded that the appellant had given reliable evidence on any aspect of his claim and he could not be satisfied, even on the low level of proof required, that any part of his account is or may be truthful. He reached the two different conclusions on the asylum appeal to which I have already referred. In relation to this it is said that the adjudicator wholly failed to take into account elementary matters which are set out in the UNHCR handbook which are regularly taken into account by adjudicators in matters of this kind. It is said that the adjudicator must have committed a vast exaggeration when he said that he was not persuaded that the appellant had given reliable evidence on any aspect of his claim.
  14. That was the adjudicator's decision. He came to the conclusion, in paragraph 49 of his determination, that the appellant had not satisfied him on the evidence, even to the lower standard of proof, that, as a Christian, he was a member of a social group; nor did he have a well-founded fear of persecution for a Convention reason. He did not find that the appellant was being persecuted by a Convention actor, a State agent or a person whose actions were condoned by the State. The men who attacked him, if this thing happened, were not motivated by a Convention reason but by religious fervour of their own. The adjudicator went on to find that the decision appealed against would not cause the United Kingdom to be in breach of the Human Rights Act if he were to be returned to Nigeria.
  15. That was the decision of the special adjudicator. On the submissions which I have received today, it would appear that the challenge is sought to be mounted on the basis that the adjudicator neglected every elementary principle of adjudication in these asylum cases. One by one extremely familiar grounds of challenge were advanced to me - grounds of challenge to which I myself have often referred in my own judgments. It is submitted that the adjudicator was completely hopeless in carrying out the task which Parliament has entrusted to him of assessing the credibility of the appellant.
  16. The appellant sought permission to appeal to the Immigration Appeal Tribunal. He said in his application, which was settled by solicitors, that he gave a credible account, backed by his doctor's evidence; that the adjudicator was not a medical expert and was not entitled to his conclusion. He sought permission to adduce evidence that his parents were targeted, his home was burnt down and his mother was killed. He sought permission to demonstrate that he was wanted in Nigeria and his family was targeted. The adjudicator failed to take into account the evidence of the appellant's Christian activities. The adjudicator did not understand the appellant's explanation regarding the citing of Genesis and the manner in which the Muslim fundamentalists perceive Mohammed. In general, it was an application to adduce further evidence which was not placed before the adjudicator, who heard the appeal nearly five months after asylum was refused.
  17. That application for permission to appeal went before Mr Rapinet, a Vice-President of the Immigration Appeal Tribunal. Needless to say, the judges of that tribunal themselves have great experience of the issues which arise in this type of case. Mr Rapinet refused the application. He said:
  18. "The Adjudicator has rejected the core of the applicant's claim for perfectly valid reasons set out in the determination. A Tribunal will not lightly set aside an Adjudicator's findings of fact where oral evidence has been given. The grounds amount to no more than a disagreement with the determination. No indication has been given of the relevance of any additional material nor as to the nature of that evidence."

    Permission was refused because there was no likelihood of an appeal succeeding were permission to be granted. It is that decision of the Vice-President of the Immigration Appeal Tribunal which is challenged in these judicial review proceedings.

  19. The matter first became before Mr Justice Hooper, who has great experience in administrative law matters and of asylum claims. He refused permission to appeal on paper, saying:
  20. "The decision of the IAT refusing leave to appeal is not arguably perverse. Given the findings made by the Adjudicator starting at paragraph 43, no appeal to the Immigration Appeal Tribunal could possibly succeed."
  21. Not daunted by that refusal by a High Court judge, the appellant renewed his application for permission to apply for judicial review in open court before Mr Justice Maurice Kay, who is now the judge in charge of the Administrative Court. That judge set out the history of the matter and recorded the tribunal's decision. He commented, in relation to the observation that the grounds amounted to no more than a disagreement with the determination, that that was undoubtedly a fair and proper decision upon the application for leave to appeal.
  22. That was the decision of the Administrative Court. In seeking permission to appeal to the Court of Appeal the appellant would have to demonstrate that in the appeal he had a real prospect of successfully showing that Mr Justice Maurice Kay was wrong in the way that he handled it.
  23. The matter came before Lord Justice Laws on paper on 11th October 2002. Lord Justice Laws has huge experience of immigration and asylum matters. He said that, although he had not seen a transcript of Mr Justice Maurice Kay's judgment, it was plain that:
  24. "There is nothing in this case. The only ground of appeal put forward is that the adjudicator did not consider the medical report. But he plainly did."

    He then quoted the paragraphs of the determination in which he referred to it. It may be as a result of Lord Justice Laws' observation that those grounds of appeal, which were the only grounds of appeal to this Court on the Court's papers, were abandoned and instead there was the wide-ranging challenge to the professionalism of the adjudicator as a specialist asylum judge which I heard today.

  25. This is not an appeal on fact. At the heart of this litigation there is an application to apply for judicial review of the Immigration Appeal Tribunal's decision to refuse permission to appeal and, as Mr Justice Maurice Kay and Mr Justice Hooper pointed out, that application could not succeed unless judges in the Administrative Court considered that, in refusing permission to appeal, the Immigration Appeal Tribunal was plainly wrong or had neglected principles of law that they should have taken into account or had acted perversely in some other way. I cannot see any evidence of this in the material placed before me.
  26. I have considered carefully the submissions made by Mr Omar Mohammed's lay advocate, but in my judgment there is nothing in them which could possibly justify this Court in granting permission to appeal. This application is therefore refused.
  27. I received an application that I should somehow or other stay the deportation of Mr Omar Mohammed, which is due to take place tomorrow, on the basis that there was some unspecified medical and other evidence which the Home Secretary might wish to take into account if he had the opportunity to do so. I have noted what the Immigration Appeal Tribunal had to say about the suggestion that there was further evidence available as long ago as July of this year. I can see no reason for taking any steps, even if I had power to do so, to stay the Secretary of State's deportation arrangements.
  28. Order: application for permission to appeal dismissed.

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