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Cite as: [2004] EWCA Civ 804

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Neutral Citation Number: [2004] EWCA Civ 804
Case No: C1/2003/2402

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice
Strand,
London, WC2A 2LL
30th June 2004

B e f o r e :

THE RIGHT HONOURABLE LORD JUSTICE JUDGE
THE RIGHT HONOURABLE LORD JUSTICE TUCKEY
and
THE RIGHT HONOURABLE LORD JUSTICE KAY

____________________

LD (Algeria)

- and -

Secretary of State for the Home Department

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

R. Singh QC and E. Fripp (instructed by Wilson &Co) for the Appellant
A. Hunter (instructed by Treasury Solicitor) for the Respondent

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright

    Lord Justice Judge:

  1. This is the judgment of the Court.

  2. LD (Algeria) (the appellant) was born in March 1972. He is a national of Algeria. He arrived in the United Kingdom on 1st September 1995, entering as a visitor with leave to remain for 6 months. On 30th October he claimed asylum. This claim was refused by the Secretary of State for the Home Department (SSHD) on 14th August 1996. He appealed to an adjudicator, who, after a hearing on 17th December 1997, found that he was not at any relevant risk and dismissed his appeal in a decision promulgated on 18th May 1998 (the first adjudication). An application to appeal further to the IAT was rejected on 30th June 1998.

  3. The appellant did not leave the United Kingdom, and as far as we are aware, no steps were taken to remove him before 2nd October 2000, when the Human Rights Act 1998 came into effect. Thereafter he made a further application, in effect arguing that his removal from the United Kingdom would contravene his rights under the 1998 Act, and in particular those arising under Articles 2, 3, 5 and 8 of the ECHR. This application was rejected by the SSHD, by letter dated 19th September 2001. His subsequent appeal (the second adjudication) was upheld. The determination was promulgated on 28th October 2002. The SSHD was granted permission to appeal to the IAT. This appeal was allowed by a determination promulgated on 9th September 2003.

  4. This is an appeal, with permission of the single Lord Justice, from the determination of the IAT dated 9th September 2003.

    The first adjudication

  5. The grounds of appeal from the August 1996 refusal were prepared by legal representatives. Some three weeks before the hearing before the first adjudicator, due to non-payment of their fees, the legal representatives withdrew. At the hearing the appellant requested permission to represent himself. The first adjudicator agreed to his request. The appellant gave oral evidence in support of his claim.

  6. He described an attack on him in early 1995, in which he was beaten up by a group of 5 or 6 students at the university. He was being punished for the "crime" of having defended the use of the French language at the university and organising a petition to have it re-instated in the faculty of economics. After beating him, his assailants warned him that if he continued these activities he would be killed. He took these threats seriously, and complained directly to the police. Their response was that the affair should be dealt with internally at the university. Accordingly, he returned to his village. A group was formed to provide him with protection. Nevertheless he received a series of anonymous telephone calls threatening his family, which was frightened by the threats and told him that he should leave. And that is what he did.

  7. The appellant told the first adjudicator that if he returned to Algeria his life would be in constant danger. He would only survive for a short period. The authorities would be looking for him and he would be targeted and killed. He explained that simply by being an intellectual, he was disobeying the government and Islamist fundamentalists. He was pleading for the right to free expression, and to use several languages including his own Berber language as well as French. However, by doing so he had become a target for terrorists. He said that he had been told that he was a mischief-maker, defying the Koran and God, and he deserved to die. If he did not leave Algeria, or cease his intellectual activities, he would end up dead. He said that he would prefer to die physically rather than intellectually.

  8. The appellant submitted and relied upon a statement attacking the Home Office refusal letter. In essence, he complained that there was no understanding of the realities in Algeria, in which innocent people were being massacred. He also said that he had further documents which would demonstrate that individuals using French in Algeria were being charged with criminal offences. The only official language was Arabic, and as a Berber activist, he was under threat. However he did not disagree that shortly before he left Algeria, a Commission for Berber affairs had been created by the Algerian government.

  9. We can take the essential conclusions directly from the written determination by the first adjudicator, Ms S. Beg.

    "I have not found the appellant entirely credible. I accept that the appellant is committed to the reinstatement of the French language in Algeria, and in particular in the Faculty of Economics of the University of Tizi Ouzou.
    The assault of the Appellant at the University in 1995 was carried out by fellow students. Whilst the appellant said that he reported it to the Police, he did not take up the matter to any great degree with the University or assist them in tracking down his assailants. The Appellant's attackers cannot be described as "Agents of Persecution" since the Authorities in Algeria would not knowingly tolerate them or refuse to prove unable to offer effective protection. The Country Information contained in the file refers to action taken against Islamists by the Authorities.
    The Appellant left the University and clearly abandoned his campaign for the reinstatement of the French Language at the University. I find that the Appellant could have availed himself of the protection of the Algerian Authorities with regard to the further threat that received once he went home to his family. I find that the Appellant was neither sought nor targeted as he claims. I find that he made no effort to go and live in another part of Algeria or change his telephone number. The Appellant said in cross-examination that his brother was beaten up in 1980 for supporting the Berber people. However, the Appellant accepted that after 1980 there was an improvement and did not disagree with the Respondent's assertion that in May 1995 the Algerian government created a High Commission for Berber Affairs.
    I find that the Appellant provided no documentary evidence to support his assertion that the Consulates of France, Spain and Italy did not issue Visas or if they did, it was certain periods in the academic year. The Appellant gave that as the reason for his delay in leaving Algeria and for obtaining a British Visa from the British Consulate in Tunis. I accept the Respondent's view that in British diplomatic world the issue of visas is not limited to specific times of the year.
    Prior to coming into the United Kingdom, the Appellant had travelled to France, Spain and South Africa. I find that the Appellant's explanation as to why he did not claim Asylum on arrival into the United Kingdom implausible. The Appellant said his life was quite normal before the assault at University.
    I find that the Appellant does not have a well-founded fear of persecution for a Convention reason. I further find that the decisions of the Respondent have been in accordance with the law and the Immigration Rules."

    The first appeal to the Immigration Appeal Tribunal (IAT)

  10. Grounds of appeal to the IAT were served. Legal representatives were once more employed on the appellant's behalf. The grounds for the proposed appeal included no relevant complaint about the procedure before the first adjudicator, and made nothing of the appellant's possible inability adequately to represent himself. In essence the first adjudicator's adverse findings about the appellant's credibility, particularly in relation to his failure to pursue his complaint to the police, and the university authorities, were criticised. The application for leave to appeal was refused. The determination reads:

    "The special adjudicator heard oral evidence from the applicant, whom she assessed as not credible on matters at the heart of his claim; the applicant had every opportunity at the hearing to reply to the submissions going to credibility made on behalf of the respondent. It is only rarely that a tribunal will interfere with findings of primary fact by a special adjudicator, and there is no basis for doing so in this case.
    The special adjudicator appears to have considered all the evidence before her she properly directed herself as to the correct standard of proof and applied it. The tribunal considers that the conclusions of the special adjudicator are fully supported by the evidence. Read as a whole the determination is a full, fair and reasoned review of the applicant's case. There is no misdirection in law "
  11. There was some dispute before us about the true effect of the adjudicator's adverse conclusion about the appellant's credibility. Certainly, she did not say that she disbelieved his evidence in its entirety. Equally however, as her subsequent findings demonstrate, she did not believe significant parts of the case he was supporting in evidence. In our view the determination is clear enough. The adjudicator indicated those parts of the evidence which she accepted, and those which she rejected. She neither believed nor rejected it in its entirety, but she rejected the essential foundations for the claim.

  12. The appropriate forum for an appeal against this decision was the IAT. That of itself demonstrates beyond argument that the later, second adjudication was not and could not be an appeal from the first adjudicator.

  13. During the first adjudication, the ECHR was not engaged. The question for decision was whether, if returned to Algeria, the appellant would have a well-founded fear of persecution for a Convention reason. As already indicated, the basis of his first claim was that his life would be in danger and that he would be at risk of serious violence if he were returned. In ordinary language that is not remote from torture, or inhuman or degrading ill-treatment or punishment. As Auld LJ explained in R (Bagdanacius) v SSHD [2003] EWCA Civ 1605, there is a

    "broad symmetry between the asylum test of a well-founded fear of persecution for an Asylum Convention reason and the Article 3 test of a real risk of exposure to ill treatment that it proscribes"

    Although "symmetry" will not invariably arise (Chahal v United Kingdom 23 EHRR 413), in this case there was a clear factual overlap between the rights protected under the Convention and the fears on which the claim for asylum was based. They were however under examination at different times, and at the risk of stating the obvious, the failure of the first application for asylum did not preclude a second and successful application under the Human Rights Act when it came into force.

    The human rights claim

  14. The appellant was entitled to and did take advantage of the opportunity to make a further application. In doing so, he was taking a course followed by many others before him. In Devaseelan v SSHD [2003] Imm AR 1 leave to appeal to the IAT was granted because the case raised "several important issues including to what extent an adjudicator in an appeal based solely on human rights grounds should rely on findings made in a previous determination dealing with an asylum claim". The IAT, in a starred determination, directly addressed the issue on which leave was granted, and provided guidelines for adjudicators. Later in this judgment we shall have to consider the legitimacy of this guidance and whether it is correct.

  15. The human rights claim was set out in a solicitor's letter dated 14th June 2001. It is unnecessary to recite the contents of the letter, or the reasons why the SSHD rejected the application.

    The second adjudication

  16. The second appeal was based on lengthy material. Three main alternative grounds were identified. First, as a failed asylum seeker, the appellant was at "real risk". The authorities in Algeria would wish to question him about any possible links he might have with armed Islamic Fundamentalist opposition overseas, and to decide whether he could provide any information about the networks of Islamic Fundamentalist terrorist activity in the UK. This would lead to a risk of arbitrary detention, contrary to Article 5, and a risk of prohibited ill-treatment during detention, which would violate Article 3. Second, he was at risk of detention and interrogation on his return to Algeria because of his in-country activity as a Berber activist. It was reasonably likely that he would be subjected to physical force during the process of detention and interrogation, violating Articles 5 and 3. Third, there was a real likelihood of ill-treatment by armed Islamic Fundamentalists on account of his earlier commitment to the French language, and his continuing current commitment to what was described as "the Berber cause". This would contravene Article 3.

  17. The first and second grounds represented a completely new basis of the claim, which was not before the first adjudicator. The threat to the appellant's human rights was said to arise not from the activities of extremists in Algeria, but from the authorities themselves, reacting to Berber spring riots in 2001, and the events on 11th September 2001 in the United States. The third ground of appeal effectively repeated the original case.

  18. The grounds also referred to expert evidence from Dr Joffe dated 5th May 2002. It was suggested that there were exceptional circumstances for admitting the evidence, arising from the fact that the appellant was not represented before the first adjudicator, who lacked any expert report on the relevant issues. The appellant had been "left in the lurch" by his previous representatives. The evidence of Dr Joffe was strongly commended.

  19. The appeal was heard on 21st June 2002. The appellant gave oral evidence. An interpreter was available, but the appellant rejected his use. His command of English was sufficient. He spoke directly to the adjudicator, who satisfied himself that an interpreter was not needed. The interpreter was therefore released. Apart from the oral testimony of the appellant, the second adjudicator received and took account of the detailed written submissions, as well as the oral arguments, of the appellant's counsel.

  20. The structure of the determination by the special adjudicator (J. Traynor Esq) is clear. After reminding himself of the guidelines in Devaseelan, and summarising them briefly, he examined the determination of the first adjudicator. He concluded that the appellant was "still substantially arguing exactly the same case". So indeed he was. On this aspect of the claim however the second adjudicator noted that "substantial documentation" which had not been before the first adjudicator was produced before him. In this context, he identified the evidence of Dr Joffe, evidence which would have been available at the first adjudication.

  21. The special adjudicator concluded that he should admit and rely on Dr Joffe's report because he was satisfied that "whilst this material could have been placed before the previous adjudicator the reason why it was not available stemmed from the poor representation of the appellant's case by his former representatives". Having considered Dr Joffe's report the special adjudicator concluded that it provided "clear historical evidence" of the difficulties which the appellant would have faced if he had returned to Algeria immediately after the first adjudication. If that material had been before her, the first adjudicator "would not have been so certain in her assessment of risk".

  22. The special adjudicator then turned to the threat faced by the appellant from the Algerian authorities. He concluded that he should examine those arguments as they covered matters which were not before the first adjudicator. Relying virtually exclusively on the report from Dr Joffe, which he described as "compelling", he concluded that there was a sufficient threat to the appellant's rights under Article 3, 5 and 8 of the Convention for the decision of the SSHD effectively to contravene the obligations of the United Kingdom under the 1950 Convention.

    The decision of the Immigration Appeal Tribunal

  23. The IAT decision was based on three major premises. First, it concluded, that although referring to them, the second adjudicator had failed properly to apply the Devaseelan guidelines. In particular he misdirected himself about the circumstances in which it was permissible for him, as the second adjudicator, to allow the re-litigation of issues already determined by the first adjudicator. This conclusion is encapsulated in paragraph 14 of the IAT determination that it

    "is in no doubt whatsoever that the excuse advanced by the respondent in the present case in no sense constitutes 'a very good reason' within the meaning of guideline (7) of Devaseelan. The adjudicator was accordingly wrong to take account of so much of Mr Joffe's report as sought to put a different slant on evidence which had been fully considered by the first adjudicator, and rejected by her."
  24. Next, the IAT concluded that the second adjudicator's approach to events which occurred after the first determination was "also flawed". It was particularly concerned about the issue of "current risk on return", and the adjudicator's "total reliance on the views of Dr Joffe, to the exclusion of anything else". The IAT noted that guidance had been given in an earlier starred decision, Slimani (01/TH/00092), about the way in which reports produced by experts should be treated, Dr Joffe himself falling within the ambit of a comment in that appeal that his reports were of the kind which "suffer from the difficulty that very rarely are they entirely objective in their approach and that sources relied on are frequently (and no doubt sometimes with good reason) unidentified. Many have fixed opinions about the regime in a particular country and will be inclined to accept anything that is detrimental to that regime. This means that more often than not the expert in question, even if he has the credentials which qualify him in that role, will be acting more as an advocate than an expert witness." In brief, such evidence needed to be approached with caution.

  25. The IAT expressed its surprise that the adjudicator had accepted the observations made by Dr Joffe "in a wholesale and entirely uncritical manner". We discern, too, that it was troubled at his failure to address a substantial body of further evidence to the contrary effect. The Country Assessment pointed out that the UNCHR had not called for a ban on the return of rejected asylum seekers, and indeed reported that "persons returned to Algeria did not encounter problems". Those who returned home following an unsuccessful application for asylum in another country were interrogated to determine their identity and check whether there were any outstanding criminal proceedings or unfulfilled military service obligations. However there have been "no known cases in any European country of former asylum seekers who were maltreated or tortured upon their return". Attention was also drawn to the recent country report for Algeria, December 2002, from the Netherlands Department of Immigration Affairs, which appeared to address part of the material relied on by Dr Joffe based on CIPU enquiry to, among other countries, Germany, in February 2000. The IAT's view was that the authorities in Algeria had adopted "what can only be described as a constructive and conciliatory approach" to the Berber demonstrations in 2001. None of this material was properly addressed. Perhaps more important, none of this material was properly addressed by the second adjudicator.

  26. The IAT reconsidered the evidence. On proper analysis it was "manifest" that the appellant could "safely be returned to Algeria". Accordingly the appeal of the SSHD was allowed.

    The appeal

    Devaseelan

  27. The first major ground of challenge directs criticism at the guidance provided in Devaseelan. Mr Rabinder Singh QC suggested that the juridical basis for the Devaseelan guidance was to be found in common law principles of res judicata and estoppel. He referred us to Thrasyvolou v Secretary of State for the Environment [1990] 2 AC 273. He pointed out that these principles could properly be excluded in any self-contained statutory scheme, both expressly and inferentially. In the Nationality Immigration and Asylum Act 2002 provision is expressly made to prevent repetitive appeals following earlier adjudications (s 96(1) and (2)) and, by certification, to estop a claimant from relying on any ground already considered in another appeal (s 96(3)). Express provisions like these meant that the IAT could not rely on the principles of res judicata as a justification for the guidance provided in Devaseelan.

  28. The problem with this argument is simply expressed. The second application is a fresh application requiring proper consideration on such merits as it may enjoy, approaching the issues contemporaneously. Although it is indeed a "fresh" application, a second or subsequent application is not and is not deemed to be a first application, and it is not properly to be treated as if it were. Re-litigation of issues which have already been resolved is contrary to the public interest, and nothing in the process suggests that the first application should or must automatically be treated as irrelevant to second applications arising in cases like those with which we are presently concerned. If the first application may be relevant, then the extent of its possible relevance and the proper approach to it should be addressed as a matter of principle. That is what the guidance purported to provide.

  29. In our judgment, the IAT, specialising in this field, was entitled to provide guidance to the entire body of specialist adjudicators about how they should deal with the fact of an earlier unsuccessful application when deciding the later one. Such guidance was essential to ensure consistency of approach among special adjudicators. The guidelines remedied an immediate and pressing difficulty, with direct application to, but not exclusively concerned with, the many cases in which, after unsuccessfully exhausting all the possible legal channels, asylum seekers remained in the United Kingdom, and put forward a case on human rights grounds after October 2000.

  30. Perhaps the most important feature of the guidance is that the fundamental obligation of every special adjudicator independently to decide each new application on its own individual merits was preserved. The guidance was expressly subject to this overriding principle.

    "The first adjudicator's determination is not binding on the second adjudicator; but, on the other hand, the second adjudicator is not hearing an appeal against it the outcome of the hearing before the second adjudicator may be quite different from what might have been expected from a reading of the first determination only. The second adjudicator must, however, be careful to recognise that the issue before him is not the issue before the first adjudicator. In particular, time has passed; and the situation at the time of the second adjudicator's determination may be shown to be different from that which was obtained previously. Appellants may want to ask the second adjudicator to consider arguments on issues that were or could not be raised before the first adjudicator; or evidence that was not or could not have been presented to the first adjudicator."

    The guidance concluded with similarly unequivocal language. Guideline 8 says in terms:

    "We do not suggest that, in the foregoing, we have covered every possibility. By covering the major categories into which second appeals fall, we intend to indicate the principles for dealing with such appeals. It will be for the second Adjudicator to decide which of them is or are appropriate in any given case."

    This is not the language of res judicata nor estoppel. And it is not open to be construed as such. In view of the argument, we must emphasise that in Devaseelan the IAT purported to do no more than provide guidance, and in our judgment, properly exercising its responsibilities, that indeed is what it did.

  31. In passing, we should note, that it is a measure of the practical value of this guidance that the present case appears to be the first challenge made to any aspect of it in this Court, and as far as we are aware, it has not created any difficulty for or inconsistency among special adjudicators.

  32. We must now examine Mr Singh's criticism of the terms of the guidance itself. Subject always to the overriding principles already identified, this reads:

    "39. In our view the second Adjudicator should treat such matters in the following way.
    (1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principle issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.
    (2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.
    (3) Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.
    40. We now pass to matters that could have been before the first Adjudicator but were not.
    (4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection. An Appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute.) It must also be borne in mind that the first Adjudicator's determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.
    (5) Evidence of other facts for example country evidence may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first Adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the Appellant's own country at the time of that determination is very unlikely to be relevant in deciding whether the Appellant's removal at the time of the second Adjudicator's determination would breach his human rights. Those representing the Appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.
    41. The final major category of case is where the Appellant claims that his removal would breach Article 3 for the same reason that he claimed to be a refugee.
    (6) If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase 'the same evidence as that available to the Appellant' at the time of the first determination. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken to have made his choices about how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion.
    42. We offer two further comments, which are not less important than what precedes then.
    (7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant's failure to adduce relevant evidence before the first Adjudicator should not be, as it were, held against him. We think such reasons will be rare. There is an increasing tendency to suggest that unfavourable decisions by Adjudicators are brought about by error or incompetence on the part of representatives. New representatives blame old representatives; sometimes representatives blame themselves for prolonging the litigation by their inadequacy (without, of course, offering the public any compensation for the wrong from which they have profited by fees). Immigration practitioners come within the supervision of the Immigration Services Commissioner under part V of the 1999 Act. He has power to register, investigate and cancel the registration of any practitioner, and solicitors and counsel are, in addition, subject to their own professional bodies. An Adjudicator should be very slow to conclude that an appeal before another Adjudicator has been materially affected by a representative's error or incompetence; and such a finding should always be reported (through arrangements made by the Chief Adjudicator) to the Immigration Services Commissioner. Having said that, we do accept that there will be occasional cases where the circumstances of the first appeal were such that it would be right for the second Adjudicator to look at the matter as if the first determination had never been made. (We think it unlikely that the second Adjudicator would, in such a case, be able to build very meaningfully on the first Adjudicator's determination; but we emphasise that, even in such a case, the first determination stands as the determination of the first appeal.)."
  33. Mr Singh suggested that the effect of the guidance, dependent as he submits it is, on principles of res judicata, was too narrow, and inconsistent with the approach adopted in asylum cases, and cases where where human rights considerations were in play. He referred to what we can summarise as the more apparently generous approach to second or fresh applications in four specific areas. First, he identified fresh applications which in fact were repeat applications, in which the SSHD made a "characterisation" decision whether or not the application should be treated as a fresh application leading to an appeal. The acid test whether a positive categorisation was appropriate was identified by Sir Thomas Bingham MR in R v SSHD ex p. Onibiyo [1996] QB 768:

    "[The test] must always be whether, comparing the new claim with that earlier rejected and excluding material on which the claimant could reasonably have been expected to rely on the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken on the new claim despite the unfavourable conclusion reached on the earlier claim."

    (See also R v SSHD ex p. Boybeyi [1997] Imm AR 491.)

  34. Next, Mr Singh identified those cases in which it is accepted that the first determination should be treated as a miscarriage of justice. In these circumstances, where the appellant has not been at fault, the fresh notice of refusal is issued by the SSHD, and a fresh right of appeal is created. (R v SSHD ex p. Syed Mohammed Kazmi [1995] Imm AR 73.) The third category concerned the system for certification for appeals where previous appeal proceedings had already taken place, or where repeated claims were characterised as manifestly unfounded. Mr Singh pointed out that in R (Yogathas) v SSHD [2003] 1 AC 920, Lord Hope described the concept of "manifest unfoundedness" as one where a claim was "so clearly without substance that the appeal would be bound to fail". Our attention was also drawn to R (ZL and VL) v SSHD [2003] IMLR 224 where Lord Philips MR explained that

    "If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded."
  35. The fourth category of cases related to fresh evidence on appeal, and the discretion to admit new evidence in the interests of justice. In his skeleton argument, Mr Singh referred to a number of authorities, but his submission can be encapsulated by a brief reference to the judgment of Keene LJ in A v UK [2003] EWCA Civ 175:

    "The proper approach was to consider the wider interests of justice. This must be right both in asylum cases and in those where Articles 2 or 3 are invoked. After all, one has to consider the context in which these cases are brought. This further evidence is credible and it is potentially significant, going much further than the material which the IAT had. I for my part am quite satisfied that the wider interests of justice do require the fresh evidence to be considered by this Court."
  36. Each of the categories identified by Mr Singh is characterised by the sensitivity of the issues which are engaged. Put starkly, the wrong decision may condemn an unsuccessful appellant to persecution, torture, or death. That said, however, in our judgment the guidance given by the IAT does not overlook these disturbing realities, nor imply, let alone suggest, that adjudicators considering a fresh application in circumstances like the present should be blind to them.

  37. In his submissions Mr Singh addressed particular criticism of guidelines 5 and 7. In relation to guideline 5, he suggests that on one construction, this may penalise an applicant involved in a second application, for failing to produce evidence which could have been available at the first application but was not. This is not how the guidance reads. This part of the guidance is intended to contrast the problematic issue of credibility (addressed in guideline 4) which may arise when an applicant has failed to give evidence of material known to or personal to himself and his own condition, and then seeks to add something about these matters in the course of a second application. The risk identified in guideline 4 is embellishment or fabrication. In short, its purpose is to give a warning in these broad terms: if the evidence is true, why was it not given at the first hearing? Even so, it does not automatically follow that the evidence must be untrue. The words "not usually" expressly demonstrate that the guidance is not intended to impose a credibility finding on the second adjudicator. It is however sensible to seek an explanation for the omission. One such explanation, referred to in guideline 7, may be the low quality of the representation before the first adjudicator.

  38. By contrast with the "great circumspection" with which guideline 4 is concerned, guideline 5 merely suggests a degree of "caution". It is concerned with evidence for which the applicant personally is not the source. It may, for example, be expert evidence. This guideline highlights the risk of over-reliance on evidence independent of the applicant which, even if accurate at the time when it was given at the first adjudication, may have become out of date by the time of the second. This guidance is not concerned with and does not address the broad issue of credibility. It does no more than emphasise that the second application is indeed a fresh application, and that some evidence from the previous application favourable to the applicant as well as unfavourable, - may no longer be accurate. More important, it does not preclude the re-use of objective and expert evidence the impact of which, notwithstanding the passage of time remains undiminished. What it advises is that care should be taken not to assume that it does.

  39. Specific criticism is also directed at guideline 7. The objection is that its approach to allegations of incompetent representation in the first application is too restrictive. In particular Mr Singh was concerned at the requirement that an adjudicator was effectively precluded from finding that legal representation before the first adjudicator was inadequate unless that finding was reported to the Immigration Services Commissioner. If this were so, then there would be force in his criticism. In our view however, guideline 7 does no more than warn against the ease with which allegations of inadequate or incompetent representation may be made. The issue is of sufficiently broad importance for the IAT to require that cases where professional incompetence or error have been demonstrated should be reported. The guidance does not tell adjudicators that they should refuse to make such findings where they are appropriate, and equally, it is not suggesting whether and when such findings should be made. All that it is requiring is that if they are made, in the overall interests of the administration of justice in this particular and sensitive field (including those of potential applicants themselves) such findings should be reported. In our judgment, no-one benefits if they are not so reported, and the requirement that they should be does not impinge on the second adjudicator's obligation to act on findings of legal incompetence in the course of the first adjudication if such findings are justified.

  40. The specific criticisms directed at guidelines 5 and 7 fail. Having analysed the guidelines as a whole, in the light of the specific criticisms, it seems to us that it would be positively disadvantageous for this Court now to attempt to rewrite any part of the guidance by expressing the same ideas in different language. We have no reason to believe that adjudicators approach this guidance as if they were construing statute or regulation, or apply it as if it were, without regard to the true merit (or otherwise) of the fresh application. The great value of the guidance is that it invests the decision making process in each individual fresh application with the necessary degree of sensible flexibility and desirable consistency of approach, without imposing any unacceptable restrictions on the second adjudicator's ability to make the findings which he conscientiously believes to be right. It therefore admirably fulfils its intended purpose.

    The IAT decision

  41. The final area of criticism is directed at the SSHD's successful appeal to the IAT. In essence it is submitted that the IAT was not justified in nor entitled to interfere with the second adjudication.

  42. The relevant principles have recently been summarised in Subesh & ors v SSHD [2004] EWCA Civ 56. We shall apply but not repeat them, acknowledging simply that the appellant had the advantage of the second adjudicator's finding in his favour, and that it was for the SSHD to persuade the IAT that it was "required" to adopt a contrary view.

  43. The relevant facts are sufficiently summarised in the judgment. The issues were very stark. The second adjudicator was invited to consider a claim which, in part, effectively repeated the original grounds rejected by the first adjudicator, which were based on a threat to him by Islamic fundamentalists from which the authorities in Algeria would not or could not protect him. The claim was advanced on the further grounds that in consequence of events which took place after the first determination, the appellant was now susceptible to a serious risk from the authorities in Algeria. This claim plainly was not and could not have been advanced to the first adjudicator.

  44. The successful appeal to the second adjudicator stemmed from the admission in evidence of the written evidence of Mr Joffe. No rigid application of res judicata principles was required to question the reliance placed on Mr Joffe's evidence in relation to the repeated claim of a threat from fundamentalists. The second adjudicator was satisfied that the absence of this evidence from the first adjudication stemmed "from poor representation". To the extent that this implied that the appellant had been legally represented at all before the first adjudicator, it was wrong. Perhaps, the second adjudicator was doing no more than saying that this evidence could have been available, but was not put before the first adjudicator. However that is not how he expressed himself. In any event, it did not necessarily follow from the failure to deploy evidence from Mr Joffe, or a similar expert, before the first adjudicator, that the appellant's self-representation was deficient. Be that as it may, on this topic, the second adjudicator confined himself to recording that Mr Joffe's report provided historical evidence of the "difficulties" which the appellant would have faced if he had returned to Algeria immediately after the first adjudication. His finding, however, was that if this material had been before the first adjudicator it would have made her less "certain" of the absence of risk to the appellant. It is difficult fully to comprehend what the second adjudicator means when he adds that he can "confirm" that this material would have produced increasing uncertainty in the first adjudicator. These are nebulous findings, perhaps exemplifying the dangers of repeated litigation of the same issues. In any event, reading the determination as a whole, if the second adjudicator decided the human rights claim on the basis that he accepted the factual matters relating to the appellant's claim which had been rejected by the first adjudicator, the IAT's criticism of that aspect of the determination was amply justified.

  45. The centrality of Mr Joffe's evidence to the second adjudicator's decision is plain. Without Mr Joffe's support, the new grounds for the claim were bound to fail. The IAT was concerned that the second adjudicator had failed to address the concerns to which it had earlier directed attention in Slimani. The IAT was right. The adjudicator had not done so. It was equally concerned at his failure to address the body of seemingly impressive evidence which served to contradict much of what Mr Joffe was saying. Again, he did not do so. Although the adjudicator would have been entitled to accept Mr Joffe's evidence, it was entirely reasonable for the IAT to expect that before doing so, he would address what we shall describe as the Slimani reservation, and, further, even if briefly, explain the reasons for rejecting the apparently reputable body of evidence on these important issues put before him on behalf of the SSHD. None of this was done. That was not good enough. The IAT was therefore entitled to interfere.

  46. For these reasons the appeal against the IAT's determination fails.

    Order: Appeal dismissed. No order as to costs save for detailed Community Legal Services assessment of the appellant's costs.
    (Order does not form part of the approved judgment)


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