[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWCA Civ 1411
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION APPEAL TRIBUNAL
[AIT NO. HX/33163/2004]
||Royal Courts of Justice
||21st July 2006
B e f o r e :
LORD JUSTICE SCOTT BAKER
LORD JUSTICE NEUBERGER
LORD JUSTICE MOORE-BICK
||- v -
||SECRETARY OF STATE FOR THE HOME OFFICE
(DAR Transcript of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR A JAFAR (instructed by Messrs Aman) appeared on behalf of the Appellant.
MR S KOVATS (instructed by Treasury Solicitors, LONDON, WC2B 4TS) appeared on behalf of the Respondent.
HTML VERSION OF JUDGMENT
Crown Copyright ©
- LORD JUSTICE SCOTT BAKER: The appellant is a Sudanese national born on 15 September 1975 and so now aged 30. He appeals with the leave of Maurice Kay J against a decision of the immigration judge given on 26 April 2005 following a hearing that had taken place on 7 April. His case has a long history. His asylum appeal was dismissed by an adjudicator on 11 July 2003 but the Immigration Appeal Tribunal remitted his case for a fresh hearing before a different adjudicator. This took place on 5 July 2004. Again there was an appeal and again the case was remitted. This time the hearing was in April of 2005, which is the decision appealed from, but it has been argued that either the appeal should be allowed or the case should once again go back because the decision of the immigration judge was again flawed.
- On all three occasions the appellant was held not to have been a credible witness, albeit the immigration judge on the occasion appealed from made limited findings as to the appellant's credibility.
- In brief, the facts are as follows. The appellant's asylum claim was made as long ago as 18 November 1999 and rejected by the Secretary of State along with his Human Rights Act claim by a letter of 10 April 2003. The basis of the appellant's claim was that he fled from the Sudan in fear of the authorities arising out of his involvement with the Democratic Unionist Party, of which his father was a member and which he joined in February 1990. In October 1991 he participated in a student demonstration in Algadarif. The protest was against the Government. He was seized by security officers and taken to their headquarters along with other students. They were detained for a week. He was interrogated, beaten and kicked. He was asked why the demonstration had been arranged and who organised it. The students were all released but were forced to sign statements saying that they would not participate in any further political activities.
- In June 1993 he was arrested again. This time there was a demonstration against government policies and their abuse of human rights and on this occasion he was detained for two weeks. Again he was interrogated and beaten and this time suffered severe physical torture. He was again released on signing a statement that he would not indulge in future political activities. Between 1994 and 1996 he undertook military service and thereafter he resumed his political activities on behalf of the DUP.
- His third and final arrest took place in December 1998 when he was stopped on the way home by security forces. They forced him into a car and took him to some premises where he was interrogated and accused of arranging anti-government demonstrations. He was asked for information regarding his political activities and the names of members of the DUP, and when he denied everything and refused to answer the questions he was once again hit, beaten and tortured. He was threatened with death if he did not reveal the names of other party members and he was informed that he had been placed under surveillance and all his movements had been recorded. This detention continued for one month and he was only released because of his poor health. However, for the third time, he was forced to sign a statement agreeing to cease his political activities.
- On his release he made his way to the home of a friend, where he stayed for about a week. On contacting his family, he was informed that security officers had been to his home looking for him and at this point he realised he could never return home and would have to leave the country. He made his way to Port Sudan whilst the DUP arranged for an agent to accompany him by ferry to Syria, where he changed to another ferry that took him to the United Kingdom.
- The appellant had been the Media/Cultural Secretary of the DUP in Algadarif. Since arriving in the United Kingdom, he has re-established himself with the DUP and has become involved with information and political affairs, taking part in their meetings and attending demonstrations organised by them outside the Sudanese embassy.
- In 2003 he married and in November 2004 his wife gave birth to a child, but the judge observed that the father and mother gave different addresses on the birth certificate. He claims that he has no home or family to return to in the Sudan. He produced before the immigration judge a medical report from a Dr Taghipour, describing injuries that were consistent with his account of the treatment that he had received at the hands of the authorities in Sudan. He lodged witness statements from a Mr Ali Mohamed and Mr Mohammed Merghani, who was Vice President of the United Kingdom and Ireland branch of the DUP, and also Dr Mansour Elagab, the Chairman of the Sudan Human Rights Organisation. The immigration judge heard evidence from Mr Abubakr Ali Mohamed that the appellant was an active member in this country with the DUP and took part in most of their functions. He said he thought that the appellant was known about by the Sudanese security services in London and that he remained of continuing interest to them.
- The first of the immigration judge's conclusions are to be found at paragraph 33. He said:
"I accept that this appellant was a member of the DUP but I believe that certain aspects of his claim are not true. On the appellant's own admission, whilst in Sudan, having joined the DUP, he was only involved in preparing and distributing leaflets and magazines and I am also prepared to accept that he did write certain articles and research certain matters. However his evidence, both written and oral, does not suggest to me that he was a high ranking officer in the DUP and I agree with Miss Leatherland, that the DUP would not have paid for a member of his standing to live in Port Sudan for eight months and then pay all the expenses enabling him to travel from there to the United Kingdom via Syria in the hands of agents. Furthermore, I find it inconceivable that it took eight months from when the appellant claimed to have arrived in Port Sudan for arrangements to be made for him to proceed further to a country of safety, and I also do not accept that having made these arrangements and having made the necessary payments, the DUP Party members would not have given the appellant some advice as to what to do when he reached a safe country. It is equally inconceivable that a person of the appellant's apparent intelligence, on a long sea journey, would not have enquired as to where his final destination was and I therefore believe that he has overestimated and exaggerated his level of involvement in the DUP and his account of how he left Sudan. Furthermore, there were several discrepancies in his evidence pointed out by Miss Leatherland in her submissions which each on their own, would not have been fatal to his claim, but when considered together, give rise to serious doubts as to the truth of the appellant's account …"
- He said at paragraph 34:
"On the other hand, it is quite clear and beyond dispute that the appellant does bear scarring on his body and two medical reports conclude that they are consistent with his claims of having been beaten and tortured. I am therefore prepared to accept that the appellant was indeed detained and mistreated whilst in detention on the three occasions that he claimed and I must therefore resolve whether the fact that he was detained in Sudan because of his involvement with the DUP would put him at risk on his return at this point in time especially as I am also prepared to accept from the clear evidence given by the second witness, Mr Ali Mohamed, that the appellant has been involved in the activities of the UK branch of the DUP especially as this claim has been supported by photographs of the appellant demonstrating outside the Sudanese Embassy in London."
- The immigration judge's analysis of the issue of risk on return was as follows:
"1) His last detention was over six years ago and he was released each time without charge on a signed undertaking.
"2) On the first two detentions he was not specifically targeted but arrested with others.
"3) Had he been of interest to the authorities, he would not have been released so easily without restrictions.
"4) The report of the Danish fact finding mission to Cairo, Khartoum and Nairobi of late 2001 whilst stating that political opposition activists in Sudan especially those involved with the DUP were at risk, it was only active members who spoke openly about the political situation who were at risk of persecution by the authorities. His past activities in Sudan did not put him into that category and nor did his activities with the DUP in this country which involved demonstrating outside the Sudan embassy."
- In summary he concluded at paragraph 36:
"I accept that this appellant was involved with the DUP in Sudan but I do not accept everything that he has said and I believe that he has embellished his role in the party. I do not accept that he left the country in the manner he described and I do not believe that his past low level activities on behalf of the party both in Sudan and in the United Kingdom, would put him at any risk whatsoever on his return. I therefore dismiss this appeal both under the asylum legislation and also under Articles 2 and 3 of the ECHR."
- Each of the appellant's grounds of appeal claim that the immigration judge ignored a material part of the evidence but as the appeal has developed it has become apparent that Mr Jafar is essentially relying on two grounds. First, the immigration judge did not factor into his risk assessment the risk to the appellant occasioned by other family members and in particular his father's activities with the DUP. It is true that the immigration judge did not treat this as a risk factor. Passing reference was made, however, to the appellant's father in the course of the immigration judge's determination. He mentioned in paragraph 3 that his father was a member of the DUP and in paragraph 14 that the family had strong links with the DUP and that his father was an active member. Then at paragraph 19 he said this:
"With regards to the appellant's father's involvement with the DUP, the appellant informed me that his father had been arrested and detained for the last time in 1993 but after he had left Sudan, he had heard that his father had been summoned for further interrogation and had been detained during 2000."
- This information all came from the appellant. It is unclear whether the immigration judge accepted it as true. At any rate, he did not say that he did not. There was also evidence from Mr Abubakr Mohamed that the appellant's family was traditionally well known to support the DUP, and from Doctor Elagab, who said at page 32 of the bundle before the immigration judge:
"He [that is the appellant] also comes from a highly respected politicised Sudanese family, which is opposed to the present dictatorial regime. Many of his family members have suffered severe persecution in the Sudan for their political opinion. His brother Oshaik was conscripted in the Popular Defence Forces against his own wish on his way back home from school and was sent to the front lines in the Eastern Front where he was killed in obscure circumstances. His father, who is a leading member of the Democratic Unionist Party, DUP, had also suffered severe political persecution under the present regime. His where about is now unknown."
- Mr Jafar argues that the father's past activities with the DUP will inevitably heighten the risk to the appellant should he return. Mr Kovats' response is that this issue was never before the immigration judge, nor indeed was it before either of the previous tribunals who had heard the appellant's case. He referred us to the appellant's statement, which recorded at paragraph 5:
"I entered the United Kingdom on 16 November 1999 and I claimed asylum on 17 November. The basis of my asylum claim relates to the problems I suffered in my country for reasons of my involvement with the Democratic Unionist Party (DUP)."
- We have been shown the appellant's counsel's skeleton argument before the immigration judge. Only in the overview is the appellant's family mentioned at all. The father has not been heard of since 2000 and there was no clear evidence about what, if any, continuing interest the Sudanese authorities have in him, and in my judgment there was no basis for submitting that anything he had done heightened the risk to the appellant on return. It is therefore, in my judgment, not surprising that the point was not taken before the immigration judge, albeit Mr Jafar submits that it was at least in some form. It is further not surprising, if the point was not taken, that the immigration judge did not deal with it. For my part, I can see no error of law on this point.
- The second ground of appeal however is much more substantial. It is this: the immigration judge accepted that the appellant had been detained on the three occasions described, and mistreated as described. He accepted that he was detained because of his involvement with the DUP, albeit that on the first two occasions he was not specifically singled out, being arrested with others. The judge posed the question he had to answer as:
"I must therefore resolve whether the fact that he was detained in Sudan because of his involvement with the DUP would put him at risk on his return at this point in time …"
- At paragraph 35 he concluded:
"Accordingly, I cannot accept that this appellant's past activities in Sudan would put him at risk on his return and I have not seen any evidence which suggests that just because the appellant demonstrated outside the Sudanese Embassy in the United Kingdom that this would put him to be at risk on his return."
- Taken at face value, both these statements refer to events that had already occurred. It may be that when the judge in paragraph 35 referred to "past activities", what he mean was activities of the kind he indulged in, in the past, but if he did he did not say so. The immigration judge should have asked himself what the risk was to the appellant if he went back to the Sudan and continued with the low-level activities with the DUP of the kind he had taken part in previously, and he should have asked himself that question in the light of what had happened to the appellant in the past. That he did not do so is in my judgment an error of law, and a material error of law, as it is possible that had he done so the outcome of the appeal would have been different. It is true that the judge concluded that if the appellant had been of interest to the authorities he did not believe he would have been released so easily and without restrictions apart from again promising to cease his political activities, but the fact is that the judge never conducted the appropriate risk assessment.
- The judge referred to in-country information and in particular the report of the fact-finding mission to Cairo, Khartoum and Nairobi by the Danish immigration service. He said in paragraph 35:
"It is indeed true that the report on the Fact-Finding Missions to Cairo, Khartoum and Nairobi which took place in the second half of 2001 by the Danish Immigration Service, does state that political opposition activist in Sudan and especially those involved with the DUP are at risk, nevertheless another section of the report states that it is only active members of the opposition parties who speak openly about the political situation are at risk of persecution by the authorities. Those members of opposition parties who for example distributed pamphlets were hardly at risk of being targeted whilst it was the more prominent members of the opposition who risked harassment and abuse from the authorities."
- The report contains a lot of material, not all of it entirely consistent. Mr Jafar accuses the judge of cherry-picking. A judge has to conduct a reasoned appraisal of the in-country information and reach his own conclusions in the light of any country guidance cases, but in this case he did not do so in the context of having asked himself the right questions in relation to the appellant returning to the Sudan and continuing his low level DUP involvement in the context of his three previous detentions and ill treatment.
- In the circumstances I would allow the appeal on the single ground that I have indicated and remit the case to the AIT to be redetermined in the light of 1) the existing findings of fact and 2) up to date in-country evidence.
- It seems to me to be extremely regrettable that this case yet again has to go back for redetermination but I cannot see any other appropriate solution. The appeal, in my judgment, should be allowed accordingly.
- LORD JUSTICE NEUBERGER: I agree.
- LORD JUSTICE MOORE-BICK: I also agree.
Order: Appeal allowed.
Copyright Policy |
Donate to BAILII