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||Neutral Citation Number:  EWCA Civ 1800
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. HX/03493/2005]
||Royal Courts of Justice
||11th December 2006
B e f o r e :
LORD JUSTICE HOOPER
||- v -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DAR Transcript of
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MS K SMITH (instructed by Newcastle Law Centre) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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- LORD JUSTICE HOOPER: This is a renewed application for permission to appeal a decision of the AIT. The immigration judge Mr Cope, had dismissed the appellant's appeal against the decision of the respondent, refusing the appellant's claim for asylum and his claim that any removal from the United Kingdom to Ethiopia would be incompatible with his rights under the Human Rights Act 1998 and the European Convention of Human Rights.
- The appellant is a national of Ethiopia. He entered the United Kingdom on 16 October 2002 and made a claim for asylum. His claim is based on his ethnicity and his political opinion. The appellant is an Oromo. He contends that in 1992 he became an active member of the political opposition party, the Oromo Liberation Front ("the OLF") and as a result he claimed he suffered difficulties. He claimed that in 1995 the authorities detained and ill-treated him for 45 days. Following the bombing in Addis Ababa in September 2002 the authorities, so he claimed, arrested one of the members of his cell, who under torture revealed his name. The appellant was thereafter sought by the authorities. He fled Ethiopia, so he claimed. He arrived in London on 16 October 2002 by air. As a result of information sent by the British Embassy in Addis Ababa to the Immigration Service in the United Kingdom, the appellant was questioned upon arrival and refused leave to enter. He was, however, released pending removal.
- Subsequently, on 28 October 2002 he claimed asylum. His asylum application was not refused until 11 February 2005. The appeal before Mr Cope was heard on 15 December 2005 and on 30 December 2005 Mr Cope dismissed the appeal. The appellant made an application for reconsideration. On 19 January 2005 Senior Immigration Judge Mr Lane ordered reconsideration. The matter came before the AIT on 7 June 2006. The AIT found, as I have said, that the immigration judge's determination did not disclose a material error of law and, therefore, Mr Cope's decision should stand. The appellant unsuccessfully sought permission to appeal from the AIT and then unsuccessfully sought permission to appeal from this court, the application being refused by the Right Honourable Sir Paul Kennedy on paper.
- Although the grounds of appeal attack the decision of the AIT, to succeed Ms Smith accepts that the appellant must show that the decision of Mr Cope contained a material error of law. It is submitted that Mr Cope's determination revealed three errors of law. In paragraph 20 of his finding, Mr Cope he sets out the background to the claim. In paragraph 22 he states that one of the principle issues in the appeal was whether or not the appellant was credible. He reached a conclusion that he was not credible. Mr Cope made a new unchallenged adverse finding against the appellant's credibility because of his failure to make any claim for asylum until 28 October 2002, which was well after his entry clearance had been cancelled and he had been refused leave to enter the United Kingdom.
- Mr Cope accepted that the appellant was of Oromo ethnicity. He accepted, relying on the medical evidence in particular, that it was reasonably likely that the appellant was detained by the Ethiopian security authorities in 1995 and that he was seriously ill-treated during that detention. Mr Cope went on to say in paragraph 37:
"The question though for me is whether that arrest and detention took place in the circumstances and for the reasons that the appellant has himself claimed, or whether he was simply one of what appear to have been a considerable number of innocent people subjected to such ill-treatment by the Ethiopian government because they were wrongly suspected of support for the OLF."
- Mr Cope found major discrepancies in the account given by the appellant. That finding of major discrepancies set out in paragraph 38 is the subject matter of ground 1. As Ms Smith submits, it is arguable that the adverse finding of credibility resulting from what is set out in paragraph 38 is pivotal to this case. As Sir Paul Kennedy said on paper, the wording of paragraph 38 could have been more explicit. Paragraph 38 reads as follows:
"So far as the detention in 1995 is concerned, there are major discrepancies in the accounts given by the appellant about his experiences then. At paragraph 4 of the further statement, and in his oral evidence, the appellant stated that one of the members of the cell who was arrested had a brother who was an OLF fighter; as a result this person was detained for three years."
- The reference to the arrest of a member of the cell can be found in paragraph 4 of the appellant's statement dated 19 April 2005, at page 103 of the bundle using the pagination on the bottom left of the page:
"The security forces came to my home as the meeting was finishing and arrested all of us as we were leaving the house. One person was kept in prison for three years without being charged or going to Court. The reason he was treated so severely was when they looked in to his background they found out that his brother was a fighter for the OLF."
He goes on to say that he was detained for a period of 45 days. His claimed treatment is set out in paragraph 5 of the same statement.
- The immigration judge in paragraph 38 went on to say:
"However, this was contradicted by what he had had to say [… in] his SEF. […] There he said that his own brother had been detained for three years without charge or trial."
The further statement and the oral evidence was given in 2005 and the SEF statement was given in 2002. The immigration judge continued:
"On the other hand at paragraph 5 of the appeal statement the appellant quite specifically states that the Ethiopian authorities did carry out a check into his family background and discovered that his family were not educated and did not appear to be involved in politics."
It is quite clear when one looks at the SEF statement that the appellant is stating that the check that was carried out was carried out in 1995, prior to his release.
- It seems to me that the immigration judge was understandably concerned that one member of the cell had been detained for three years because his brother was an OLF fighter, whereas this appellant had been released after 45 days, albeit that the appellant's brother had also been detained for three years without charge or trial. If that is right, so the immigration judge is stating, one would not have expected the appellant to be released after 45 days, but have been treated in the same way as the other alleged member of the cell.
- Ms Smith submits that the problem with this line of reasoning is that the immigration judge appears to be accepting that the detention of the appellant's brother had been before or during 1995, whereas Ms Smith tells me that the appellant would say that this detention had taken place after 1995. It could be said that it was for the appellant to have cleared up this confusion and that seems to have been the approach taken by Sir Paul Kennedy. On the other hand, so Ms Smith tells me, this alleged anomaly had not been picked up by the respondent in the refusal letter, nor by the respondent during the course of the hearing and nor by the immigration judge. Given that it had not been so picked up, so Ms Smith submits, it is arguable that the immigration judge ought to have given the appellant an opportunity to deal with this apparent anomaly. If he had done so then, so she tells me, the appellant would have said that the detention of the brother was post 1995. It seems to me that she makes an arguable point of law about paragraph 38.
- She raises two further grounds. One concerns the letter sent by the British Embassy, which can be found at page 111 of the bundle. It is submitted that the immigration judge did not deal with an argument that the Ethiopian authorities smear people, bring false proceedings against people and that this letter might reflect no more than that. She, however, accepted that if she were to fail on ground 1 then this argument would have much less weight. Given the adverse credibility findings for example in paragraph 72, it could be said that the immigration judge would not have to have specifically dealt with this letter.
- It seems to me that if the appellant succeeds on ground 1, then it may well be that the court does not have to deal with ground 2 at all. If the appellant fails on ground 1, it seems to me that the court will have little difficulty in rejecting this ground, but nonetheless I do not formally refuse permission to appeal.
- The third ground is a quite different matter and concerns the appellant's activities in this country. It is a free-standing ground. At my invitation, Ms Smith did not develop the point at any length before me. Whilst not formerly giving her permission to appeal on the ground, I leave it to the full court to consider it. Again, should ground 1 succeed then this ground will not have to be examined. If it fails, the court may wish to invite representations from Ms Smith about it.
- The appeal should be heard of a Court of Appeal consisting of two Lords Justices. The appellant should produce a new bundle, not altering the pagination, because I have made reference to the pagination in my judgment and indeed Ms Smith makes reference to the pagination also, but making it far easier to find the pagination. It is much more helpful to the court if there is only one page reference per page rather than a number of page references which the court is supposed to elect which one to use. Thank you very much.
Order: Application granted.
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