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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Kingarth
Lord Wheatley
Lord Marnoch
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[2008] CSIH 10
XA52/06
OPINION OF THE COURT
delivered by LORD KINGARTH
in
APPEAL
by
D.M.
Appellant;
against
THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent:
_______
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Act: Devlin; Drummond Miller
Alt: Webster;
C. Mullin, Office of the Solicitor to the Advocate General
30 January 2008
[1] The appellant
identifies herself as a citizen of Zimbabwe.
She arrived in the United Kingdom on 22 December
2004, along
with her dependent child, and claimed asylum.
She maintains her claim. The
central basis of her claim is that she has a well-founded fear of persecution
arising out of certain actions taken by the Zanu-PF Youth against her husband
and herself. In particular, the broad
outline of her claim is that on 6 August 2004 a group of young men came to the
house in rural Zimbabwe where she and her husband lived and
accused her husband of being involved in activities on behalf of the Movement
for Democratic Change, of which organisation he was a member. They beat him and dragged him away. On 9 August 2004 they returned to the house. They told her that her husband had
escaped. They threatened to make her
disappear if she failed to co-operate.
In fear for her safety, and with the help of friends of her husband, she
left Zimbabwe and went to Botswana, and ultimately on 1
September 2004 was taken into South Africa, where she stayed with someone known
to her husband's friends. That person
obtained false South African passports for her and her daughter, which they
used to leave the country on 21 December 2004.
The appellant also claims, having regard to her same fears, that removal
to Zimbabwe would breach her human rights, in
particular her rights under Article 3.
[2] Her claim to
asylum was initially refused by the respondent by letter dated 28 January
2005. She appealed against that refusal to the
Asylum and Immigration Tribunal ("the Tribunal"). By determination dated 9
April 2005
an Immigration Judge ("the first Immigration Judge") dismissed her appeal both
as respects her asylum and human rights claims.
It was accepted before him that her nationality and identity were not in
issue. He noted, however, "a number of
difficulties with certain aspects of her account" and concluded inter alia
"It is clear to me that a number of
aspects of the appellant's account have been invented. I find that these inventions materially
affect the credibility of the core of her account and therefore her asylum
claim must fail".
[3] The appellant
sought an order requiring the Tribunal to reconsider its decision under section
103A of the Nationality, Immigration and Asylum Act 2002 (as amended by section
26 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) ("the
2002 Act"). On 10
May 2005 a Senior
Immigration Judge ordered reconsideration, saying inter alia
"Arguably the Immigration Judge
failed to make clear findings in particular whether the appellant's husband had
been detained and had successfully escaped ... It is the above matter which is at
the core of the claim and arguably the Immigration Judge was in error of law in
not making sufficiently clear findings of fact".
[4] The appeal was
reconsidered in the first instance by two members of the Tribunal (a Senior
Immigration Judge and an Immigration Judge) on 23 September
2005. They decided that there had indeed been an
error of law in the previous determination.
At paragraph 3 of their written reasons they explained the respect in
which the first Immigration Judge had erred, saying in particular
"We are not satisfied that the
Immigration Judge made findings or sufficiently clear findings on relevant and
core aspects of the claim which may have made a material difference to the
outcome."
At paragraph 4 they concluded
"The error of law is that the
Tribunal failed to make clear and proper findings of fact. In those circumstances the evidence has to be
reheard afresh".
[5] The
reconsideration was therefore adjourned and transferred to another Immigration
Judge ("the designated Immigration Judge") for further hearing and ultimate
determination. After a hearing on 15
November 2005,
at which the appellant was represented by a solicitor, Mr. McArthur, the
designated Immigration Judge decided, in a determination promulgated on 25
November 2005, that
" ... although original Tribunal made a
material error of law, after fresh hearing the determination remains that the
appeal is dismissed on asylum and human rights grounds".
[6] The
designated Immigration Judge records (at para. 8) that at the outset of the
hearing the respondent's representative lodged a supplementary bundle of
documents (containing documents apparently not in the original bundle of documents
before the first Immigration Judge) including copies of the passports of the
appellant and her dependent child. He
records, and before us it was accepted, that no objection was taken at this
stage to the lodging of any of these documents.
It is later recorded that the respondent's representative sought to
question not only the credibility of the appellant's core account but also -
apparently arising from consideration of the passports - the credibility of her
claim to Zimbabwean nationality . Further,
at paragraph 19 the designated Immigration Judge records that although some
concern was expressed by the appellant's representative
"However, no objection had been taken
to late filing. I had allowed Mr.
McArthur an additional 40 minutes or so prior to the one hour lunch adjournment
to consider matters. As to nationality,
while it had not been put in issue previously it was an obvious point given
that the Appellant did not dispute arriving on a South African passport ... ".
[7] The
designated Immigration Judge gives the reasons for his ultimate decision at
paragraphs 23 to 37 inclusive. In
paragraphs 26 to 33 he sets out a number of detailed reasons for disbelieving
the appellant's account of what happened in Zimbabwe and of her movements thereafter, all
related to the nature of the account itself and the consistency with which it
had been maintained. He found, for
example, in relation to her claim that her husband was an active MDC member,
that there had been "embellishment, revealing a lack of reality underlying the
account"; that the lack of any
information, or apparent concern, regarding her husband "suggests to me very
strongly that his detention and escape never happened"; and, further, that the story of how her travel
was arranged and financed was "beyond belief".
He accepted (at para. 36) that a number of the features of her account
of what had happened to her were consistent with the background evidence (apparently
relating to what could happen in Zimbabwe), but considered that "the extent of
invention, on the other hand, goes to the core of the account".
[8] In addition,
at paragraph 35 he says
"A person who arrives in possession
of an apparently genuine national passport must expect an inference that she
possesses that nationality. Contrary to
the submission for the Appellant, it is not for the Respondent to adduce proof
that it is a genuine document. It would
be for the Appellant to rebut it. The
Presenting Officer advised me that the passports are considered to be genuine
documents. The Appellant describes them
at paragraph 11 of her latest statement as 'fake'. There is no more she could say about the
passports, as she claims to have no knowledge of how they were obtained. I have to assess this in the context of the
other evidence."
At paragraph 37 he concludes by saying
"For all these reasons the Appellant
has failed to persuade me, even to the lower standard, of the truth of any of
the essential aspects of her claim. As
to the facts I can make no findings in her favour. She has failed to show that she is a national
of Zimbabwe;
that her husband was ever detained;
that her husband escaped; that
she was ever threatened; that she left
her home place or her country, or travelled to the UK, because she feared persecution or
ill-treatment; or that the authorities
in Zimbabwe have any adverse interest in her
now."
[9] The appellant
has appealed to this court, on a point of law, under section 103B of the 2002
Act, with leave of the Tribunal, against this decision of the designated Immigration
Judge on reconsideration.
[10] Mr. Devlin for
the appellant presented essentially two broad submissions, both arising out of
the admission in evidence of the passports and the apparent use made of them by
the designated Immigration Judge in relation to the question of the appellant's
nationality.
[11] First, he
submitted that, for a number of what might broadly be categorised as procedural
reasons, it was not open to the designated Immigration Judge, in all the
circumstances, to question the credibility of the appellant's claim to be
Zimbabwean, and in particular to use the passports to do so. Her nationality had not been questioned
before; indeed it was expressly conceded
before the first Immigration Judge. Neither
the arguable error of law identified by the Senior Immigration Judge who
ordered reconsideration, nor the error of law found by the Tribunal at the
first stage of reconsideration, related to the original finding as to her
nationality, which had been based on a concession. This was underlined by the reference to the
appellant in paragraph 1 of the reasons issued on 23
September 2005 as a citizen of Zimbabwe.
In that connection it was significant that paragraph 14.4 of the
relevant Asylum and Immigration Tribunal Practice Directions directed that the
written reasons for finding that the original Tribunal had made a material
error of law should form part of the determination of the Tribunal which
completes the reconsideration of the appeal and that only in exceptional cases
could the decision contained in those written reasons be departed from or
varied. In general, a designated
Immigration Judge at the second stage of a reconsideration should proceed on
the basis of previous findings which had not been the subject of the identified
error in law. Reference was made to certain
observations of Latham LJ in DK (Serbia) v
Secretary of State for the Home
Department 2007 2 All ER 483, in particular at paragraphs 14 to 25. Although it was accepted (as was recognised
by Latham LJ in the passage referred to) that previous findings could be
challenged if new evidence was allowed to be led or there were other
exceptional circumstances justifying that course, there would still require to
be some underlying error of law relating to these findings. In the present case it could not be said that
the passports lodged were new evidence, they having been handed over by the
appellant on arrival. There were no
exceptional circumstances. Furthermore,
no indication had been given within five days of the order for reconsideration
that the respondent intended to contend that the Tribunal should uphold the
initial determination "for reasons different from or additional to those given
in the determination" (as was required under Rule 30(1) of the Asylum and Immigration
Tribunal (Procedure) Rules 2005), nor had notice been given, as soon as
practicable after the parties had been served with the order for
reconsideration, that the respondent wished to ask the Tribunal to consider
"evidence which was not submitted on any previous occasion ... " (as required
under Rule 32(2) of the 2005 Rules). In
particular notice under Rule 32(2) would have been necessary in relation to the
lodging of the passports, and to the apparent evidence given in relation to
them by the respondent's representative as recorded at paragraph 35 of the
designated Immigration Judge's determination.
[12] Secondly, even
if it was open to the designated Immigration Judge to consider the passports
and any submissions based upon them, it was unfair for him to have proceeded to
consider them without adjournment. It
was accepted that, as recorded, when the question of the possible implications
of the passports arose the appellant's representative was given time to consider
the position (in consultation with the appellant) and that on return the
appellant's agent did not ask for any further time or for an adjournment. Nevertheless, the circumstances were such
that the designated Immigration Judge should have adjourned, ex proprio motu. It was obvious that there were investigations
(for example of the South African Embassy), which could have been
undertaken. Reference was made to R v Cheshire County Council ex parte C 1998 ELR 66 and de Smith on Judicial Review of Administrative Action 5th edition at
para. 9-018.
[13] Looking to the
decision as a whole, and in particular paragraph 36, Mr. Devlin submitted
that it could not be said that the questioning of the appellant's nationality based
on the passports was not material to the overall determination. The decision should be quashed, and the
appeal remitted for (further) reconsideration.
[14] Mr. Webster
for the respondent submitted that it could not be said that the designated
Immigration Judge was not entitled to consider the appellant's claim to be a
Zimbabwean national. In circumstances
where the error of law which had been detected in the determination of the
first Immigration Judge involved a failure to make any clear and proper
findings in fact, there was no limit either express or implied in the remit to
the designated Immigration Judge. Properly
understood the remarks of Latham LJ in DK
(Serbia) v Secretary of State for the
Home Department amounted to no more than an acknowledgement that the
Tribunal, at the first stage of a reconsideration, could often reasonably be
expected to use its powers to direct that the submissions or evidence in that
reconsideration be restricted to one or more specified issues. Power so to direct was to be found in
Regulation 31(4) of the 2005 Rules.
There had been no such directions in the present case. It was plain that the whole of an appeal
could, absent restrictive directions, be reconsidered. Reference was made to AA v Secretary of State for
the Home Department 2007 1 WLR 3134.
In any event, it was accepted by Latham LJ, and by the appellant, that
findings could be reassessed in light of new evidence which the Tribunal
allowed to be received. In so far as the
question of nationality was reconsidered, this was prompted by the passports
which had been lodged without any objection.
So doing, the appellant's agent could be taken to have waived any
objection based on the absence of notification under Rules 30(1) or 32(2),
neither of which were referred to in the grounds of appeal. It was in any event not clear in the circumstances
that either rule was necessarily engaged.
The passports had been referred to before, and the question of the
appellant's credibility (including relative to the circumstances in which the
passports had been obtained) had always been an issue.
[15] Further, as to
the question of fairness, Mr. Webster submitted that the designated Immigration
Judge who gave time to consider the question which had been raised, and to whom
no motion was made for further time or for an adjournment, was reasonably entitled
to proceed as he did. He had no
obligation to adjourn ex proprio motu. R v
Cheshire Council ex parte C was concerned with a different question; in that case a motion to adjourn having been
made.
[16] Finally, Mr.
Webster submitted that, in any event, nothing in the designated Immigration
Judge's consideration of the passports or his consideration of the appellant's
claim to be Zimbabwean could be said to have been material. It was essential to her claim, regardless of
her nationality, to prove that the events had happened in Zimbabwe, causing her to flee, as she
described. It was clear that the reasons
why the designated Immigration Judge could not accept this aspect of her claim
were those to be found in paragraphs 26 to 33.
This had nothing directly to do with her claimed nationality. In so far as he disbelieved her claim to be
Zimbabwean, it was not clear that this was based to any extent on the passports. Rather, as appeared from the last sentence of
paragraph 35, it was the result of the view as to her credibility which had
already been reached on the core aspects of her account. He made no finding that she was a South
African national.
[17] Having
carefully considered the issues raised in this appeal we have come to the view
that it falls to be refused.
[18] In the first
place, we are not persuaded that it was not open to the designated Immigration
Judge to consider the question of the appellant's claimed nationality. On the face of it, the remit to the second
stage of the reconsideration was open-ended, the Tribunal having decided that
the first Immigration Judge had failed to make clear and proper findings in
fact. In short, what was decided was that
in those circumstances "the evidence had to be re-heard afresh". In our view paragraph 14.4 of the Practice
directions - designed to ensure that, at least generally, any decision at the
first stage of a reconsideration about a previous error of law is not "departed
from or varied" at the second stage - does not have the significance contended
for in this case. In any event, we think
the reference to the appellant in paragraph 1 of the reasons given by the
Tribunal at the first stage of this reconsideration was, in context, no more
than a narration of the appellant's claim to be a Zimbabwean citizen. That said, we see force in the submission
that ordinarily the Tribunal on any "reconsideration", however widely based,
should not, at least without good reason, seek to question findings previously
made which could not be said to have been affected by the material error of law
which has led to the appeal being reconsidered.
Although it may not always be easy in practice to draw the line as to
which findings were and which findings were not so affected, this, we are
inclined to think, is the thrust of the remarks made by Latham LJ in DK (Serbia) v Secretary of State for the Home Department. Be that as it may, it is perhaps enough to
note for present purposes that it was recognised in that case, and was accepted
(subject to one caveat) on behalf of the appellant before us, that it would be
open to a designated Immigration Judge at the second stage of a reconsideration
to question previous findings on the basis of any new evidence which was
allowed to be presented. As to the
caveat (that even then there would have to be some error of law underlying the
relevant findings) there is in our view no support in DK (Serbia) v Secretary of State for the Home Department
for that contention, and we are not persuaded that it is soundly based. In the present case it seems clear that such
reconsideration as there was of the appellant's claim to be Zimbabwean was
prompted by the acceptance into process for the first time of the relevant
passports, both apparently ex facie
valid. No objection was taken on the
appellant's behalf to the lodging of the documents. In these circumstances we consider that the
appellant must be taken to have waived any right to found on any apparent
absence of notice under Rule 32(2) (or indeed under Rule 30(1) - if applicable,
which we are inclined to think is at least open to question). We do not accept, incidentally, that on a
fair reading of para. 35 of the determination the designated Immigration Judge
could be said to have recorded (far less accepted) "evidence" from the
respondent's representative about the passports, as opposed to a submission to
the effect that the respondent was not to be taken to accept that they were false.
[19] Further, we
are not persuaded, on the basis of the information before us, that the
designated Immigration Judge can be said to have acted unfairly by considering
the question of her claimed nationality in light of the apparent question
raised by the passports which had been lodged.
Despite having been given further time to consider the question with the
appellant and to take her instructions, there was no information before us to
suggest that it was then claimed, as part of any objection made after the
adjournment for lunch, that the appellant and her agent needed further time to
consider the matter or to make further enquiries of any kind. No motion to adjourn was made. Instead, on the face of it, although the
appellant's agent complained about the change of position he appeared content
to found, in seeking to allay any concerns about this matter, on the
appellant's knowledge of Zimbabwe and on the fact that she was a
Ndebele speaker (see e.g. para. 20). In
these circumstances, we cannot accept the submission that the designated
Immigration Judge had a duty ex proprio
motu to adjourn. Nor is it a submission
which gains any support from R v Cheshire County Council ex
parte C.
[20] In any event,
we are unable to accept, having carefully considered the determination as a
whole, that any error in the designated Immigration Judge's consideration of
the passports or of his assessment of the credibility of the appellant's claim
to be Zimbabwean could be said to have been material to the rejection of the
appeal. It was essential to the
appellant's claim, regardless of her nationality, to prove her account as to
what happened to her husband and herself in Zimbabwe and that these events caused her to
flee to South Africa and leave for the United Kingdom in 2004. It is, we think, abundantly clear that the
reasons why the designated Immigration Judge could not accept her evidence on
these matters (notwithstanding that he appears to have accepted that she had
indeed lived in Zimbabwe - see e.g. para. 32) are those to be
found in paragraphs 26 to 33 of the determination. As previously noted these reasons all related
to features of the account itself and to the consistency with which it had been
maintained. The designated Immigration
Judge's reasoning in these paragraphs (which does not relate at any point to
the question of her nationality) is not impugned in this appeal. Further, while it seems that the question of
whether the designated Immigration Judge could accept that the appellant was
Zimbabwean was at least raised by consideration of the passports, the clear
indications are (particularly from the last sentence of paragraph 35) that
the unfavourable answer to that question (so far as the appellant was
concerned) was reached on the basis of his concerns as to her credibility in relation
to what might be described as her core account.
[21] In these
circumstances the appeal is refused.