CD (DRC) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Rimer,Sir Nicholas Wall |
| Judgment Date | 09 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1425 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2011 |
| Docket Number | Case No : C5 / 2011 / 0918 |
[2011] EWCA Civ 1425
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
[Appeal No: AA/08297/2010]
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Family Division
(Sir Nicholas Wall)
Lord Justice Rimer
and
Lord Justice Jackson
Case No : C5 / 2011 / 0918
Ms Sarah Daley (instructed by Sriharans) appeared on behalf of the Appellant.
Mr Colin Thomann (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
This judgment is in four parts, namely;
Part 1, Introduction
Part 2, The Facts
Part 3, The Appeal to the Court of Appeal
Part 4, Decision.
This is an appeal against a decision of the Upper Tribunal on the ground that the tribunal Judge wrongly failed to recuse himself.
The proceedings under consideration took place in the Immigration and Asylum chamber of the Upper Tribunal and concerned a claim for asylum.
CD is the appellant before this court, but he has at various stages of the story been both appellant and respondent. I shall refer to him as "CD". The Secretary of State is respondent before this court, but she has at various stages of the litigation been both appellant and respondent. I shall refer to her as "the Secretary of State". I shall refer to the Democratic Republic of Congo as "DRC." One opposition movement in the DRC is called Mouvement Uni pour la Republique. I shall refer to this as "MUR". There is an organisation which operates outside the DRC called Alliance De La Patriot de la Refoundation Du Congo. I shall refer to this organisation as "APARECO". APARECO is said to have links with MUR. I shall refer to the Tribunals, Courts and Enforcement Act 2007 as "the 2007 Act".
Section 11 of the 2007 Act provides, subject to certain exclusions, that there is a right of appeal to the Upper Tribunal on any point of law arising from a decision made by the First-Tier Tribunal.
The consequences of a successful appeal to the Upper Tribunal are set out in section 12 of the 2007 Act as follows:
"(1)Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.
(2)The Upper Tribunal—
(a)may (but need not) set aside the decision of the First-tier Tribunal, and
(b)if it does, must either—
(i)remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii)re-make the decision.
…
(4)In acting under subsection (2)(b)(ii), the Upper Tribunal—
(a)may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and
(b)may make such findings of fact as it considers appropriate."
After these introductory remarks I must now turn to the facts.
Part 2. The Facts .
CD is a citizen of the DRC born in June 1982. He is now aged 29. He arrived in the UK on 15 August 2009 and made a claim for asylum. The basis of CD's claim was that whilst in the DRC he had been an active member of the MUR. He had encountered problems from 10 May 2009 onwards. He had been arrested at an event in Kinshasa. He had been detained in Demiap prison for some time. He had been treated harshly. Eventually he contrived to escape and through a rather complicated story which I will not narrate had made his way to England.
The Secretary of State did not believe the story told by CD and rejected his claim for asylum. CD appealed to the Immigration and Appeal Tribunal against that refusal. The appeal was heard by Immigration Judge Thornton at Bradford on 1 December 2009. Immigration Judge Thornton dismissed CD's appeal. In doing so Immigration Judge Thornton expressed disbelief of CD's evidence. He regarded the entire story told by CD to be a complete fabrication. He went on to give reasons for taking such an unfavourable view of CD's evidence.
Undaunted, CD in due course made a fresh claim for asylum. The fresh claim for asylum was based upon the proposition that CD had engaged in activities with APARECO in this country which would have come to the notice of the DRC government and these more recent activities put CD at risk of persecution for a Convention reason in the event of return to the DRC. The Secretary of State accepted that this was a fresh claim since it was based on more recent events than the original claim. However, the Secretary of State rejected that fresh claim. CD appealed to the First-Tier Tribunal. That appeal came on for hearing before Immigration Judge Cruthers on 26 July 2010. CD gave evidence about his political activities in this country. Supporting evidence was given by Mr Ngongo, who was said to be the President of the West Yorkshire branch of APARECO.
The essence of CD's case was that he had been active in MUR before leaving DRC. Since arriving in the UK he had been actively involved with APARECO. CD said that he had taken part in meetings, marches and demonstrations. He produced photographs in support of this assertion. CD also said that he was first secretary of the West Yorkshire branch of APARECO.
Immigration Judge Cruthers was not impressed by CD or by Mr Ngongo as witnesses. He found them both to be evasive. He found much of their evidence to be contradictory and inconsistent. Although the Immigration Judge rejected much of CD's evidence, he did accept that CD was first secretary of the West Yorkshire branch of APARECO and that he had taken part in demonstrations against the DRC government. The Immigration Judge held that CD had undertaken these "anti-regime" activities in bad faith. CD's motive for taking part was simply to bolster his claim for asylum. The Immigration Judge went on to hold that CD's claim to asylum was "just established". The reason for this conclusion was that CD by his activities in this country had successfully generated a real risk of persecution upon return to the DRC.
The Secretary of State was aggrieved by the decision of the First-Tier Tribunal. She therefore appealed with permission to the Upper Tribunal. On 30 November 2010 there was an initial hearing in the Upper Tribunal before Immigration Judge Alis, sitting as a deputy judge of the Upper Tribunal. The purpose of this initial hearing was to determine whether the First-Tier Tribunal had made an error of law such that its decision should be set aside.
As is normal practice, that initial hearing in the Upper Tribunal proceeded on the basis of the documents without any oral evidence. Having considered the submissions of both parties, the deputy judge promulgated his determination on 3 December 2010. He held that the Immigration Judge had made a material error of law. He adjourned the hearing before the Upper Tribunal for the decision to be remade. The deputy judge set out his conclusions in paragraphs 27, 28, 38 and 39 of his determination as follows :
"27. It therefore appears that the Immigration Judge found that he was First Secretary and Mr Ngongo was President of his branch based on a document produced by either the Respondent or Mr Ngongo and their oral evidence albeit the Judge appeared to reject their accounts of what was said to have happened in the DRC.
28. Having regard to those factors and the Judge's assessment on credibility I am not satisfied the Respondent did hold the position claimed but whilst I accept the Appellant's submission on this point I do not agree it shows a material error when I consider whether the Respondent would be at risk because I do not see how this information would necessarily have come to the attention of the 'DRC spies'.
…
38. Having considered all of the above factors I have concluded that although the Immigration Judge carefully considered all of the factors there was a material error because:
a. The Immigration Judge (like his predecessor) found the Respondent lacked credibility;
b. He rejected evidence from both the Respondent and his witness about activities of APARECO in the DRC;
c. There was no independent evidence (as pointed out by him) that APARECO were viewed as a problem in the DRC;
d. There were photographs of the Respondent at demonstrations but there was no evidence that he was anything more of a 'hanger-on' apart from oral evidence from the Respondent and his witness who had both previously been disbelieved;
e. The Judge concluded that the Respondent had joined APARECO (UK) to bolster an asylum claim.
39. His behaviour and the consequences for him had to be assessed in the light of the decisions of YB, BK and SS and in light of the above matters I did not find it reasonably likely that his actions would be brought to the attention of the authorities and for these reasons I find that there was a material error."
On 3 December 2010 the deputy judge issued directions for the resumed hearing. Those directions provided for the matter to be listed for a two hour...
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