HC v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,MR JUSTICE WILSON,Lord Justice Keene,Lord Justice Scott Baker,President |
| Judgment Date | 20 July 2005 |
| Neutral Citation | [2005] EWCA Civ 893,[2005] EWCA Civ 361 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 2005 |
| Docket Number | C4/2004/2157,Case No: C4/2004/2157 |
[2005] EWCA Civ 361
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Hooper
Mr Justice Wilson
C4/2004/2157
MR M HENDERSON (instructed by Wesley Gryk, London) appeared on behalf of the Applicant
Although there are a number of grounds of appeal in this case, they can, for the purposes of this application for permission, conveniently be divided into three groups.
The first group concerns the issue of the treatment of Palestinians in and about the refugee camps in Lebanon. Mr Henderson criticised the lack of reasoning by the IAT and prayed in aid the decision of the Court of Appeal in Krayem [2003] EWCA Civ 649. In my view, it is arguable that the reasoning of the IAT did not meet the requirements as set out in the judgment of Richards J, with whom the other two members of the court agreed. As a result of that decision of the Court of Appeal, the matter was remitted to the Immigration Appeal Tribunal, who gave a decision on 29th October 2004, both in that case and in other similar cases. The IAT concluded that although Palestinian refugees in Lebanon suffered considerable discrimination, what they suffered did not amount to persecution. From that decision there has been an application for permission to appeal. That was refused both by the IAT and by Laws LJ, who wrote: "I see no legal flaw in the IAT's full and careful decision". Mr Henderson attacks the decision in that case in his skeleton argument and tells us that he anticipates a renewed application for permission in the case of H & others.
It seems to me that if the renewed application for permission to appeal is refused in that case insofar as the finding of persecution is concerned, then that effectively disposes of the attack Mr Henderson makes on that decision.
He then seeks to advance a further argument which was not considered by the IAT in the instant case. Building on the decisions of the House of Lords in Ullah [2004] 2 AC 323, A v Secretary of State for the Home Department [2004] 2 UKHL 56 and R v Immigration Officer at Prague Airport, ex parte ERRC [2004] UKHL 55, Mr Henderson submits that it would be a breach of the European Convention on Human Rights to deport Palestinian refugees to Lebanon because of the discriminatory regime which they suffer.
The second group concerns the decision of the IAT on the issue of internal relocation. In paragraph 12 the IAT found that there was overwhelming evidence that the appellant can relocate in Lebanon. It is arguable that the IAT decided that the appellant could relocate outside the camps and outside the area immediately adjoining the camps. The Tribunal found that this would not cause him undue hardship, nor was it unreasonable to expect him to relocate. They referred to no prohibition on his relocation as a Palestinian refugee.
It seems to me to be arguable that the IAT misunderstood the evidence of Dr George. He was accepting that about half the Palestinian refugees live outside the formal limits of the camps, but he was not, arguably, accepting that Palestinian refugees can relocate anywhere in Lebanon.
The IAT in the next sentence went on to say that it did not accept Dr George's evidence that the appellant could not live in a non-Muslim area. We are not aware whether there are non-Muslim areas within the areas adjoining the camps, and it is arguable that there is no evidence to suggest that the appellant could live in, for example, a Christian area. I think that it is arguable that the IAT reached a wrong conclusion on the question of relocation.
I add only this. Although the appellant did work in Sidon, he did so, so we are told, whilst living at the camp and the shop in which he worked was very close to a camp.
The third group relates to the issue of the appellant's sexual orientation. The IAT deals with that in the second part of paragraph 12. Mr Henderson submits that if one looks at the background material upon which reliance was placed, which is set out for convenience in paragraph 58 and onwards of his skeleton argument dated 29th October 2004, the conclusions which the Tribunal reached about the treatment of homosexuals is not supported by it. Additionally, he criticises the last few words of paragraph 12 when the Tribunal said that the evidence fell far short of establishing that the appellant faced a real risk of persecution if he were to conduct himself with discretion.
Mr Henderson draws attention to a case which was heard after he prepared his original skeleton argument, Z v Secretary of State for the Home Department [2004] EWCA Civ 1578, in which, so Mr Henderson submits, the Court of Appeal held that S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 reflected English law. It is arguable that in the last part of paragraph 12 the IAT erred in law.
While I am satisfied that the appellant should have permission to appeal on the relocation point and on the sexual orientation point, I have some doubts about whether he should have leave on the persecution/human rights point. However, I am persuaded that we should grant permission. However, I hope that should the Court of Appeal on a renewed application refuse to grant permission to appeal in the case of K then the persecution side of the argument will be abandoned. That would leave the Convention argument. Mr Henderson tells us that this issue is to be considered by the Asylum and Immigration Tribunal, although not for at least two or three months. Given the apparent uncertainty of when the matter will be considered, it may be sensible for this case to proceed. However, it may be that the Secretary of State will ask the Court of Appeal to adjourn this matter until the Tribunal has considered the matter.
Finally, Mr Henderson, in paragraph 20, puts forward a somewhat weak ground on Article 8 insofar as the removal of the appellant from this country is concerned. I would not grant permission on that ground.
I agree.
Order: Application for permission to appeal granted. IAT directed to provide the notes of the evidence of Professor George before it. Time estimate for appeal: one day. Constitution of three judges, one of whom may be a High Court judge.
[2005] EWCA Civ 893
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Mark Potter, President of the Family Division
Lord Justice Keene and
Lord Justice Scott Baker
Case No: C4/2004/2157
Mark Henderson (instructed by Messrs Wesley Gryk) for the appellant
Steven Kovats (instructed by The Treasury Solicitor) for the respondent
INTRODUCTION.
The appellant is a Palestinian, born in 1971 in a refugee camp in the Lebanon. He grew up in that camp, known as Camp 100, which is located near the town of Sidon. There is no dispute that he is a homosexual. He is also a Muslim. He left the Lebanon in December 1998 and travelled via Turkey and Morocco to the United Kingdom, arriving here in December 1999. He claimed asylum on arrival in this country. For some reason he was not interviewed until November 2002, but in January 2003 the Secretary of State refused his asylum claim and refused leave to enter.
The appellant appealed against that decision to an adjudicator on Refugee Convention and human rights grounds, but his appeal was dismissed by a determination dated 23 July 2003. He then appealed to the Immigration Appeal Tribunal ("the IAT"), which granted him permission to appeal without limiting the grounds, but the appeal to the IAT was unsuccessful. He now appeals against the IAT's decision to reject his appeal.
THE ROLE OF THE IAT.
The date of the adjudicator's decision is of significance. As it came "on or after 9 th June 2003", section 101(1) of the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") was applicable by virtue of S. 1. 2003 No. 1339, Article 4, and consequently the right of appeal to the IAT existed only on a point of law. This does not seem to have been appreciated by the constitution of the IAT which heard and determined the appeal. In its determination it summarised the challenge to the adjudicator's decision as being
"that the Adjudicator's conclusions are in error of law as well as fact": paragraph 3. (emphasis added)
It proceeded to hear oral evidence and then dealt with the factual issues in the case on their merits, concluding in paragraph 9 that
"the Adjudicator's decision to dismiss the appeal was correct on facts and sound in law."
This court has recently had occasion in Miftari v. Secretary of State for the Home Department [2005] EWCA Civ 481 to emphasise the limited nature of the IAT's jurisdiction under the 2002 Act. That jurisdiction only exists if a point of law is properly before the IAT in the grounds of appeal or, in the case of an appeal by an applicant for asylum, if there is an obvious point of Convention jurisprudence which may avail the appellant: R v. Secretary of State, ex parte Robinson [1998] Q.B. 929. But even when an error of law in the adjudicator's decision has been...
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