HK v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Neuberger,Lord Justice Jacob,Lord Justice Chadwick
Judgment Date20 July 2006
Neutral Citation[2006] EWCA Civ 1037
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2005/1805
Date20 July 2006
Between:
Hk
Appellant
and
Secretary of State for The Home Department
Respondent

[2006] EWCA Civ 1037

Before:

Lord Justice Chadwick

Lord Justice Jacob and

Lord Justice Neuberger

Case No: C5/2005/1805

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Mr A L McGeachy and Mr J F McMahon

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Nicholas Armstrong (instructed by— Messrs Glazer Delmar) for the Appellant

Ms Kate Grange (instructed by Treasury Solicitor) for the Respondent

Lord Justice Neuberger
1

This appeal, which has been conspicuously well argued on both sides, highlights the very difficult task faced by Immigration Judges when they are called upon to make findings of fact, in circumstances where there is no direct factual evidence other than that given by the appellant himself, and a lack of background information or of general experience upon which the Judges can safely rely. The appeal also throws sharply into focus the difficult question of when it is appropriate for this court, which can only interfere with a decision of an Immigration Judge or the Asylum and Immigration Tribunal ("the Tribunal") on a point of law, to remit a decision which ultimately turns on questions of fact.

The procedural history

2

The appellant, whom I shall refer to as HK, is a member of the Temne tribe and a citizen of Sierra Leone, where he was born some 22 years ago. On 10 May 2002, he left that country and arrived in the United Kingdom, where he claimed asylum five or six days later.

3

That asylum application has taken a somewhat tortuous and lengthy course. Having been interviewed on behalf of the Secretary of State on 24 June, HK was refused asylum and he was ordered to be removed to Sierra Leone. His appeal was dismissed by an Adjudicator on 4 February 2003, but that decision was remitted by the Tribunal on 17 October 2003. A decision by a fresh Adjudicator on 26 February 2004 again resulted in HK's appeal being dismissed, but that decision was also remitted by the Tribunal on 9 February 2005.

4

On 10 May 2005, the third hearing of HK's appeal took place before the Tribunal, consisting of Mr A L McGeachy and Mr J F McMahon. That hearing resulted yet again in a dismissal on 29 June 2005, against which the Tribunal refused HK permission to appeal on 27 July 2005. However, Brooke LJ and I gave him permission to appeal to this court on 13 December 2005.

The evidence of HK

5

HK's evidence was given, in the usual way, partly by reference to answers he gave to the Secretary of State on his asylum application, partly in the form of written statements and partly orally. I begin by setting out that part of his evidence which is not in dispute.

6

HK was born and brought up in Kambia in northwest Sierra Leone. His father was, to use his words, "a political man" who worked in some capacity in or with the government for five or six years from 1977. In 1982, when the government fell from power, his father became a businessman. In 1995, rebels attacked Kambia, and invaded the family home. HK's mother was killed, one of his sisters was raped, and his father and another of his sisters disappeared. HK himself was injected with drugs, ill treated in other ways, and forced to join the rebels with another sister.

7

After three or four years, HK and his sister were released and returned home, where they were looked after by a neighbour. In late 1998 or early 1999, HK joined a football team in Freetown where he lived with the coach. However, when rebels entered Freetown on 6 January 1999, he escaped and returned to his village where he remained for some five weeks. The village was attacked again, and he spent the next two or so years as a refugee with Guinean soldiers (apart from one month temporarily back in his village) . He returned to his village at the beginning of 2002, and lived there for just over a year. In February 2002, he went to Bo district in the south of the country, which he said was some seven or eight hours' journey away. He went there as he believed that it had a football team, which he hoped to be able to join.

8

At this point, HK's evidence becomes controversial. While in Bo district, he said he was attacked by a group of young men of the Mende tribe. He said that they were in their twenties, and that they targeted him because of his father, whom they described as a "greedy man", "stupid" and "foolish". HK's evidence suggested that they knew of his father's involvement in politics under a previous regime; and that they realised that he was his father's son because his surname was uncommon.

9

HK said these members of the Mende tribe took him into the bush where they walked for two days. They stopped at a point where he noticed some bones on the ground. He also noticed three leaves in a curious formation. One of the men, he said, then cut him three times on the left side of his chest, and threatened to cut his throat. He said that the men then dug a hole "and forced me to put my penis into the hole. There were poisonous ants crawling all over the place and I sustained many bites". He said that the men then sang a song saying that he was going to join their society, known as the Wunde, which he believed was a group which terrorised others.

10

According to HK, he was then left alone in the bush tied up for some ten hours. At the end of that time, he says that a man came and told him in the Temne language that the members of the Mende tribe intended to kill him as a sacrifice, but that he would help HK to escape by loosening his bonds. He did so, and HK says that he then took several weeks to return to his village through the bush. At his village, he hid the scars on his chest because, he said, if they were discovered, his life would be "in extreme danger". He said that if he was "caught by members of the Wunde", "they would know from the scars on my chest I was not a full member and that I had escaped".

11

HK went on to say that he got in touch with a friend called Amadu, to whom he explained that "I was very afraid of the Wunde… and he confirmed that I had every reason to be afraid". Amadu, he said, told him that he could not remain in Sierra Leone and, with his assistance, HK got near Lungi Airport, where he met an old friend of his father's, Mr Kamara, to whom he "explained that I was committed to the Wunde society people and that they were looking for me". He said that Mr Kamara told him that he was "in a very dangerous situation", but that he could not stay with Mr Kamara because, if he was discovered, Mr Kamara's "business would be in danger"; HK also said that Mr Kamara told him that he should escape from Sierra Leone, and that Mr Kamara helped him to obtain a passport, as a result of which he boarded a plane to the United Kingdom on 10 May 2002.

The expert evidence

12

Apart from evidence from HK himself, the Tribunal had written evidence in the form of fairly detailed reports from a number of people.

13

13. First, there was a report from Professor Melissa Leach of the University of Sussex, who has a doctorate "based on two years of field work research in Sierra Leone in the late 1980s", and who made subsequent visits to that country during the following decade. She said that she remained in close touch with what was going on in that country while working in neighbouring Guinea. She considered herself "well placed to comment on [HK's] appeal" and it is noteworthy that one of her books, published in 1994, refers to the Mende in its title.

14

She explained that the Wunde are one of a number of secret societies in Sierra Leone, and that they "control particular spirits which they deploy in rituals" including "initiation rituals held in special parts of the bush". She went on to explain that "virtually all Mende boys and girls are initiated", as well as people who aspire to posts in the Sierra Leone government and administration. She also said that the power of such societies is "deeply respected and feared". She explained that little was known about "precise events and activities except by those who had been initiated" because "initiates are under strict orders not to reveal what they saw in the bush at pain of death".

15

She went on to say that the location of the initiation described by HK and the warning sign of "three leaves on a path" were consistent with her understanding and experience. As to the person who helped HK escape, the evidence that he spoke Temne was, she thought, not unlikely, because "the Bo area… is close to the northern border where Mende country shades into Temne country, and, as I know from living there, it is common to encounter people with one parent of each or who speak both languages". She went on to say that HK's evidence "that he saw skulls and body parts in the bush" was consistent with the reputation of the Wunde "for performing human sacrifices and for using body parts in a variety of rituals". She thought the three leaves HK said he saw on the path were consistent with the signs used by the Wunde.

16

While she could not say anything useful about HK having to place his penis in a hole, Professor Leach could "confirm that biting ants have long been a stock in trade form of torture and punishment among Mende people". While she could not "comment authoritatively on the precise scarification", Professor Leach thought that the suggestion that the three scars on the left side of HK's chest resulted from a Wunde initiation ceremony was "entirely plausible".

17

Professor Leach went on to "opine that scars only on one side would mark [HK] out as someone who had escaped halfway through an initiation ritual". She described this as "a...

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