Manzeke v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date18 June 1997
Date18 June 1997

Court of Appeal

Lord Woolf MR Potter, Brooke LJJ

Bambagu Manzeke
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

A Nicol QC for the appellant

S Kovats for the respondent

Cases referred to in the judgments:

R v Immigration Appeal Tribunal ex parte Senga (unreported, QBD, 9 March 1994).

Toko Mbanza v Secretary of State for the Home Department [1996] Imm AR 136.

Senga (unreported) (12842).

Appeal — allowed by Tribunal against determination of special adjudicator — Tribunal proceeded on basis of error of fact — whether material — the role of the Tribunal in providing guidance to special adjudicators on conditions prevailing in various countries — the proper persuasive value of Tribunal determinations — not to be disregarded by special adjudicators — the importance of consistency in determining asylum appeals. Immigration Act 1971 s. 20: Asylum and Immigration Appeals Act 1993 sch. 2: Asylum Appeals (Procedure) Rules 1996 rr. 16, 17(2), 18(1), 41(2).

The appellant was a citizen of Zaire: he was refused asylum by the Secretary of State. He appealed. His appeal was allowed by a special adjudicator, in part because she concluded he would, on the facts, be at risk on return to Zaire as a failed asylum seeker. The Secretary of State appealed to the Tribunal. The Tribunal allowed the appeal.

On appeal to the Court of Appeal it was correctly submitted that the Tribunal had proceeded on the basis of an error of fact: it had concluded that the special adjudicator had rejected the whole of the appellant's story: in fact she had only rejected part of it. Both the adjudicator and the Tribunal had referred inter alia to Senga, but the adjudicator had apparently ignored the reasoning of the Tribunal in that case and its identification of particular groups which might be at risk as failed asylum seekers, into none of which groups, on the facts, the appellant fell.

The court considered the proper approach to be adopted by special adjudicators to determinations of the Tribunal

Held:

1. In Senga the Tribunal had given careful consideration to the possible risks run by failed asylum seekers returning to Zaire. It was clearly appropriate for reference to be made to that case by both the special adjudicator and the Tribunal. However the special adjudicator had not reminded herself of the categories of returnees identified by the Tribunal or asked herself if, on her factual findings, the appellant would be in a category at risk.

2. The Tribunal followed the analysis made by the Tribunal in Senga and concluded that the appellant would not be at risk from political views that would be imputed to him. Even if the Tribunal had not made an error as to the special adjudicator's assessment of the credibility of the appellant, applying the approach in Senga to the facts, it would have reached the same conclusion.

3. Especially when determining appeals where it was necessary to give consideration to the general situation in particular parts of the world, it was important for the Tribunal, where appropriate, to give its views as to that situation so far as relevant to claims for asylum from that part of the world.

4. Special adjudicators should have the benefit of the views of the Tribunal on such general conditions and absent any changes in circumstances should pay them great attention so that there would be consistency in the treatment of asylum seekers so far as objective considerations were concerned.

The Master of the Rolls: This is an appeal brought with the leave of Schiemann LJ against the decision of an Immigration Appeal Tribunal allowing an appeal from a special adjudicator, who had allowed an appeal from the Secretary of State.

At the outset of the hearing, Mr Kovats, who appears on behalf of the Secretary of State, applied for an adjournment on the grounds that, as a result of the political upheavals that occurred in Zaire, (the country from which the appellant had come to this country via Nigeria), for the time being the Secretary of State was not returning asylum seekers to Zaire. Mr Kovats submits that that made the appeal inappropriate for consideration by this court.

Mr Nicol, who appears on behalf of the appellant, submitted to the contrary, that the appeal would benefit the appellant if the outcome was favourable to him. He had an adverse decision of a Tribunal which could prejudice him if there was any reconsideration of his position and in the circumstances the more appropriate course was for this court to determine the appeal.

As the court had set aside a day for the hearing of this appeal and the case had a long history, we came to the conclusion that the application for an adjournment should be rejected. In doing so the court took into account that while the outcome of the appeal would very much depend on its own facts, the case raised considerations as to the relationship between Tribunals and special adjudicators upon which it might be useful for this court to give assistance which would be of value to special adjudicators and Tribunals in other asylum cases.

The appeal indicates that, regrettably, the determination of asylum issues can take a substantial time. The appellant arrived in this country from Zaire, claiming asylum on arrival, as long ago as 4 June 1990. In March 1995 the Secretary of State refused that application; on 19 July 1996 the special adjudicator, Mrs Farrall, allowed the appeal; on 4 November 1996 the Secretary of State's appeal to the Tribunal, presided over by Mr O'Brien Quinn QC, was, in turn, allowed.

In his notice of appeal on behalf of the appellant, Mr Nicol sets out with admirable clarity and objectivity the matters upon which he relies in support of the appeal. He draws attention to the fact that the Tribunal recorded that, as it saw the position:

‘the respondent was found not to be credible, his whole story of arrest, detention and escape was disbelieved.’

With regard to that statement, the notice of appeal states:

‘The Tribunal proceeded on a false factual premise.’

It then records why the special adjudicator disbelieved the appellant's account of his escape from prison, which the adjudicator says she found totally implausible. The notice of appeal continues by recording that the special adjudicator made no clear finding as to whether she believed the appellant's evidence that he had been beaten every day while detained. However, it...

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