Ms, Mk, and Mt (Sierra Leone) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Lloyd,Lord Justice Ward |
| Judgment Date | 09 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1369 |
| Docket Number | Case No: C5/2009/2569 + 2570 + 2571 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2010 |
[2010] EWCA Civ 1369
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Before: Lord Justice Ward
Lord Justice Lloyd
and
Lord Justice Sullivan
Case No: C5/2009/2569 + 2570 + 2571
[AIT Nos: AA/00253/2007, AA/00249/2007, AA/00261/2007]
Ms Shivani Jegarajah (instructed by Messrs Patricks) appeared on behalf of the Appellant.
Mr Charles Banner (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Lord Justice Sullivan:
Introduction
These are three linked appeals against the determination signed on 8 June 2009 of the Asylum and Immigration Tribunal (Senior Immigration Judge Gleeson and Immigration Judge Grant Hutchinson) (“the panel”), dismissing the appellant's appeals against the Secretary of State's decisions to refuse their claims under the Refugee Convention and the European Convention on Human Rights.
Factual background .
The three appellants are citizens of Sierra Leone. They are not related to each other. They claimed asylum on 5 January 2006. The factual basis of their claims was most unusual and immensely detailed. For present purposes it is unnecessary to rehearse that detail. It is sufficient to note that at the heart of all three claims was the contention that if the appellant was returned to Sierra Leone he would face a real risk of mistreatment at the hands of the Kebbay family, who were influential in Sierra Leone largely because they were related to the President, Mr Kabbah.
In the Secretary of State's reasons for refusal letter dated 1 December 2006 in respect of the appellant MS, paragraph 21 said:
“… careful consideration has been given as to whether or not you have demonstrated a well founded fear of return due to the alleged relationship between Mr Kebbay Junior, Mr Kebbay Senior and the President, Alhaji Ahmed Tejan Kabbah. Despite extensive searches of the information available to the Home Office the only information found is on the website www.embendi.co.za (date accessed 15 November 2006) which confirms that Ishmael Kebbay Senior is the Director General of the Sierra Leone Roads Authority. It is therefore accepted that Ishmael Kebbay Senior is involved in the government of Sierra Leone to some extent but there is not information to suggest that the Kebbay family are in any way related or linked to the President as you have claimed. …“
The appellants appealed, and their appeals were heard before Immigration Judge Thorndike on 30 and 31 May 2007. He heard lengthy oral evidence from all three appellants. Although he recognised that their cases were very unusual, he believed the appellants' accounts and allowed their appeals in three determinations dated 1 June 2007. In those determinations he said that he was satisfied on the balance of probabilities that there was a family relationship between the Kebbay family and the President.
The Secretary of State applied for an order for reconsideration of all three determinations. In each case the Secretary of State's application was to substantially the same effect. When ordering reconsideration, Senior Immigration Judge Waumsley summarised the Secretary of State's grounds as follows:
“1. The Immigration Judge failed to give adequate reasons for accepting the appellant's claims that the Kebbay family were related to Ahmad Tejan Kabbah, the President of Sierra Leone;
2. He failed to give adequate reasons for concluding that the appellants would be at risk from the Kebbay family outside Freetown;
3. He failed to give adequate reasons for concluding that it would be unduly harsh to expect the appellants to relocate to any part of Sierra Leone other than Freetown…”
is no longer relevant.
Pausing there, grounds 2 and 3 were dependent on ground 1. If adequate reasons had been given for Immigration Judge Thorndike's conclusion that the Kebbay family were related to the President, then there were adequate reasons for his conclusion that there would be a risk on return outside Freetown because Sierra Leone is a small country and the Kebbay family had “extensive and high-level connections” there.
As Mr Banner submitted on behalf of the respondent in his skeleton argument:
“…the reconsideration was sought and ordered principally on the basis of the defective reasoning of IJ Thorndike in respect of the relationship between the Kebbay family and the President. This in turn led to defects in the reasoning that there would be a risk on return if the Appellants were to settle outside Freetown, the relationship of the Kebbays to the President being critical to their power and influence in Sierra Leone.”
Having summarised the Secretary of State's grounds, Senior Immigration Judge Waumsley said that he was persuaded, albeit not without some hesitation, that the grounds raised arguable points of law which merited further consideration. He continued:
“These are therefore appropriate cases in which to order reconsideration, limited to the issues raised in the respondent's grounds.”
When the matter came before Senior Immigration Judge Goldstein at a first-stage reconsideration, he concluded that Immigration Judge Thorndike had materially erred in law for the reasons as summarised by Senior Immigration Judge Waumsley, because each of the determinations “suffered from a lack of reasoning such as to be regarded as legally inadequate”. Senior Immigration Judge Goldstein's decision continued:
“Consequently the appeals will now require full consideration on all the issues.”
See paragraph 10 of his decision dated 16 May 2008.
Senior Immigration Judge Goldstein said that the three appeals should continue to be linked, but at the second-stage reconsideration all of the issues would be at large, with none of the Immigration Judges' findings in each of the three determinations being preserved.
The second-stage reconsideration was heard by the panel on 21 and 22 January 2009. Senior Immigration Judge Storey had adjourned the hearing on 10 September to permit further evidence to be given as to the risk on return. The parties were to use their best endeavours to adduce further evidence as to a number of matters. These included:
“i) The nature of the relationship between Mr Kebbay and the then President of Sierra Leone, Tejjan Kebbah (President Kabbah);
ii) Whether Mr Kebbay had been or remained the Director General of the Sierra Leone Roads Authority; …“
See paragraph 16 of the panel's determination.
It is not clear whether any further evidence was provided on issue (i) and if so what that evidence was. In paragraph 11 of its determination the panel said:
“In the Secretary of State's letters of refusal, it was accepted that the Kebbay family had some connection with the President of Sierra Leone. The evidence now before the Tribunal which establishes that the Director General of the Sierra Leone Roads Authority was indeed Mr Kebbay senior does not seem to have been available to the Secretary of State at the date of the decision. “
As Ms Jegarajah pointed out on behalf of the appellants, that paragraph is mistaken in at least two respects, first of all in the refusal letter it was not accepted by the Secretary of State that the family had some connection with the President of Sierra Leone and secondly it was accepted that Mr Kebbay senior was the Director General of the Sierra Leone Roads Authority.
Be that as it may, the panel's conclusion as to whether or not there was a relationship is clearly expressed in paragraph 157 of its determination:
”We accept that the Kebbay family are related to former President Kabbah, who with his party fell from power in January 2008. “
Despite this acceptance of the central issue which had caused Immigration Judge Thorndike's determinations to be remitted, the panel concluded that the appellants' accounts were not credible and dismissed their appeals.
The issues
It is common ground that all three appeals raise the same two issues. Firstly, was Immigration Judge Thorndike's...
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