N v Secretary of State for the Home Department [C5/2005/2063]
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE WALL,Lord Justice Pill,SIR CHRISTOPHER STAUGHTON |
| Judgment Date | 22 June 2006 |
| Neutral Citation | [2006] EWCA Civ 1012 |
| Docket Number | C5/2005/2063 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 2006 |
[2006] EWCA Civ 1012
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Wall
Sir Christopher Staughton
C5/2005/2063
[AIT No. HX/11903/2004]
MR M FORDHAM (instructed by TRP Solicitors, 6 Lee Bank Business Centre, 55 Holloway Head, BIRMINGHAM, B1 1HP) appeared on behalf of the Appellant.
MR I MANN (instructed by The Treasury Solicitor, London WC2B 4TS) appeared on behalf of the Respondent.
This is an appeal against a decision of the Immigration Appeal Tribunal prepared on 30 July 2005, in which an appeal by the appellant, N, against the decision of the Secretary or State of 20 May 2004 refusing to vary his leave to enter was dismissed. The hearing was by a single immigration judge. Permission to appeal has been granted by a single Lord Justice on a consideration of the papers. The immigration judge dismissed the appeal, both on asylum grounds and human rights grounds, and it is accepted that the two go together. The emphasis has been on Article 1A(2) of the Refugee Convention, and on the risk to N upon a return to Libya.
The appellant is a citizen of the Libyan Arab Republic, and is 22 years old. He entered the United Kingdom illegally on 25 April 2001 and applied for asylum five days later. He was granted exceptional leave to remain until December 2001. Since his arrival, he has married a Libyan citizen and has a daughter.
The judge heard oral evidence from the appellant and considered in-country material placed before her. She gave a correct self-direction as to the standard of proof required. This is another case which turns on the construction of a judge's determination and reasons. The judge set out the appellant's case in some detail. He said that he comes from Tripoli, where he was associated with a group of like-minded young people concerned with religion, charity and education. At the mosque he had regular discussions with the other youths. In October 1996 he was arrested and detained for three days. On his release he continued with his activities, and in November 1996 he was arrested and detained in prison for just over a year. He was interrogated, and occasionally ill-treated, during his detention.
He did not leave Libya after his release, although he felt uncomfortable. He claimed that in 2001 he learned that the authorities had twice visited his house looking for him. He decided to take the risk of leaving and stowed away on a commercial ship which sailed to Malta, where he remained for two months before coming to the United Kingdom on a false passport.
The judge set out findings of fact:
"24. The appellant claims he was arrested in October and November 1996 because he was part of a group of youths at his local mosque that had criticised the Qadhafi regime. Whilst his first arrest resulted in a three-day detention, he claims that on the second occasion he was detained for over a year and that he was ill-treated whilst in detention. All this is consistent with the background information as to the situation in Libya in 1996/97 and it may well be true.
25. Nevertheless, even on the assumption that the appellant's account is wholly credible, he remained in Libya for over 4-12; years after his release and whilst it is plausible that he was kept under surveillance, he was not approached by the authorities at any time during that period. As for the events of January 2001, it is not clear why the authorities would attend his house twice looking for him, save that the appellant claims that he had been critical of Qadhafi at his new mosque. However, as the appellant asserts that he spoke only to those he trusted within the mosque, it is unlikely that the authorities would have come to know of his remarks. Moreover, if he was under surveillance as asserted the authorities would have known that he was not at home when they came to his house, in which event one can only wonder why they so clumsily alerted the appellant to their interest!".
Mr Fordham, for the appellant, submits, and I accept, that, when the judge used the expression in paragraph 24, "it may well be true", it amounts to an acceptance of the appellant's credibility on the points considered in that paragraph. Equally, however, when the word "unlikely" is used in paragraph 25, and doubt cast upon the authorities attending his house, it is clear – and indeed from a later finding – that the judge had considerable doubts about the credibility of the appellant in relation to the circumstances of his leaving Libya in 2001.
The judge made the following findings (paragraph 28) :
"Looked at in the round, I accept that the appellant may, whilst in the mosque, have voiced occasional criticisms of the Qadhafi regime but I am not satisfied that this would have come to the attention of the authorities or that, even if it did come to their attention, that it would have resulted in his arrest. Indeed, I am not satisfied that the appellant has given an accurate and reliable account of events in January 2001, particularly as his explanation is vague and lacks detail. Moreover, I bear in mind that the Appellant has not undertaken any political activity or indeed, any activities outside the mosque.
The relevant conclusions appear at paragraphs 30 to 32:
"30. In ME (Risk – Failed Asylum Seekers – Hassan) Libya CG [2003] UKIAT 00200, the Tribunal held that: 'It is plain that people who are suspected of serious involvement with anti-Libyan political groups are at risk in the event of their return …'. The conclusions in ME (Libya) were recently expanded in MA (risk from any political activity) Libya [2004] UKIAT 00252. In that decision, the Tribunal acknowledged that: 'the evidence is that the authorities in Libya are deeply suspicious and that even now anything but the most fleeting political activity might be enough to create a risk of serious ill-treatment'.
31. However, even in the knowledge that the Qadhafi regime can be volatile, I take the view that the appellant's activities cannot be described as being 'serious political activity' and I am not satisfied that the appellant is a radical Islamic supporter. Indeed, even on the assumption that the appellant's account is entirely credible, his activities between November 1997 and January 2001 are relatively low level.
32. Consequently, I am not satisfied to the relevant standard that the appellant has any reason to fear the Libyan authorities on his return. On the totality of evidence before me I find that the appellant has failed to discharge the burden of proof of having a well-founded far of persecution for a Refugee Convention reason and I find that his removal would not cause the United Kingdom to be in breach of its obligations under the Refugee Convention".
Findings are then made under Articles 2, 3 and 8 of the ECHR.
The case of ME cited by the judge is a country guidance case. MA is not. The approach to country guidance cases was considered in this court in R (Iran) & Ors [2005] EWCA Civ 982. Brooke LJ, giving the judgment of the court, stated at paragraph 27:
"It will have been noticed that Ouseley J said that any failure to apply a [country guidance] decision unless there was good reason, explicitly stated, for not doing so, would constitute an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. This suggestion has now been repeated and adopted in paragraph 18.4 of the AIT Practice Direction. We have no hesitation in endorsing that approach. It would represent a failure to take a material matter into account".
Thus the judge was obliged to follow the decision in ME. In that case the tribunal, Ouseley J presiding, was considering a Libyan case. They stated in the determination and reasons of the tribunal, paragraph 20:
"It is plain that people who are suspected of serious involvement with anti-Libyan political groups are at risk in the event of their return".
That is the sentence cited by the judge. Later in paragraph 20 it is stated:
"The examples of people being seriously ill-treated all appear to relate to those who have been involved, or at least seriously suspected of being involved, in serious political activity or are radical Islamic supporters. We recognise that the absence of such evidence is not positive proof that a returned asylum seeker would be safe, but it must show that the risks are not as real as some of the background material might at first suggest".
While she did not cite it, I have no doubt that the judge also had that statement in mind.
MA was another Libyan case in which counsel for the applicant made submissions about the meaning of the expression "serious political activity". The tribunal, Mr Batiste VP presiding, but with one common member, Mr Perkins VP, as the constitution in ME, stated at paragraph 13:
"Generally there is no such risk unless the returned asylum seeker is linked with some political activity".
The tribunal went on to state, and part of the paragraph is that cited by the judge, paragraph 14:
"The decision in ME does not and was never intended to suggest that only people who are involved in particular activities to a high degree would be at risk on return. Each case must be considered on its own merits. The evidence is that the authorities in Libya are deeply suspicious and that even now, anything but the most fleeting political activity might be enough to create a risk of serious ill-treatment. We are happy to provide this classification".
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