NSONGO LUSALA v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE LAWS,Lord Justice Carnwath,LORD JUSTICE CARNWATH,LORD JUSTICE JACOB |
| Judgment Date | 25 March 2004 |
| Neutral Citation | [2003] EWCA Civ 1982,[2004] EWCA Civ 420 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2003/2190,C4/03/2190 |
| Date | 25 March 2004 |
[2003] EWCA Civ 1982
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 Ward
C1/2003/2190
MR Y ZAHED (instructed by Messrs Duncan Lewis & Co, London E8 2SS) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal dismissing Mr Lusala's appeal from the adjudicator. The adjudicator dismissed his claims for asylum and found that there were no human rights aspects preventing his return to the Democratic Republic of Congo.
When he sought permission to appeal from the adjudicator's decision, the grounds were, as was subsequently noted, not auspiciously well drafted. There is almost a fleeting reference in paragraph 4.1 at page 36 of my bundle to the submission that returnees are risk of inhumane and degrading treatment and torture. It may be, and this may present a difficulty for this applicant, that the appeal did not proceed on that ground. The permission being given at page 33 was simply to allow further consideration to the claim under Article 3 in the light of the finding that the applicant was an economic migrant whose claim was based on an objection to military service. That appeal failed, as I have indicated.
In refusing permission on paper Scott Baker LJ observed:
"There is no arguable error of law in the IAT's decision. It was entitled to conclude on the evidence adduced that the Adjudicator's decision was correct. There was no evidence that the appellant as a returning asylum seeker would be subject to detention or human rights abuse. What may have been put before a different IAT in another case is irrelevant. Your Tribunal decided the case on the evidence submitted to it."
I confess I read the papers and reached the provisional conclusion that that was likely to be correct. But I am persuaded by Mr Zahed's submissions to me that this matter does justify consideration by the full court. The case now sought to be advanced is that a month after the decision in this case was promulgated, the Immigration Appeal Tribunal heard the case of M (DR Congo) [2003] UKIAT 00071. That case went to the Immigration Appeal Tribunal because of a concern that contrasting Tribunal determinations were being made in cases of returned asylum seekers to the Congo. It was thought appropriate for the matter to be considered and clarified.
The result of that clarification is essentially this. Those who are returned but have a military background may face interrogation and detention. Those who have a connection with Goma are likewise subject to special treatment. Those of mixed ethnicity, as is Mr Lusala, will likewise be viewed with more alarm. This applicant falls into each of those three categories and on the review of the material conducted by the Tribunal in M, it was held that it would be wrong to return Mr M.
There is, as I have said, a difference here because the case was not presented in that way to the Immigration Appeal Tribunal, and that may be a fatal weakness. But having regard to the importance of not returning those who face inhumane treatment or torture, and in the light of our obligations under Article 3, it seems to me that this applicant should be entitled to submit that a consistent approach would justify his claims to be permitted to remain here.
I seem to recollect not too long ago taking a similar view in an appeal relating to conflicting ways of dealing with the Nepalese Maoists, and I am sufficiently uncomfortable about the plight of Mr Lusala that I will give permission to appeal. The application is made out of time but the lapse of time is not great. So I extend time and give permission to appeal. I give a time estimate of half a day. Three Lords Justices or a High Court judge if necessary to make the third member.
Mr Zahed asked whether I can do anything to assist him in obtaining legal aid to cover his useful appearance here today. I am not sure that I can, but I can say that he has assisted me, both in his written and oral submissions. I wish him luck in trying to get cover for his appearance. If not, I give him the court's thanks for appearing pro bono.
ORDER: Applications for permission to appeal and an extension of time granted; time estimate of half a day; constitution of three Lords Justices, which may include a High Court judge if necessary to make the third member.
(Order not part of approved judgment)
[2004] EWCA Civ 420
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL
(MR P R MOULDEN AND MR A F SHEWARD)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Laws
Lord Justice Carnwath
Lord Justice Jacob
C4/03/2190
MR Y ZAHED (instructed by Messrs Duncan Lewis & Co, London, E8 2SS) appeared on behalf of the Appellant
MISS LISA GIOVANNETTI (instructed by The Treasury Solicitor, London, SW1H 9JS) Appeared on behalf of the Respondent
I will ask Lord Justice Carnwath to give the judgment on this appeal.
This is an appeal, with permission...
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