P v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Chief Justice |
| Judgment Date | 08 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1640 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No.'s 2004/0059 and 2004/0969 |
| Date | 08 December 2004 |
[2004] EWCA Civ 1640
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lord Justice Clarke
Lord Justice Rix
Case No.'s 2004/0059 and 2004/0969
HCX608852002
Mr. Manjit S. Gill QC and Mr Isaac Maka (instructed by Sultan Lloyd Solicitors) for the appellant 'P'
Mr. Rick Scannell (instructed by Paragon Law) for the appellant 'M'
Mr. Steven Kovats (instructed by the Treasury Solicitor) for the Respondent
This is the judgment of the Court:
Introduction
We heard these two appeals together. We did so because they raised similar issues. In both appeals the Appellant appeals against a decision of the Immigration Appeal Tribunal ("IAT"). In both cases the IAT reversed a decision given by an Adjudicator who had allowed the Appellants' appeal against the Secretary of State's refusal to grant asylum. The appeal to this Court by P is on asylum and human rights grounds. The appeal by M is on asylum grounds alone.
The appeals are with the leave of Brooke LJ. He gave leave on the grounds that they raised issues of general public importance and that the Court of Appeal needed to give authoritative guidance on the points raised.
The essence of both Appeals is that the Appellants had a decision in their favour by an Adjudicator, which was correct as a matter of law and supported by the evidence that had been presented to the Adjudicators, and that the appeals of the Secretary of State should not have been allowed by the IAT. The respective decisions of the Adjudicators should therefore be restored.
P had a decision from an adjudicator that:
(a) she was entitled to asylum in this country because she had a well-founded fear of persecution if she were to be returned to Kenya because of the violence that both she and her children had suffered over the years at the hands of her husband; and
(b) for her to be returned to Kenya would contravene section 6 of the Human Rights Act 1998 (" HRA") because her return would contravene Articles 3 and 8 of the ECHR.
M also had a decision in her favour from an Adjudicator that she was entitled to asylum in this country. It was based upon her fear that she would be genitally mutilated by her father, who is a member of a violent religious sect that practices genital mutilation, if she were to be returned to Kenya
Both P and M contend that there is a lack of state protection of women in Kenya that amounts to discrimination that is due to entrenched societal attitudes towards Kenyan woman. In both cases it is contended that the Appellant had the necessary well-founded fear of persecution for reasons of membership of a particular social group within the meaning of Article 1(A) of the 1951 Refugee Convention relating to the Status of Refugees ("the Refugee Convention").
The issue of whether the Appellants belong to a "particular social group", namely Kenyan woman, for the purpose of Article 1(A) of the Refugee Convention, was initially central to both appeals. However, shortly before the hearing of the appeals it was conceded by the Secretary of State that the respective decisions of the IAT, that the Appellants did not belong to a "particular social group" for the purposes of Article 1(A), were flawed. In addition, in P's appeal, it is conceded that the approach of the IAT as to "sufficiency of protection" was also unsustainable.
Although the Secretary of State has made these concessions, he contends that the decision of the IAT in the case of P can be upheld. This is because (a) the conduct relied on does not amount to torture and (b) she could safely return to live with her children in a different part of Kenya. The Secretary of State also contends that, even if the determinations of the IAT in both cases are quashed, the correct order for this Court to make is that the cases should be remitted to the IAT for a fresh hearing. This would be on the grounds that the Adjudicators' decisions were also flawed and that this court should not deprive the Secretary of State of his right to have an appeal properly heard by an IAT.
The Statutory Rights to Appeal
Before proceeding to consider the facts and arguments on the individual appeals, it is important to identify the respective roles of the IAT in relation to a decision of an Adjudicator and of this Court in relation to a decision of the IAT. The statutory provisions make it clear that the IAT is essentially an appellate body. At the relevant time, it had the power to allow an appeal because of an error of fact by an Adjudicator in addition to its power to do so in the case of an Adjudicator making an error of law. (In respect of all decisions made after 31 March 2003 and appeals determined by Adjudicators after 8 June 2003, appeals now lie only on points of law: the Nationality, Immigration and Asylum Act 2002 s.101; Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (SI 2003 No. 754); Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) (Amendment) (No. 2) Order 2003 (SI 2003 No. 1339).
Paragraph 22 of Schedule 4 of the Immigration and Asylum Act 1999 ("the 1999 Act") provides:
"(1) … any party to an appeal … to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.
(2) The Tribunal may affirm the determination or make any other determination which the adjudicator could have made."
It is to be noted that the 1999 Act does not expressly state whether an appeal from an Adjudicator may lie on points of fact. The language of paragraph 22 is in general terms. However, the Immigration and Asylum Appeals (Procedure) Rules 2000 (now superseded by the Immigration and Asylum Appeals Procedure Rules 2003) deal with appeals to Adjudicators and to the IAT. Rule 18(4) provides:
" An application for leave to appeal shall be made by serving upon the Tribunal the appropriate prescribed form, which shall –
(c) identify the alleged errors of fact or law in the adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal"
And it is common ground that the appeal can be on the facts.
Paragraph 23 of Schedule 4 of the 1999 Act (as in force at the relevant time) established that there should be an appeal from the IAT to the Court of Appeal. It is in the following terms:
"If the Immigration Appeal Tribunal has made a final determination of an appeal … any party to the appeal may bring a further appeal to the (Court of Appeal) on a question of law material to that determination"
The Subesh Case
In Subesh and others v Secretary of State for the Home Department [2004] EWCA Civ 56; [2004] Imm. A.R. 112 the Court of Appeal gave guidance as to the proper approach to be taken by the IAT when hearing appeals as to facts. Mr. Kovats, who appears on behalf of the Secretary of State, has very helpfully analysed that case. We gratefully adopt his analysis of the approach adopted by the Court in that case which is as follows:
a) "The first instance decision is taken to be correct until the contrary is shown" (paragraph 44);
b) The appellant before the IAT, if he is to succeed, "must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. … The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category" (paragraph 44, see also paragraphs 46 and 53);
c) This approach is not a function of jurisdiction but of the principle of finality of litigation (paragraphs 25, 26, 40 and 48);
d) This approach "is not confined to appeals on disputed issues of fact which the judge below has resolved by reference to oral testimony" (paragraph 42);
e) It is a separate point to note that, pragmatically, the IAT (like any appeal court) will give due weight to the advantage that the Court below can be presumed to have obtained from relevant oral testimony (paragraph 41) (see also paragraphs 37 and 46); and
f) The judgment in Subesh should not be read like a statute (paragraph 49).
Laws LJ stressed that the immigration appeals process is not merely a re-run, second time around, of the first instance trial. This is because the law recognises an important public interest in the finality of litigation. The would-be appellant does not approach the appeal court as if there had been no first instance decision, as if, so to speak, he and his opponent are meeting on virgin territory.
While being prepared to give full effect to the judgment in Subesh as to any appeal on issues of fact, Mr. Kovats submits that the position is different in relation to appeals on issues of law. He contends that if the Adjudicator has misdirected himself as to the law, then the IAT is under none of the inhibitions identified in Subesh. We accept that this represents the correct position with one caveat: the fact that an error of law can be identified does not mean that the decision is necessarily flawed. Even if the IAT identifies an error of law at first instance, the IAT should not allow...
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