R (AM) (Cameroon) v Asylum and Immigration Tribunal
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,Lord Justice Rix,Lord Justice Hooper,Lord Justice Waller |
| Judgment Date | 21 February 2007 |
| Neutral Citation | [2007] EWCA Civ 131 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2006/0031 |
| Date | 21 February 2007 |
[2007] EWCA Civ 131
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE STANLEY BURNTON
CO/6616/2005
Lord Justice Waller, Vice-President of the Court of Appeal, Civil Division
Lord Justice Rix and
Lord Justice Hooper
Case No: C4/2006/0031
Mr Rabinder Singh QC and Ms A Weston (instructed by Messrs Browell, Smith and Co) for the Appellant
Mr Martin Chamberlain (instructed by the Treasury Solicitors) for the Respondent
Hearing dates: 5th and 6th December 2006
This is an application for permission to appeal the decision of Stanley Burnton J. by which he refused permission to the appellant to apply for judicial review against a decision of an immigration judge, Mr Sacks.
The application raises an issue of considerable importance: Can an application for judicial review of the decision of an immigration judge succeed even though a High Court judge has, pursuant to section 103A of the Nationality, Immigration and Asylum Act 2002 [“the 2002 Act”], dismissed on paper an application for a reconsideration of a Tribunal's decision on an appeal against a decision of the Secretary of State for the Home Department (“SSHD”) refusing an asylum or human rights claim? By virtue of sub-section (6) of section 103A the decision of a High Court judge “shall be final”.
Mr Sacks, on an appeal from the refusal of the appellant's asylum and human rights claims by the SSHD, refused the appellant permission to call evidence by means of a telephone link from the Cameroon and refused to adjourn the appellant's hearing of her appeal notwithstanding her absence due to illness and the lack of any effective representation. Mummery LJ sitting with Wilson LJ adjourned the application for permission to appeal the decision of Stanley Burnton J to a Court consisting of three Lords Justices. An extension of time is also sought. I would grant that extension.
Although the SSHD was served as an interested party, he was not represented at the hearing. At the end of the first day of the hearing we asked Mr Chamberlain to see whether the SSHD wished to make any submissions about the possibility of a fresh asylum claim being made. No such submissions were forthcoming. Mr Chamberlain expressly conceded that this Court should not take into account this possibility when resolving the issues in this application.
It is my view, for reasons which I shall now give, that permission to appeal should be granted, that permission to apply for judicial review should be granted and that this Court, as presently composed, should, after further argument, decide whether or not to grant the orders requested by the appellant.
I start by setting out the facts, as drawn from the contemporaneous documents and from witness statements. There are disputes about what happened. The Respondent does not accept the allegations of procedural impropriety but “does not propose to defend the claim on that basis” at the permission stage.
AM was born an 'anglophone' Cameroonian on 26 Dec 1966.
According to AM, in October 2001 police come to her home searching for her husband, saying that he was a wanted man. Because AM would not say where her husband was, she was taken to a police station where she was beaten and interrogated by Francophone police. She was pregnant at the time. After a month, she was transferred from the police station to a prison. According to AM, she was treated in this way because of her husband's political activities for the SCNC, an Anglophone opposition party seeking independence for anglophone Cameroon.
AM claims that, with the assistance of a prison supervisor, she escaped detention while acting as an unpaid domestic for the chief of the prison at which she was detained. Shortly thereafter she fled Cameroon for the Ivory Coast where she was reunited with her husband and children. On 22 June 2002 she gave birth to her youngest child. She lived and worked there without any right of residence. In January 2003 during fighting as part of the ongoing insurgency, rebels in the Ivory Coast burnt AM's home. On 6 January 2003 AM arrived in the UK under control of an agent and on 22 January 2003 she claimed asylum.
On 4 Feb 2003 AM submitted her “statement of evidence form” and statement. She was interviewed by the SSHD nearly a year later on 16 January 2004.
On 7 July 2005, over a year later, AM was served with the SSHD's decision refusing her asylum and human rights claims. The letter made clear that the SSHD did not accept that the appellant's account was credible. On any appeal AM's credibility would be a central issue.
On receipt of the decision on about 9 July, Browell Smith, her solicitors, granted themselves funding to represent AM before the AIT and prepared the necessary appeal papers.
Alex Bell, a case worker in the Immigration Department, was given conduct of the case. He has been a caseworker involved with immigration matters since 1992.
AM told Mr Bell about two witnesses living in Cameroon, one a barrister, who could support her account of what had happened to her. Mr Bell concluded that the most effective way of presenting the evidence of the two witnesses was by a live telephone link from Cameroon. Mr Bell in a statement written in August 2005 describes the difficulties which he was to encounter in his attempt to present the evidence in this way. Having been told that the Tribunal had no facilities for a telephone link, he had made further enquiries. His statement reads, in part:
“8. I understand however that the telephone conference facility was available at the County Court. The County Court is located in the same building as the AIT and it is on the same floor. I therefore made enquires with the AIT regarding the use of the County Court facility but my request was hindered. I wrote to the county court but I did not receive a reply. I telephoned Field house. I was told that installing telephone conference facility was an accommodation issue and was asked to write to the ECO for advice but I did not get a reply.
9. Because I did not get satisfactory replies from the AIT and the County Court I made an application to the Legal Service Commission (LSC) to fund the installation and connection of the telephone conference facility. Funding was granted in full”
Importantly, that funding was not granted until 9 August.
On 15 July 2005 the AIT notified AM that her appeal would be heard on 11 August 2005, with a Case Management Review Hearing (“CMRH”) to take place on 28 July 2005.
On 27 July 2005 Browell Smith wrote a letter to the AIT requesting further time for the lodging of evidence. On 28 July 2005 at the CMRH a request was made for telephone conference facilities in order to call oral evidence by telephone link. Mr Sacks, an Immigration Judge, refused the application.
Katie Fischer, who identifies herself as KFX in her notes attended the CMHR on 28 July. Her note reads as follows:
“…
Attendance at CMRH:
Immigration Judge: Sacks
Clerk: Colin Walsh
HOPO: McSween
KFX confirming address, acting and no interpreter present.
Both parties agreed not suitable to float.
Do we have chronology – confirmed no, but will submit.
Do we have skeleton argument – confirmed no, but will submit.
KFX handing over letter that had been sent to court [presumably letter of 27 July] and was provided to me by the clerk before the hearing. Immigration Judge read out request and asked HOPO for comments- none made.
KFX raising issue of telephone conference with Immigration Judge – initial query as to what further information could be obtained that was not in the CIPU report! Explaining that the individual had personal knowledge of our client's circumstances in the Cameroon and that he had in fact applied for bail for our client whilst in prison. Immigration Judge explained he had not dealt with this issue before and adjourned to check whether the court had the facilities. Asked if I knew the time distance – confirmed I did not.
Clerk returned and said likely could be carried out using facilities from the county court – but they can not make international outgoing calls and therefore would have to receive a telephone call in.
In absence confirmed to HOPO the details of the barrister and law firm.
Immigration Judge returned to state that the answer was no – that there were no facilities set up with Cameroon like there was re Nigeria. That there were standard directions in existence on this point and that there was no means by which we can verify the identity/credibility and authenticity. Can not be done and if it was done we would have to pay. If give evidence must be here before us.
KFX putting to Immigration Judge that the identity of the individual could be checked by the British Embassy and we could telephone link from there. He could provide his passport to the embassy and evidence of qualifications. If this court does not have the facilities we could transfer the matter to Bradford.
Immigration Judge confirming that the telephones in court can not link from GPO and GPO verify this is usually between two solicitor firms in the UK. KFX advising that the individual in question worked for a solicitor firm – could the contact be carried out through that means. No – he should file a sworn affidavit if he wants to at the embassy.
Any witnesses – potentially individual from Cameroon if we can get funding.
Immigration Judge confirmed that he would need advance...
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