R v Grant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE |
| Judgment Date | 11 August 2005 |
| Neutral Citation | [2005] EWCA Crim 1089 |
| Docket Number | C5/2005/0929 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 August 2005 |
[2005] EWCA Crim 1089
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Keene
C5/2005/0929
MR B BEDFORD (instructed by Sultan Lloyd Solicitors, Birmingham B10 OUN) appeared on behalf of the Applicant
This is a renewed application for permission to appeal from a decision of the Immigration Appeal Tribunal ("the IAT"), dated 12th December 2004, whereby the IAT allowed an appeal by the Secretary of State against a decision of an adjudicator, dated 5th November 2003. The adjudicator had rejected the applicant's claim under the Refugee Convention, but had upheld one based on Article 3 of the European Convention of Human Rights.
It seems, if one turns to the facts, that the applicant had entered the United Kingdom in June 2003. She claimed to come from one of the small minority clans in Somalia, the Bajuni, and she described an assault by Hawiye militia, one of whom raped her. This was the immediate cause of her flight to the United Kingdom. The adjudicator accepted that she came from Somalia, but he rejected her claim to come from the Bajuni clan. He also rejected her account of an assault by Hawiye militia. He found that she probably came from the small Indian community in that country. He also found that she had left because of domestic violence at the hands of her husband. He clearly had very considerable doubts as to her credibility.
The adjudicator concluded that there was no real risk to her life if she were returned to Somalia, but he then went on to deal with Article 3. He said this at paragraph 35 of his decision:
"What is the reality here if the appellant is returned? She may or may have her mother's home to return to. There is insufficient evidence on the point to decide definitively. On the one hand I form the view that her mother helped her escape and is probably still in Somalia. On the other hand the only evidence is the appellant's statement and that is silent on the matter. The appellant has been here four months and there is no evidence of any contact with the mother. Bearing in mind the standard of proof, and that any doubt must be resolved in the appellant's favour, I find that the appellant does not have a secure home to return to with her family in Somalia.
36. She will in any event, have been wholly disowned by her husband and cannot realistically be expected to return anywhere near him. That would leave her as an internally displaced person, but with no clear clan affiliations to help her, and she may well end up in an IDP camp where conditions, as was recognised in Case Number '11', would breach Article 3. In addition she has with her a young daughter who would also face appalling conditions, and probably no more education. Medically the appellant is not in good health as the medical report shows, and whose condition will deteriorate if returned."
He consequently concluded that it would be a breach of Article 3 to return her.
On the Secretary of State's appeal the IAT rejected an application on her behalf to adjourn because of a case listed for hearing in mid-February about Somalia. I need not take more time in relation to that application.
On the substance of the appeal the IAT found that the adjudicator had given inadequate reasoning for his conclusion as to Article 3. Moreover, it said the finding that the applicant did not have a secure home to return to was not supported by the evidence. At paragraph 38 the IAT said this:
"Having comprehensively disbelieved the claimant on the evidence that she has put forward, there is no material on which the adjudicator's conclusion on Article 3 can properly be based."
The tribunal went on to note that it had become clear during argument that the case for the applicant was that a single woman with a child would be at risk on return to Somalia, and it commented as follows:
"… Mr Bedford [counsel] was unable to point to any background evidence which said that somebody in the position of the claimant, a single woman with a child, would be at real risk on return to Somalia."
Consequently it allowed the Secretary of State's appeal.
That decision is now challenged on a number of grounds. Mr Bedford, who has appeared this afternoon on her behalf as he did before the tribunal, has abandoned two of the six grounds of appeal and particularly focuses upon grounds 3, 4 and 5.
In relation to ground 3 it is said that the tribunal erred in law, in...
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Subject Index
...93R v Graham-Kerr (1988) 88 Cr App R 302,[1988] 1 WLR 1098.............................. 31, 33R v Grant [2005] EWCA Crim 1089 ..........3 00R v Hamilton and Mason [2003] OJ No. 532(SCJ) (varied [2004] OJ No. 3252 (Ont. CA)..........................................................................
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