R XHELOLLARI v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NEWMAN |
| Judgment Date | 05 November 2002 |
| Neutral Citation | [2002] EWHC 2451 (Admin) |
| Docket Number | CO/2518/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 November 2002 |
[2002] EWHC 2451 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Newman
CO/2518/2002
MISS J WOOD (instructed by White Ryland) appeared on behalf of the CLAIMANT
MR S WILKEN (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Tuesday, 5th November 2002
Burton J granted permission to enable the claimant to challenge a decision of the Immigration Appeal Tribunal, dated 26th February 2002, refusing leave to appeal a special adjudicator's determination dated 17th December 2001 because he considered "it to be arguable that the Special Adjudicator, whose professionalism has already been rightly criticised by the Immigration Appeal Tribunal, applied the wrong standard of proof. No other ground is arguable."
Special Adjudicator's determination and reasons
The claimant is an ethnic Albanian from Mitrovica who alleged that he had a well-founded fear of persecution due to his ethnicity and also because of his political opinions. He claimed that he had been an active member of the Legality Party in Kosovo. He alleged that should he be returned to Kosovo, there was a reasonable likelihood he would be persecuted for a Convention reason. He also alleged that his return would breach his human rights under the European Convention of Human Rights.
The claim fell into two parts: the risk derived from his ethnicity and the risk derived from the political opinions he claimed he had espoused and, so far as relevant, still held.
There could be no dispute that the burden was on the claimant to establish his claim to a reasonable degree of likelihood, and to establish that if returned to Kosovo he would be persecuted for a Convention reason or that his human rights would be infringed.
In paragraph 15 of the determination and reasons the Special Adjudicator expressed the position in what one can regard as the conventional way:
"Case law indicates that the burden of proof is on the appellant, and that the standard of proof is as laid down in the case of SIVAKUMARAN 1988 IAR P147 … This point is amplified in the case of KAJA 1995 IAR P1; namely that the appellant must demonstrate a reasonable degree of likelihood that if returned to his country, he would be persecuted for a Convention reason. Thus, it has been established that the onus and standard of proof is upon the appellant to establish a justification for international protection."
In paragraph 17 the Special Adjudicator put the matter thus:
"As stated above the onus of proof is upon the appellant to show that he has a current fear of persecution in his country of origin or habitual residence and that there is a reasonable risk of persecution if he is returned to Kosovo."
Miss Wood, who appears for the claimant, correctly, in my judgment, makes no point about the marginal alteration of language from "a reasonable degree of likelihood" to "a reasonable risk", but in paragraph 33 the Special Adjudicator stated this:
"I do not believe that the appellant has met the burden of proof required to satisfy me that there is a reasonable risk of persecution if he were to return to Sri Lanka. I do not believe on a balance of probabilities that the appellant is at risk if returned to that country."
In paragraph 34 she stated:
"Given that the appellant has not met the burden of proof required to satisfy me that he has a well-founded fear of persecution if he were to return to Kosovo, I cannot see that there is any reasonable likelihood that he would be at risk of persecution if returned to Kosovo, or that on a balance of probabilities that anyone is seeking him out in Kosovo. I did not believe the allegations of the appellant that he was a prominent Albanian intellectual."
As to the manifest confusion which, in my judgment, appears from paragraphs 33 and 34, the Immigration Appeal Tribunal, when refusing permission to appeal, stated:
"It is obvious that paragraph 23 [that is plainly a reference to paragraph 33] of the Adjudicator's determination is a word processing error. This paragraph does not belong in this determination and the Adjudicator should have been more careful in proof reading her determination. However, this error on the part of the Adjudicator cannot by itself justify grant of leave as the totality of the determination demonstrates that the Adjudicator applied the correct standard of proof and focused upon the right country of return."
The reference to the matter being "a word processing error" I take simply as being a reference to the obvious confusion between Sri Lanka and Kosovo. It does seem likely that the paragraph, at least in that respect if not in its totality, could have been lifted from a determination in respect of a claim in connection with threatened return to Sri Lanka which had been merely transferred to this part of the determination and reasons in this case which related to Kosovo.
The criticism, however, which is made of paragraph 33 by Miss Wood is not limited to the reference to Sri Lanka; it is to the inconsistency between the expression of the standard of proof in the first sentence in the correct form and a reference to the standard of proof on a balance of probabilities, which is not correct, in the other sentence which comprises paragraph 33. One trusts that that is not a word processing error; indeed, if it is on anybody's word processor then for good reason the sooner it comes off the better.
But the Tribunal also concluded, first, that the factual findings made by the Adjudicator based on her assessment of the credibility of the claimant were reasonable, stated clearly and were adequate to meet the requirements, and, secondly, her conclusion on the need for international protection was correct in law and on the facts, as were her findings on the sufficiency of protection and the internal flight option (see paragraph 6 of the IAT reasons).
Miss Wood submits that the Tribunal erred in its conclusion as to the significance of paragraph 33, and also that the Tribunal erred in taking into account credibility findings and the sufficiency of protection and the availability of internal flight. She submits that such issues were irrelevant in this case. If the position correctly analysed is that there was a case for the Special Adjudicator having applied the wrong standard of proof, she submits that that is so fundamental that it is irrelevant to have regard to the other parts of the Adjudicator's finding. In effect, the position, she submits, is such that the determination and reasons should simply not be allowed to stand when a claimant has been so prejudiced by an error of law. Put another way, justice requires that it should be manifest that the correct standard of proof has been applied by an adjudicator.
Further, Miss Wood submits that the findings on credibility and sufficiency of protection and internal flight cannot be separated from the application of the wrong test in connection with the standard of proof.
Looking at paragraph 33 on its own, I am unable to conclude what standard of proof the Special Adjudicator applied. I regard the reference to Sri Lanka as a slip, no doubt for the...
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