SA (Bangladesh) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson |
| Judgment Date | 18 May 2010 |
| Neutral Citation | [2010] EWCA Civ 710 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 2010 |
| Docket Number | Case No: C5/2010/0061 |
[2010] EWCA Civ 710
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. AA/01122/2009]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Case No: C5/2010/0061
Mr Tony Muman (instructed by Messrs J M Wilson) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
(As Approved)
This is an application for permission to appeal. The application comes before this court in somewhat unfortunate circumstances. Those unfortunate circumstances are as follows.
The appellant proposes to pursue on appeal two new grounds not taken in the tribunal below and not mentioned in the grounds of appeal. Instead the new grounds are first expressed in a skeleton argument which was not sent to the court until yesterday evening and therefore did not come into my hands until two minutes before the start of this hearing. It has to be said that that is not the ideal way in which to bring an application for permission to appeal before this court.
The facts giving rise to this application are as follows. The applicant is a citizen of Bangladesh who was born on 3 November 1974. She is therefore now aged 35. She came to the United Kingdom on 4 December 2006 together with her husband and their two children. She, her husband and children entered this country on a six-month visa. However, they did not leave this country at the expiration of the six-month period. Instead the appellant's husband engaged in some way in the business of organising illegal immigrants arriving in this country. In due course the husband was arrested and prosecuted for the offence of assisting illegal immigration into an EU member state.
On 11 March 2008 the appellant's husband was sentenced to twelve months imprisonment for that offence. Unsurprisingly, the Secretary of State decided to deport the husband to Bangladesh following the completion of his sentence. The appellant's husband appealed against that deportation decision but his appeal was unsuccessful.
The appellant did not initially make any application for asylum to remain in this country. However, on 30 July 2008, whilst her husband was serving the twelve-month sentence for assisting in the arranging of unlawful immigration, the appellant made a claim for asylum. The basis of the appellant's claim was that her husband's nephew, called Shahjahan, was in business with a man called Turan Miah bringing individuals from Bangladesh to the United Kingdom in order to gain employment. The business was unsuccessful. As a result, members of the Awami League asserted that they were owed money and they began to harass the appellant and her family in Bangladesh. This led to violence, and on one occasion members of the Awami League who had come to the appellant's home raped the appellant. As a result of those matters, the appellant and her family left Bangladesh.
The appellant's asylum claim was considered by the Secretary of State. The Secretary of State, in a letter dated 19 January 2009, rejected the appellant's claim to asylum and also rejected the appellant's claim to remain in this country on humanitarian grounds. The basis of the Secretary of State's decision was that he found the account of events given by the appellant to be incredible and he rejected the factual substratum of her claim to asylum.
The appellant appealed against that decision to the Asylum and Immigration Tribunal. The appeal was heard by Immigration Judge Coker on 20 March 2009. The immigration judge promulgated his decision on 23 March 2009. Immigration Judge Coker accepted some of the evidence given by the appellant; in particular she accepted that the appellant had been raped. However, she did not accept that there was any basis for the appellant's fear of persecution in the event of return to Bangladesh. She noted that the last incident, involving Turan Miah and others causing disquiet to the appellant, had occurred in this country two years previously and, given the lapse of time, she did not consider that there would be any continuing danger of persecution in the event of return to Bangladesh.
The appellant was aggrieved by that decision and applied for reconsideration. In due course, Stadlen J in the Administrative Court made an order for reconsideration. The form that the reconsideration hearing would take was considered by the AIT at a hearing on 8 September 2009. At that hearing Senior Immigration Judge Batiste inquired of the parties' representatives whether the facts alleged by the claimant could, if accepted, give rise to a claim for asylum under the 1951 Geneva Convention. The advocates for both parties contended, or accepted as the case may be, that those facts could not give rise to an asylum claim under the 1951 Convention. Accordingly, the Senior Immigration Judge, who took the same view, ordered that the reconsideration hearing should be limited to the appellant's claim for humanitarian protection and her claim under Article 3 of the European Convention on Human Rights. That hearing should be a full reconsideration hearing with oral evidence.
Following that decision by Senior Immigration Judge Batiste a panel convened on 7 October 2009 for the reconsideration hearing. The panel comprised designated Immigration Judge Garratt and Immigration Judge Holt. The panel heard oral evidence on this occasion from the appellant. The appellant was cross-examined. In addition, the tribunal considered the relevant documentation.
The panel came to the conclusion that it did not accept the accuracy of the evidence which the appellant had given. In the course of its decision the panel noted the reasoning of the Immigration Appeal Tribunal when...
To continue reading
Request your trial