Sd (Expert Evidence)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge |
| Judgment Date | 17 July 2008 |
| Neutral Citation | [2008] UKAIT 78 |
| Court | Asylum and Immigration Tribunal |
| Date | 17 July 2008 |
[2008] UKAIT 78
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Senior Immigration Judge Gill Designated Immigration
Judge French
For the Appellant: Mr. E. Wilford, of Counsel, instructed by the Refugee Legal Centre (RLC).
For the Respondent: Ms. J. Isherwood, Senior Home Office Presenting Officer.
SD (expert evidence) Lebanon
Where an expert refers the Tribunal to cases in which his expertise has been accepted or acknowledged or in which he has received praise, he must, at the same time, refer the Tribunal to any cases which he is aware of and which may detract from what is said about him in the cases he has referred to. Failure to place before the Tribunal such material in an even-handed way may reflect on the weight to be given to the evidence which is the subject matter of the expert's report(s).
This is the reconsideration of the appeal of the Appellant, a national of Lebanon born on 17 October 1964. She arrived in the United Kingdom on 9 May 2004 and was granted entry on a six-month visit visa until 20 October 2004. She claimed asylum on 1 September 2004 with her child as her dependant. On 16 March 2005, the Respondent made a decision to refuse to vary the Appellant's leave to enter the United Kingdom and to refuse to grant asylum. The Appellant appealed against this decision. Her appeal was heard on 20 June 2005 before Immigration Judge Cohen, who dismissed her appeal in a determination promulgated on 5 July 2005. On the application of the Appellant, the Tribunal ordered reconsideration on 19 July 2005. The first-stage of the reconsideration took place on 22 December 2005. The Tribunal decided that there was a material error of law in the determination of Immigration Judge Cohen, but stated that it was unable to complete the reconsideration on 22 December 2005, because further oral evidence would be necessary.
The second stage of the reconsideration of the Appellant's hearing took place on 11 July 2006 before Immigration Judge Bartlett and Immigration Judge Markham David. In a determination promulgated on 27 July 2006, the Tribunal dismissed the Appellant's appeal.
On 5 December 2006 and by a Order of the Court of Appeal, the Appellant's appeal was allowed and remitted to the Tribunal, for the reasons given in the Statement of Reasons, which reads:
“1. The Appellant is a citizen of Lebanon, a Christian and a single parent of a child born out of wedlock.
2. The Appellant entered the United Kingdom on a visitor's Visa in May 2004 and claimed asylum on 1 September 2004 before expiry of her leave to enter. She appealed against the Respondent's decision of 16 March 2005 to refuse to vary leave to enter which was accompanied by a reasons for refusal letter of the asylum claim of the same date.
3. At the subsequent appeal, the AIT found at paragraph 32 that:
“ The objective material overall is indicative of a reasonable degree of likelihood that the Appellant would be at risk of substantial harm or of being the victim of honour killing if she returned to live with her family and brothers in the small village at which she resided …”
4. The AIT, however, dismissed the appeal stating that:
“ On the basis of the evidence as we assessed it, it would not be unsafe, unreasonable or unduly harsh for the Appellant to enter and relocate to a part of Lebanon other than the village where her family resides…”
5. The AIT therefore found that the Claimant could internally relocate within Lebanon so that she would not be found by her family.
6. In dismissing the claim, it is accepted that the AIT erred in law for the following reasons:
i. The AIT did not take into account the events surrounding the Israeli invasion of Lebanon in the period between 12 and 19 July, during which time the determination remained pending. These events were relevant to the issue of internal relocation for the Appellant and her child with regards to whether internal relocation was a reasonable and safe expectation in light of the ongoing conflict and the consequences for the welfare of the Appellant and her child.
ii. The AIT did not fully engage with the expert report of Dr. Alan George dated 18 May 2005 which stated that internal relocation would not guarantee the safety and the anonymity of the Appellant as a single parent.
7. Therefore, for the reasons stated above, the Respondent concedes that this amounts to an error of law ……”
The appeal was then listed for hearing before the Tribunal on dates including 26 April 2007 and 1 October 2007. On 1 October 2007, it was listed before Senior Immigration Judge Jarvis who adjourned the case and directed that it be re-listed for hearing. Senior Immigration Judge Jarvis made the following observations and directions:
“UPON hearing Ms E Storey of the Refugee Legal Centre for the Appellant, who requested an adjournment by reason of the fact that Mr Bandegani, Legal Representative who has conduct of the matter for the Appellant, has been taken ill and is unable to leave his home, and that he has with him the Appellant's file, (a letter to that effect arriving with us after we had concluded the hearing), and there being no objection from Ms J Isherwood Presenting Officer, we adjourned the hearing to a date to be fixed with the following observations and directions.
ISSUES FOR RECONSIDERATION:
1 On 5 December 2006, an order was made, by consent, in the Court of Appeal, allowing the Appellant's appeal and quashing the determination of the Tribunal dated 11 July 2006 and issued on 27 July 2006. The matter was remitted to the Tribunal for reconsideration.
2 At the hearing on 26 April 2007 before the Tribunal it was agreed that the order of the Court of Appeal was to be interpreted as holding that there had been a material error of law on the part of the previous of the Tribunal so that the Tribunal would next move to the second stage of the further reconsideration. It was further agreed that the primary findings of fact and credibility in relation to the Appellant's account, as found by the panel of the Tribunal that decided the appeal in the determination issued on 27 July 2006 are to stand. On 26 April 2007, the Tribunal noted the agreed material facts to be:
• The Appellant is not married
• The Appellant is a national of Lebanon
• The Appellant has a son who was born out of wedlock in 2004
• The Appellant is of the Christian faith
• The Appellant is in contact with her former partner who is said to be in the Lebanon
• The Appellant is at real risk in her home area where she is in fear of being a victim of an honour killing at the hands of her family members by reason of her having given birth to a child outside wedlock, such a fear being well-founded.
3 In addition to the above and to the fear of being a victim of an honour killing, it is accepted by the parties that it is the Appellant's case that she also holds a genuine subjective fear that her former partner will take her child away from her and that he will be permitted to do so by the law in the Lebanon.
4 The further substantive hearing is by way of full further second stage reconsideration in order that all the relevant material facts may be found in relation to all matters and issues, both subjective and objective, going to internal relocation within the Lebanon and more particularly to Beirut, and to include receiving written expert evidence and perhaps also oral expert evidence from Dr George and from Mr Abed Awad, the latter to provide evidence on relevant aspects of Lebanese family law. It is likely that there will also need to be up to date oral evidence given by the Appellant.
5 In the light of the findings as to relevant fact, the Tribunal will then consider and decide the issue of risk on return, including whether the Appellant would be at real risk on return to the Lebanon if required to relocate to Beirut from her home area, for all or any of the feared reasons or any other relevant reasons.
6 On 28 June 2007 Directions were given for the filing and service of expert evidence by the Appellant which have not been complied with.”
On 9 May 2008, this case was listed for hearing before Senior Immigration Judge Gill. Unfortunately, inadequate arrangements were made for the hearing, in consequence of which the hearing had to be adjourned. At this hearing, the Appellant was represented by Ms. G. Loughran, of the RLC, and the Respondent was represented by Ms. Isherwood, who sought to withdraw the Respondent's acceptance of the finding that the Appellant is at real risk of being a victim of honour killing at the hands of members of her family in her home area. Senior Immigration Judge Gill ruled against Ms. Isherwood. Senior Immigration Judge Gill observed that the Tribunal (in the determination promulgated on 27 July 2006) had found that the Appellant was at real risk of being a victim of honour killing if she returned to live with her family and brothers in the small village at which she had resided an hour's drive from Beirut (see paragraph 32 of the determination), that the Tribunal had dismissed the appeal only because it found that the Appellant would be able to relocate in Lebanon, that the case was remitted by the Court of Appeal on the basis of the Statement of Reasons and that it was clear from the Statement of Reasons that the Respondent did not take issue with the finding that the Appellant was at real risk in her home area. In these circumstances, Senior Immigration Judge Gill concluded that it was too late for the Respondent to take issue with the Tribunal's finding that the Appellant was at real risk of being a victim of honour killing in her home area. It would be unfair to allow the Respondent to do so.
It is plain from what we have said above that the...
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