The Secretary of State for the Home Department v Yagnesh Devani
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Males LJ,Lady Justice Nicola Davies |
| Judgment Date | 07 May 2020 |
| Neutral Citation | [2020] EWCA Civ 612 |
| Date | 07 May 2020 |
| Docket Number | Case No: C5/2019/1038 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 612
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
Deputy Upper Tribunal Judge Latter
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice Nicola Davies DBE
and
Lord Justice Males
Case No: C5/2019/1038
Mr Nicholas Chapman (instructed by the Treasury Solicitor) for the Appellant
Ms Samantha Broadfoot QC and Mr Raphael Jesurum (instructed by D.J. Webb & Co Solicitors) for the Respondent
Hearing date: 12 February 2020
Approved Judgment
INTRODUCTION
This appeal has a complicated and unsatisfactory procedural history, which it is necessary to set out in some detail before we can get to the issues.
The Respondent, to whom I will refer as Mr Devani, is a Kenyan businessman. He has been in this country since some time in 2009 or 2010, though he has not at any material time had leave to remain.
In 2011 Kenya made an extradition request in relation to serious allegations of fraud against Mr Devani; and a further request, also in relation to fraud, was made in 2013. He challenged both requests, and there were prolonged proceedings in the Magistrates Court culminating in a decision dated 3 September 2014 dismissing his challenge. He appealed to the High Court. By a decision dated 11 December 2015 ( [2015] EWHC 3535 (Admin)) a Divisional Court comprising Leggatt J and Sir Richard Aikens dismissed his appeal.
One of Mr Devani's grounds of challenge to his extradition was that prison conditions in Kenya were such that his return to face detention there, whether on remand or following any eventual sentence, would contravene article 3 of the European Convention on Human Rights. The Divisional Court found that prison conditions in Kenya generally were indeed not “article 3 compliant”. But it upheld the District Judge's rejection of the challenge because the Commissioner of Prisons for Kenya and its Director of Public Prosecutions had written formal letters of assurance to the Home Office stating that Mr Devani would be detained in a particular prison in Nairobi, Kamiti prison, where the accommodation and facilities were article 3 compliant and where he would have a cell to himself: see paras. 165–167 of the judgment of Sir Richard Aikens.
On 16 February 2016, i.e. about two months after the Divisional Court's decision in the extradition proceedings, Mr Devani applied for asylum. The Secretary of State refused the application.
Mr Devani appealed to the First-tier Tribunal. His appeal was heard before First-tier Tribunal Judge Sullivan on 31 October 2018. He was represented by Mr Raphael Jesurum of counsel. The Secretary of State was represented by a Presenting Officer, Mr Wain.
At the hearing Mr Devani relied not only on the Refugee Convention but on a contention that, notwithstanding the assurances relied on by the District Judge in the extradition proceedings, the prison conditions in which he would be detained in Kenya would not be article 3 compliant. He claimed that equivalent assurances given in the case of a Mr Gilbert Deya, and on the basis of which he had been extradited to Kenya, had been disregarded. Mr Deya, who held himself out as an evangelist, was extradited to Kenya to face charges of child trafficking in connection with a “miracle babies” scam.
The evidence about Mr Deya's treatment on which Mr Devani relied was lodged only two days before the hearing, but it seems that Mr Wain did not object to its admission. The evidence was of two kinds. One was a witness statement from Mr Deya's lawyer, a Mr Swaka. FTTJ Sullivan held that she could place no reliance on this, and I need say nothing more about it. The other was a print-out of a story dated 11 August 2017 on what appears to be a Kenyan news website and apparently written by a journalist. The story is headed “Insects keep on biting me, says Preacher Gilbert Deya at Kamiti prison”. The relevant part reads:
“On Thursday televangelist Gilbert Deya complained to the court that the authorities had ignored a deal to detain him in a self-contained cell and instead locked him up in a filthy dungeon with 11 convicts.
Bishop Deya protested at the conditions at Kamiti Prison and accused the Government of not honouring an agreement between the British government and the Director of Public Prosecutions (DPP) that he be accorded special treatment while in prison.
‘There was an agreement that he be given a special single room to himself but when he was taken to Kamiti, he was locked in an extremely dirty room with 11 other people. The room is full of insects which have been biting him ever since’, his lawyer, John Swaka, told Chief Magistrate Felix Andayi.
Deya cut a dejected figure, showing how his circumstances had changed in only six days from high-flying bishop of the Gilbert Deya Ministries in South London to an inmate in the dingy cells of Kamiti Prison, rubbing shoulders with some of the country's hardcore criminals.
According to Deya, the jail conditions compelled him to fight extradition to Kenya since 2004, when his ‘miracle babies’ scandal was exposed.
He complained that he had no access to a washroom and that the wardens only gave him a bucket to relieve himself. He produced the bucket he said he has been using in the prison cells to court as evidence.
‘He stays with the waste bucket in his locked room throughout the night and in the morning, he is forced to wash it with his bare hands without soap or any detergent. When he complained, the officer in charge of the prison told him they could do nothing about it’ said his lawyer, who argued that the conditions Deya has been subjected to do not reflect the agreement that he be treated with dignity while in detention in Kenya.
However, senior assistant DPP Nicholas Mutuku denied knowledge of any such arrangement. He told the court that if Deya was not satisfied with the treatment, he should raise the matter when the hearing of the case begins.
The magistrate said he could not do much to address the situation, only that the authorities should try to ensure that the cells meet international standards for prisons.
…”
I should note that the print-out is on two pages, with the break below the fifth paragraph. As appears below, the FTT Judge appears only to have seen the first page.
The FTT's decision was promulgated on 22 November 2018. The Judge dismissed the asylum appeal, but we are only concerned with her decision on the article 3 claim. As to that, having rejected Mr Swaka's evidence, she said, at paras. 48–49 of her reasons:
“48. The news article at page 1 of the Appellant's bundle (only the first of two pages has been included), dated 11 August 2017, confirms that Mr Deya was being held at Kamiti prison. It sets out his complaint that, in breach of Kenyan assurances, he was being held in a dirty room with 11 other people. It refers to him appearing before a Chief Magistrate. The report is dated within one month of the High Court decision in Deya. Its contents suggest that it was written within 6 days of Mr Deya's return to Kenya. Based on this report and in the absence of anything on its face undermining its reliability and of any evidence from the Respondent challenging the contents of the report I find that on return to Kenya Mr Deya was held in shared prison accommodation for 6 days, in breach of assurances which had been given by the Kenyan government.
49. The High Court in Devani was satisfied in 2015 on the basis of Kenyan assurances that the Appellant would not be held in conditions breaching Article 3 of the 1950 Convention. In light of the subsequent evidence relating to Mr Deya I find that there is a real risk that on return to Kenya the Appellant would not be held in keeping with the Kenyan assurances given to the High Court but would be held in conditions breaching Article 3 of the 1950 Convention.”
Those findings necessarily meant that Mr Devani's appeal, so far as it was based on article 3, should have succeeded. However, the Judge's formal “Notice of Decision” reads:
“51. The Appeal is dismissed (Article 3 only)
52. The Appeal on asylum grounds is dismissed.
53. The Appeal on Article 2, 6 and 8 grounds was not pursued by the Appellant.”
It was common ground before us (though not below), and is in my view obvious, that the word “dismissed” in para. 51 was simply a slip by the Judge and that she meant to write “allowed”. This unfortunate slip is the root cause of the procedural complications that have ensued.
Mr Devani believed, on the authority of a decision of the Upper Tribunal called Katsonga to which I will have to return, that it was not open to him to apply to have the Judge's error corrected under the relevant slip rule (which is rule 31 of the Tribunal Procedure (First-tier Tribunal (Immigration and Asylum Chamber) Rules 2014), and that instead he had to appeal to the Upper Tribunal. An appeal was duly filed on 11 December 2018, taking the single point that FTTJ Sullivan's decision as recorded at para. 51 did not correspond to the findings in paras. 48–49.
Although the Secretary of State was content with the ostensible decision of the FTTJ, she 1 was obviously not content with the decision which Mr Devani was contending that she meant to make. If his appeal succeeded, the result would be that that intended decision would be substituted unless she challenged it. The Secretary of State could not appeal, because she...
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