Upper Tribunal (Immigration and asylum chamber), 2014-11-07, AA/05461/2010
| Jurisdiction | UK Non-devolved |
| Date | 07 November 2014 |
| Published date | 26 February 2015 |
| Hearing Date | 09 October 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/05461/2010 |
Appeal Number: AA/05461/2010
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05461/2010
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 17-18 June and 9 October 2014 |
On 7 November 2014 |
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Before
THE HONOURABLE MRS JUSTICE SIMLER
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
“AA”
Respondent
(Anonymity Order Made)
Representation:
For the Appellant: Mr R Hopkin, Senior Home Office Presenting Officer
For the Respondent: Mr D Seddon and Mr T Lay instructed by Lawrence Lupin Solicitors
DETERMINATION AND REASONS
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Although this is an appeal by the Secretary of State against a decision of the First-tier Tribunal allowing AA’s appeal on humanitarian protection grounds, for convenience we refer to AA as “the Appellant” and the Secretary of State as “the Respondent” as the parties were originally.
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This appeal is subject to an anonymity order made under rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) that no report or other publication of these proceedings or any part or parts of them shall name or directly or indirectly identify the Appellant. Reference to the Appellant may be by use of the initials “AA” but not by name. References in this Determination to certain other individuals and to certain events has also been anonymised in order to preserve AA’s anonymity. Failure by any person, body or institution whether corporate or incorporate (for the avoidance of doubt to include either party to this appeal) to comply with this order may lead to a Contempt of Court. This order shall continue in force until the Upper Tribunal (IAC) or an appropriate Court lifts or varies it.
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This is the determination of the Upper Tribunal to which both members of the Panel have contributed.
I. INTRODUCTION
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The Appellant is a Rwandan national seeking asylum in the United Kingdom. This appeal arises out of a decision by the Respondent by letter dated 15 March 2010 refusing to grant the Appellant asylum or humanitarian protection but granting him discretionary leave. The Appellant appeals against the refusal to grant him asylum under s.83 of the Nationality, Immigration and Asylum Act 2002.
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The appeal has had a chequered history. The Appellant arrived in the United Kingdom on 27 October 1999 and claimed asylum. This was refused in 2000 but following appeals to an Adjudicator and the IAT his case was remitted for re-hearing. Before the case was re-heard, in February 2002 the Respondent granted exceptional leave to remain for 4 years until January 2006. On 31 December 2005, the Appellant applied for indefinite leave once again. By letter dated 6 April 2009, the Respondent rejected that application and invoked exclusion from the protection of the Refugee Convention by virtue of Article 1F(a) of that Convention, in that there were serious reasons for considering that he had been involved or complicit in genocide in Rwanda. The Appellant appealed but in June 2009 (just before the appeal hearing) the Respondent withdrew the decision.
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Subsequently, by letter dated 15 March 2010 the decision under challenge was made. The Respondent issued a certificate under s.55 of the Immigration, Asylum and Nationality Act 2006 on the basis that Article 1F(a) of the Refugee Convention applied as there were serious reasons for considering that the Appellant was part of a joint criminal enterprise to perpetrate genocide or crimes against humanity; and/or that he had aided such acts or otherwise assisted the common plan to persecute and exterminate the Tutsi. She refused to grant the Appellant indefinite leave to remain under her policy relating to suspected war criminals and under paragraph 322(5) of the Immigration Rules HC 395 (as amended, referred to as the “IR”). She rejected the claim for asylum under paragraph 336 IR; and humanitarian protection under paragraph 339F IR. However, she granted limited leave to remain in the exercise of discretion having regard to the decision in Brown & Ors v Govt Rwanda [2009] EWHC 770 (Admin) (subsequently upheld on appeal) which held that those extradited to Rwanda would face a real risk of a flagrant denial of justice in breach of Article 6 rights.
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The Appellant appealed against those decisions to the First-tier Tribunal (the “FTT”). In a determination sent on 7 July 2010, Judge Billingham allowed the Appellant’s appeal. He rejected the Respondent’s case on exclusion on the basis that there was insufficient evidence that the Appellant was in a position to influence or encourage the commission of genocide and accepted the Appellant’s case based on humanitarian protection under paragraph 339C (albeit dismissing his appeal on asylum grounds). The Respondent appealed to the Upper Tribunal (“the UT”) which set aside the FTT determination on the basis that the FTT had failed to determine whether (on the wider basis contemplated by JS (Sri Lanka) v Respondent [2010] UKSC 15) the Appellant contributed in a significant way to the ability of the Mouvement Revolutionnaire Nationale pour le Developpement (“MRND”) to pursue its purpose of committing war crimes.
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By a determination sent to the parties on 17 March 2012 the UT allowed the Respondent’s appeal. The UT found that the Appellant was excluded from the protection of the Refugee Convention under Art 1F(a) on the basis of his involvement with the MRND long after he was aware that massacres had occurred preceding the genocide and that the extermination of Tutsis in Rwanda was planned. Having done so, applying s.55 of the 2006 Act, the UT made no decision on asylum/humanitarian protection. The Appellant sought permission to appeal to the Court of Appeal on the basis that the UT had erred in law in finding that he was excluded and in failing to make findings in relation to asylum and/or humanitarian protection.
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Permission to appeal was granted by the Court at an oral hearing on 20 December 2012. At paragraphs [7] to [10] of his judgment giving permission, Richards LJ held:
“7. The first main ground of challenge is that the Upper Tribunal’s conclusions to the effect that the applicant contributed to the genocide were reached without regard to the conclusions reached by the International Criminal Tribunal for Rwanda (“the ICTR”), notably in its judgment in the Bagosora case. Mr Seddon submits that in that judgment, reached on the basis of a very large amount of documentary evidence and witness testimony over an extremely long trial, the ICTR rejected the proposition that the genocide was the result of lengthy planning and preparation prior to 7 April 1994, and did so in the context of a conspiracy charge which was found not proved against very senior people within the MRND. That, it is said, is directly inconsistent with the Secretary of State’s case, effectively accepted by the Upper Tribunal that the applicant’s criminal responsibility for the genocide lay in his involvement in the planning and preparation for it.
8. The fact that Mr Seddon was advancing that line of argument by reference to the Bagosora case was plainly understood by the Upper Tribunal. Reference is made to it at paragraphs 46, 61 and 65 to 66; albeit at the end of paragraph 65 the tribunal referred to the appeal judgment which came out after the hearing and said that it would deal with it below, but did not in the event, as it would seem, deal with it, at least expressly.
9. What troubles me about this issue is that, although the Upper Tribunal was plainly aware of the submission and its potential significance, it did not engage at all with the ICTR’s findings when it came to its analysis and when it reached a conclusion seemingly inconsistent with the ICTR’s conclusion that planning had not been proved. All the more troubling is that it was able to reach that conclusion in relation to the applicant, who was, on any reasonable view, a very much lesser player than the senior figures who were the subject of the charges in the Bagasora case. In the absence of reasoned explanation as to why a different conclusion than that of the ICTR was reached by the Upper Tribunal, one is left with an uneasy feeling that the tribunal may after all have failed to have proper regard to this aspect of the evidence when reaching its conclusion.
10. That is reinforced by a...
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