Upper Tribunal (Immigration and asylum chamber), 2020-08-11, [2020] UKUT 268 (IAC) (AB (preserved FtT findings; Wisniewski principles))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge O'Connor |
| Status | Reported |
| Date | 11 August 2020 |
| Published date | 10 September 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | preserved FtT findings; Wisniewski principles |
| Hearing Date | 16 July 2020 |
| Appeal Number | [2020] UKUT 268 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 00268 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House (Court 5) via Skype for Business |
Decision & Reasons Promulgated |
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On 16 July 2020 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE O’CONNOR
Between
AB
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr H Blaxland, QC and Mr R Toal, instructed by Wilson Solicitors LLP
For the respondent: Mr R Dunlop QC, instructed by the Government Legal Department
Preserving findings of fact
(1) Whether and, if so, when the Upper Tribunal should preserve findings of fact in a decision of the First-tier Tribunal that has been set aside has been considered by the Higher Courts in Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195, TA (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 260 and MS and YZ v Secretary of State for the Home Department [2017] CSIH 41.
(2) What this case law demonstrates is that, whilst it is relatively easy to articulate the principle that the findings of fact made by the First-tier Tribunal should be preserved, so far as those findings have not been “undermined” or “infected” by any “error or errors of law”, there is no hard-edged answer to what this means in practice, in any particular case.
(3) At one end of the spectrum lies the protection and human rights appeal, where a fact-finding failure by the First-tier Tribunal in respect of risk of serious harm on return to an individual’s country of nationality may have nothing to do with the Tribunal’s fact-finding in respect of the individual’s Article 8 ECHR private and family life in the United Kingdom (or vice versa). By contrast, a legal error in the task of assessing an individual’s overall credibility is, in general, likely to infect the conclusions as to credibility reached by the First-tier Tribunal.
(4) The judgment of Lord Carnwath in HMRC v Pendragon plc [2015] UKSC 37 emphasises both the difficulty, in certain circumstances, of drawing a bright line around what a finding of fact actually is, and the position of the Upper Tribunal, as an expert body, in determining the scope of its functions under section 12 of the Tribunals, Courts and Enforcement Act 2007 in re-making a decision, following a set aside.
The “Wisniewski” Principles
(5) In Wisniewski v Central Manchester Health Authority [1998] LI Rep Med 223, Brooke LJ set out a number of principles on the issue of when it is appropriate in the civil context to draw adverse inferences from a party’s absence or silence. These principles are not to be confused with the situation where a party who bears the legal burden of proving something adduces sufficient evidence, so as to place an evidential burden on the other party. The invocation of the principles depends upon there being a prima facie case; but what this means will depend on the nature of the case the party in question has to meet.
DECISION AND REASONS
A. THE ISSUE
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The issue in this case is whether the appellant, a doctor and a citizen of Iraq, is entitled to be recognised as a refugee for the purposes of the 1951 Convention. It is common ground that the appellant would be so entitled but for the operation of Article 1F(a), which provides as follows:-
“F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
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he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes …”
B. THE APPELLANT’S ACTIVITIES AND THE UK’S REACTIONS TO THEM
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It is common ground that, between 1992 and 1994, the appellant worked at the headquarters of Saddam Hussein’s military intelligence agency, Al-Istikhbarat, in Iraq. The appellant was performing his compulsory military service there, as a doctor. He worked at a clinic in the headquarters, treating both military intelligence officers and their prisoners. On occasion, the appellant was also taken to visit camps, where he treated prisoners. The appellant did not seek to leave the Al-Istikhbarat HQ during the term of his military service.
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The appellant left Iraq in December 1995, travelling to Libya, where he worked as a doctor for some four years. He arrived in the United Kingdom in January 2000, having been given entry clearance as a visitor. His leave was subsequently extended. In February 2007, the appellant claimed asylum.
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In January 2011, the respondent’s War Crimes Unit informed the appellant that he had been excluded from the Convention by reason of article 1F(a).
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In March 2013, proceedings were initiated before a panel of the Medical Practitioner Tribunal (“MPT”). The MPT found that the appellant’s fitness to practise as a doctor was impaired by reason of having been an accessory to torture in Iraq. The appellant was suspended from such practice for one year.
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In March 2014, the MPT found that the appellant’s fitness to practise was no longer impaired and his practicing certificate was reinstated. In August of that year, the appellant again applied for leave to remain on the basis of asylum. That application was refused by the respondent in April 2014, with the respondent again concluding that the appellant was excluded from the Refugee Convention by reason of Article 1F(a). The specific basis given for the respondent’s decision was that there were “serious reasons for considering that you have committed crimes against humanity”.
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The respondent, however, granted the appellant limited leave to remain, which led to the appellant being able to appeal against the April 2014 refusal under section 83 of the Nationality, Immigration and Asylum Act 2002, as it then stood.
C. THE APPEAL PROCEEDINGS
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The appeal proceedings have been protracted. This is the third occasion on which the appellant’s case has been considered by the Upper Tribunal.
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In April 2015, the First-tier Tribunal found that the appellant was complicit in a crime against humanity (namely, the torturing of prisoners by Al-Istikhbarat), but that the appellant had a defence of duress. The First-tier Tribunal, accordingly, allowed the appellant’s appeal.
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The respondent appealed to the Upper Tribunal against that decision and in April 2016, the Upper Tribunal allowed the respondent’s appeal and remitted the matter to the First-tier Tribunal.
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A further hearing took place before a differently constituted First-tier Tribunal (“the 2017 First-tier Tribunal”) in February 2017. That Tribunal found there were serious reasons for considering that the appellant had committed crimes against humanity, in that, although the appellant had not tortured anyone, he had provided medical aid to the perpetrators of torture and had treated prisoners in circumstances where, if he not done so, the torture of those prisoners might have ceased. Once again, however, the First-tier Tribunal found that the appellant had a defence of duress and so allowed his appeal.
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The respondent appealed to the Upper Tribunal against that decision. Meanwhile, the appellant brought a cross-appeal. In December 2017, the Upper Tribunal allowed the respondent’s appeal because the defence of duress was not available to the appellant. The Upper Tribunal also found that the appellant’s cross-appeal failed.
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The appellant appealed to the Court of Appeal. He did so on four grounds. The judgment of the Court was given by Hamblen LJ (as he then was): MAB (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 1253.
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The Court dismissed the appellant’s challenge on grounds 1 to 3. The appellant was, however, successful on ground 4, which Hamblen LJ articulated as follows:-
“(4) Ground 4: The facts found by the 2017 FTT were not capable of establishing A's liability for crimes against humanity: (i) they did not show that he had aided, abetted, otherwise assisted in or contributed to crimes against humanity; or (ii) in any event, A's contribution was not of a kind that the drafters of the applicable instruments of international criminal law intended should be criminalised.”
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At paragraph 53 of his judgment, Hamblen LJ noted the evidence that was before the First-tier Tribunal. This comprised the appellant’s screening interview of 2 February 2007; a statement of 22 February 2007; a full asylum interview of 23 March 2007; a further interview of 31 March 2010; a statement of 20 July 2013; and a statement of 15 January 2017 prepared for the appeal hearing. The appellant gave oral evidence at that hearing.
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At paragraph 54, Hamblen LJ recorded the self-direction of the 2017 First-tier Tribunal:-
“54. In relation to the law, the FTT referred to [R (JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15] and [Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54]. The FTT directed themselves in accordance with the principles set out in the headnote in Al...
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