A v Secretary of State
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE KEENE,LORD JUSTICE MAY |
| Judgment Date | 21 January 2003 |
| Neutral Citation | [2003] EWCA Civ 175 |
| Date | 21 January 2003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2002/1464/A |
[2003] EWCA Civ 175
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice May
Lord Justice Keene
C1/2002/1464/A
MR J GILLESPIE (instructed by Bindman & Partners) appeared on behalf of the Appellant
MR GERARD CLARKE (instructed by Treasury Solicitor) appeared on behalf of the Respondent
Tuesday, 21st January 2002
aJUDGMENT
I will ask Keene LJ to give the first judgment.
This matter comes before the court as a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal ("the IAT") having been refused on the papers but then adjourned to the full court by Rix and Dyson LJJ after an oral hearing.
The case raises issues under the 1951 Refugee Convention and under the European Convention of Human Rights ("ECHR") because of section 65 of the Immigration and Asylum Act 1999 ("the 1999 Act"). The applicant is a citizen of Jamaica and is now aged 44. She arrived in this country by air on 4th November 1998 and was given six months leave to enter as a visitor. Subsequently, after overstaying her leave, she claimed asylum but the claim was refused by the Secretary of State.
She appealed unsuccessfully to an adjudicator both on asylum grounds and under Articles 2 and 3 of the ECHR and then appealed to the IAT. That appeal was dismissed by the IAT by a decision dated 19th March 2002. The Appellant's Notice was only filed with this court on 12th July 2002 and an issue arises as to whether an extension of time is required and, if so, whether it should be granted. I deal with that matter first of all.
Grounds for leave to appeal to the Court of Appeal were submitted on the applicant's behalf to the IAT by the Immigration Advisory Service, who had been acting for her. Those were submitted on or about 28th March 2002 and were received by the IAT on 2nd April. According to the applicant herself, she had before then told the Immigration Advisory Service that she wanted to look for a new solicitor and had seen on 25th March 2002 a solicitor with Bindman & Partners, Ms Cornes. The applicant asked Bindmans to submit grounds of appeal. On 2nd April 2002, the same day as the Immigration Advisory Service grounds were received by the IAT, Bindmans faxed a letter to the IAT telling them that they were now instructed instead. Two days later, on 4th April, Ms Cornes sent an application for leave to appeal to the IAT, again by fax, enclosing the grounds of appeal.
On 26th May 2002 Bindmans received a refusal from the IAT for leave to appeal to the Court of Appeal dated 24th May. Clearly the IAT was aware that the Immigration Advisory Service was no longer acting for the applicant. However, the determination by the IAT related to the grounds of appeal submitted by the Immigration Advisory Service and not to those submitted by Bindmans. On counsel's advice Bindmans wrote to the IAT President, Collins J, on 30th May requesting a review of the Tribunal's decision. The President replied the following day, saying that there was no power to review such a refusal but he would ask Dr Storey, who had chaired the IAT in these proceedings, to consider the grounds and see if he would have granted leave. If so, that, said the President, would perhaps help persuade the Court of Appeal. By letter dated 28th June 2002 Bindmans were sent a further determination in which Dr Storey stated that he would not have granted leave on the grounds submitted by Bindmans.
As I have indicated earlier, an application to the Court of Appeal for permission to appeal was submitted to this court on 12th July. Apparently the view had been taken by those advising the applicant that the 14 days ran from Dr Storey's later decision letter. It is clear that before the IAT refused leave the first time on 24th May grounds of appeal had been lodged by Bindmans and yet were not dealt with by the IAT. Nonetheless, technically, time for applying to this court ran from that first determination. Mr Clarke for the Secretary of State emphasises that it is important that time limits laid down should be observed in asylum and immigration matters. He contends that the applicant's advisers should have been aware that the IAT had no power to review, as Collins J had pointed out in his reply of 31st May. I entirely see the force of that, but the course pursued by Bindmans once they appreciated what had happened was perhaps an understandable one and certainly in a case such as this the applicant ought not to suffer as a result. She, in my view, should not be prejudiced by the confusion which has taken place. I therefore would grant the necessary extension of time. I would also, for reasons which will become clear in due course, grant permission to appeal and I deal therefore with this matter as an appeal.
I turn to the facts of the case. The appellant, Miss A, comes from the Tivoli Gardens area of West Kingston in Jamaica, a poor urban area which according to the evidence is dominated by a gang. It is also regarded as being an area loyal to the Jamaica Labour Party ("the JLP"), which is the main opposition party. The adjudicator seems to have accepted the general credibility of the appellant, certainly insofar as she was dealing with events affecting her and her family.
She testified that on 23rd December 1994, after a quarrel, her 13-year old daughter was shot and killed by a gang member in Tivoli Gardens. The appellant reported this to the police and also gave them the name of the gang member responsible. This has been the source of her troubles. Friends told her that she should not have done that, in particular should not have given the name to the police, but should have said that the killing had been carried out by a member of the rival party, the People's National Party ("the PNP"). Three weeks later on 14th January 1995, her 21-year old son was also shot and killed after he had threatened to see that his sister's killer went to prison.
On 17th January that same year gang members came and told the appellant that she was an informer and they threatened her.
She moved out of West Kingston about one week later, going to stay in a non JLP part of Kingston where she stayed for some six months. She then moved to a number of other places which were not JLP areas, but she found that she was not welcome in such areas because she came from Tivoli Gardens. I shall return to her experiences during this period later in this judgment.
During this period her brother was also shot by the same gang who had killed her daughter and son. This was in 1996. At the end of that same year her eldest daughter's boyfriend, who was a member of the gang, was killed by gunmen and a subsequent boyfriend was shot but survived. The adjudicator did not accept that these 1996 shootings were linked to the appellant but reflected simply the fact that, as he put it:
"This is a very violent area of Jamaica."
The IAT, however, did accept that the 1996 shootings were in some way related to her and her conduct.
The adjudicator accepted that local "dons" and their gangs controlled areas in poor urban communities, but he concluded that no reason for persecution falling within the Refugee Convention had been demonstrated. The threat from the Tivoli Gardens gang to the appellant was because she was seen as an informer. As for the ECHR, the adjudicator found that there was no evidence before him of any attempt to locate her while she was elsewhere in Jamaica over the next four years or so before she left for this country. He concluded that she would not be at significant personal risk in Jamaica outside her own neighbourhood, so that she could settle elsewhere on the island. He was not satisfied that it would be unreasonable to expect her to settle elsewhere in Jamaica and so there would be no breach of her human rights by returning her.
Miss A had not dealt in detail before the adjudicator with the problems which she had suffered in 1997 and 1998 whilst still in Jamaica. But she put in a further statement to the IAT in which she described how she had been vulnerable during that time and sexually abused while she stayed in areas outside her own neighbourhood in 1997 and 1998. She also said that in April 2001 her partner, who was still in West Kingston, had asked a JLP don for her to be forgiven, but he had refused.
Two experts' reports were also put before the IAT. One was from Dr Amanda Sives, a researcher at the Institute of Common Wealth Studies. Her report indicated that Miss A would be vulnerable elsewhere in Jamaica because without employment and outside her own community she would be dependent on the good will of others. The second report was by Sean Roberts of Amnesty International, who confirmed the existence of what are called "garrison communities", like Tivoli Gardens, controlled by a gang loyal to a particular party. He concluded that she would be at risk of violence if she moved elsewhere in Jamaica, but it is fair to say that he gave no detailed basis for that conclusion.
The IAT which regarded the issue in the case as being one of whether there was an internal flight alternative ("IFA") concluded that the evidence did not show that she would be at risk from the Tivoli Gardens gang members if she moved away from her home area. As for the dangers and difficulties from other sources if she moved elsewhere in the island, the Tribunal accepted her account of what had happened...
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