The decision

Heard at Field House

APPEAL NO HX48247-2001
On 15 November 2002

AA (Failed Asylum Seeker) Sudan CG [2002] UKIAT 05894


Date Determination notified:

.........7 January 2003.................................


Mr G Warr (Chairman)
Mr F T Jamieson
Mr C A N Edinboro








1. The appellant, a citizen of The Sudan, appeal the determination of an Adjudicator (Miss C M Mather) who dismissed the appellant's appeal against the decision of the Secretary of State to refuse his application for asylum.

2. The appellant was represented before us by Mrs P Maudsley of Counsel instructed by A S Law, Solicitors. Mr J McGirr appeared for the Secretary of State.

3. Leave was granted on the question whether the Adjudicator's credibility findings sufficiently covered the issues in the case.

4. The appellant claimed he had been arrested in 1990 because of his involvement in the Democratic Unionist Party (DUP). He undertook military service between 1992 and 1994. He then absconded. In 1997 he claimed that the authorities attempted to recruit him as a spy. In 1998 he was arrested attempting to leave the country and sentenced to a term of 6 months imprisonment. On a subsequent attempt to leave the country he was detained for 3 months. He finally left Sudan on 13 June 2000 and claimed asylum on the same day in the United Kingdom.

5. The appellant gave oral evidence before the Adjudicator. The appellant's history is fully summarised in paragraph 6 of the determination. The Adjudicator meticulously details the various versions of events given by the appellant. In paragraph 11 the Adjudicator states that she was concerned as to the appellant's credibility. She notes conflicting accounts being given about his claimed arrest in 1997. She found the evidence to be inherently implausible and she gives reasons for her conclusions.

6. The Adjudicator dealt with the attempt to leave Sudan on a false passport. The Adjudicator rejected the suggestion that he was concerned that after his release the security forces would continue to search for him because of his failure to act as a spy for them.

7. The Adjudicator noted the discrepancies about the dates of release from the term of imprisonment that the appellant said he had served. There was a further discrepancy about the time it took for him to have another attempt to leave Sudan. There was indeed a discrepancy about which border he was going to cross. In paragraph 25 of the determination the Adjudicator stated that she did not accept that the appellant had been persecuted in the past for political opinion and that she did not accept that he would be persecuted in the future.

8. Counsel submitted that the Adjudicator had failed to address the major issues in the case and had not rejected the appellant's story in its entirety. Further, the Adjudicator had not put the appellant's account into the context of the objective material. It was apparent from the UNHCR Report in February 2001 that suspected opponents of the regime were beaten and the human rights record of the Sudan was poor. There was a risk of harm to returning asylum seekers as appeared from an expert’s report which had been before the Special Adjudicator compiled by Peter Verney and dated 5 November 2001. Reference was also made to the Home Office Country Assessment and the Tribunal case of Abdullah.

9. Mr McGirr, while acknowledging that the Adjudicator's findings were not as clearly expressed as they might be, submitted that she had made it clear that she had rejected the account of past persecution or the claim that persecution might arise in future in paragraph 25 of her determination. She had carefully gone through the evidence and reached a logical decision. The question of the 1998 prison sentence was covered in the determination at paragraph 26, for example, and the Adjudicator had gone into the matter adequately. It was unnecessary to remit the matter as Counsel had requested as the Adjudicator had gone through the evidence so thoroughly. The evidence had been rejected and accordingly Counsel's reference to the objective material had to be seen in that context. The expert’s report had been compiled in respect of another individual and was somewhat out of date. The Home Office Country Assessment provided more up to date information. Reference was made to a June 2002 Bulletin. The case of Abdullah should be distinguished. In that case the appellant's uncle had been a prominent member of the Umma Party. In this case the appellant's credibility had not been accepted.

10. In reply, Counsel submitted that it had been acknowledged by Mr McGirr that the determination was inadequate. The observation in paragraph 25 was very general and insufficient in the circumstances.

11. At the conclusion of the submissions we reserved our determination. We will not reproduce the Adjudicator's determination herein but, suffice it to say, that the Adjudicator did go through the evidence with great care in paragraph 6 of her determination highlighting various differences in the appellant's accounts as she did so. She then goes through the evidence after paragraph 12 of her determination explaining why she had concerns about the appellant's credibility. It does appear clear to us that on any fair reading of this determination the Adjudicator was rejecting what the appellant had to say and she has given more than sufficient reasoning to support her conclusions. She makes it clear that she did not accept that the appellant had been persecuted in the past as he claimed. It must be recalled that the burden in asylum appeals, light though it is, remains with the appellant and it is plain in our view that the Adjudicator felt that he had not discharged that burden.

12. We regard it as completely unarguable that the Adjudicator failed to have regard to the objective material before her. We note that it was submitted to her (see paragraph 8 of the determination) by the appellant's representative that the appellant's case should be looked at in the light of the background material and submissions were made on it and the Adjudicator states in paragraph 10 that she had taken into account of all the evidence before her including the background information. She refers expressly to the expert’s report in paragraph 24 of the determination. The one matter the Adjudicator appears to have been prepared to accept was the fact that the appellant had got into trouble for attempting to leave the country illegally.

13. The submission is made that the appellant will get into difficulties on return as a failed asylum seeker. Reliance is placed on an expert’s report compiled for another individual, not this appellant. Counsel also attempted to persuade us to have regard to a UNHCR message dated 11 February 2002 although this was not in the bundle before us. A copy of that document accompanied the grounds of appeal but it has to be clearly appreciated that copies of all documents relied on must be submitted with the Court bundle in triplicate and served on the respondent. In this case the most up to date Bulletin we have is June 2002 and we are satisfied that this gives an appropriate up to date statement of the position. This Bulletin reads as follows:

"Treatment of Failed Asylum Seekers

1. The question of the safety of returning failed asylum seekers to Sudan often comes up in asylum appeals. The current Home Office policy is to return failed asylum seekers to Khartoum only. A Danish Immigration Service fact-finding mission to Kartoum in 2001 looked at the subject of the safety of returning failed asylum seekers to Sudan. Foreign embassy and diplomatic officials, government officials, members of human rights organisations and other NGOs were interviewed and consulted. The fact-finding mission found out from the people interviewed and consulted that:

In general, failed asylum seekers with proper travel documentation encounter no problems when returned to Sudan. Sudanese nationals, in general, are free to enter and leave Sudan although an exit visa is needed before a Sudanese national can leave the country.

The Sudanese authorities do not have a specific policy on returning failed asylum seekers. They are generally treated in the same way that other returning Sudanese nationals are treated. It is therefore, not official government policy to harass or persecute returning failed asylum seekers on the basis that these individuals have applied for asylum abroad.

The airport security police at Khartoum have register of persons wanted by the police. These are individuals who have had civil proceedings made against them and are therefore criminals or suspect criminals.

Government Decree No 4/B307 Issued to Border Control Guards

2. In some asylum appeal cases, appellants and/or their legal representatives have stated that the above decree, allegedly issued by the Government to border control guards, is in force. It is alleged that this decree authorises the security forces to detain and question any Sudanese national returning to Sudan who has been abroad for more than one year or more. It is not clear whether this decree has ever been in force at some point in the past but it is no longer in force at the present time.
3. Sudanese nationals who have been aboard for more than one year, however, do have to report to the tax authorities in Sudan on their return. This is because Sudanese nationals abroad are required to pay tax on foreign income for the period spent abroad."

14. We believe that the Adjudicator made sufficient adverse findings concerning the appellant's general credibility to warrant her conclusion that he had not suffered persecution in the past nor would he receive persecution in the future. We find that her factual assessment was adequate in the circumstances and properly arrived at in the light of the background material. So far as returning a failed asylum seeker is concerned, the UNHCR message on which Counsel attempted to place reliance indicates that in principle the UNCHR is not opposed to the return of failed asylum seekers to Sudan. They must of course, have a full and fair hearing and we believe that the appellant had that. The note makes mention of several potential sources of risk but we consider that the June 2002 Bulletin sets out the position clearly and objectively and it is a properly sourced document. In any event, the UNHCR message was not properly placed before us.

15. For the reasons we have given, the appellant has not established his case under either the 1950 or 1951 Conventions to the required standard and this appeal is dismissed.

G Warr
Vice President