Tribunal decisions

The decision

Asylum and Immigration Tribunal
KK (Unreported decisions - Practice Directions) Sudan [2006] UKAIT 00008

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 28 November 2005
06 February 2006

…………………………………

Before

THE HON. MR JUSTICE HODGE OBE (PRESIDENT)
Mr C M G OCKELTON (DEPUTY PRESIDENT)
DR H H STOREY (SENIOR IMMIGRATION JUDGE)

Between

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R André, instructed by White Ryland
For the Respondent: Mr C Avery, Home Office Presenting Officer

There was a failure on the part of the appellant’s representatives in this case to follow both Tribunal Practice Directions and Supreme Court Practice Directions relating to citation of unreported decisions. Unreported decisions are not to be cited except in accordance with such Practice Directions.

DETERMINATION AND REASONS

1. The appellant, a national of Sudan, seeks reconsideration of a determination of the Immigration Judge, Mrs M.M Shanahan, notified on 5 April 2005, dismissing his appeal against a decision to refuse to grant asylum and to remove him as an illegal entrant by way of directions under paragraphs 8-10 of Schedule 2 to the Immigration Act 1971. The initial question we must address is whether the Immigration Judge materially erred in law.

2. The basis of the appellant's claim was that he was a member of the Zaghawa tribe and lived in a village called Wadi Karou. He made a living there as a trader. His problems began on 11 July 2004 when his village was attacked and pillaged by the Janjaweed. He was one of the survivors. He managed to escape, but on the way to Manyachi was kidnapped by government security forces who accused him of being a black African and supporter of the Sudanese People’s Liberation Army (SPLA). He was transferred to Al Niyala where he was kept in solitary confinement until 12 September 2004. When he became ill security forces took him to Niyala Hospital. One of his friends helped him to escape. Going first to Labadou he was then taken to Port Sudan where a ship took him to the UK. He claimed that his brother was a member of the opposition party (SPLP) and that he was accused of being a member of the Movement of Justice (JEM) in Sudan.

3. The Immigration Judge did not find any aspect of the appellant's account credible except that he was a member of the Zaghawa tribe. On this basis she was prepared to accept that at this time he could not safely be returned to Darfur. As regards internal relocation, she did not think he could live safely in the south of Sudan. She considered, however, that he could relocate to Khartoum.

’66. The other option available to the appellant is to remain in Khartoum to where he would be returned. The objective evidence sets out the situation with the IDP camps in the areas around Khartoum and it is clear that conditions are difficult and harsh. Mr Andre referred to the report at page 21 of the appellant's bundle which deals with the situation at the El Salaam camp in Omdurman. He argued that the humanitarian situation is such that the appellant cannot be expected to relocate to any of these camps or to Khartoum. I have also had regard to the evidence about arrests of Darfurians outside Darfur and in Khartoum. However these arrests appear to have been due to actual or perceived support of one of the armed opposition groups in Darfur, students, lawyers or human rights defenders.

67. I consider that is possible for the appellant to remain in Khartoum. Given my above findings he has no political standing or indeed any other factors, apart from his ethnicity, which would bring him to the adverse attention of the authorities. It is likely that he will be questioned at the airport on return but there is no evidence that he will be detained or ill-treated such as to cause persecution or treatment contrary to Articles 2 or 3.

68. In conclusion I am not satisfied that the appellant’s account is credible but he is a member of the Zaghawa tribe. He cannot be returned to Darfur at this time but there is no risk of persecution or breach of Articles 2 or 3 by return to Khartoum. I do not consider that it would be unduly harsh to expect the appellant to relocate there, he is a young man who has given no evidence of any continuing health problems and while I accept the difficult conditions in these camps it does not found a claim under Articles 2 or 3.’

4. In the grounds of appeal it was submitted firstly that the Immigration Judge had erred by not placing enough emphasis on the objective material indicating that Khartoum was unsafe, in particular paragraph 2.2 of the December 2004 Amnesty International report, ‘Sudan: No one to complain to: No respect for the victims, impunity for the perpetrators’, which highlighted arrest and ill-treatment of Darufrians in IDP camps around the capital. This evidence showed, it was argued, that Darfurians are targeted in Khartoum by virtue of ethnicity alone, and that the risk is even higher for males of fighting age. The second main submission was that the Immigration Judge failed to place enough emphasis on the inhumane conditions in the Khartoum IDP camps: no detailed reasoning was provided for rejecting the appellant's evidence demonstrating that the authorities have bulldozed IDP camps around Khartoum. It was submitted that the Immigration Judge erred in particular by failing to give reasons for distinguishing the appellant's case from the Tribunal case of Otnam, HX/08803/2003 notified on 27 July 2004 in which it was found that Khartoum was not appropriate or reasonable as a relocation alternative, it being unduly harsh, given suspicions about Darfurians and the fact that at least one camp had been bulldozed and circumstances are to say the least difficult. Conjoined with this ground, it was submitted that the appellant wished to rely on an order made by Mr Justice Collins in an application for statutory review by an appellant Suliman (CO/0953) [2005] in which the judge mentions Otnam.

5. Miss D.K. Gill, the Senior Immigration Judge who dealt with the application for reconsideration, rejected the appellant's first ground of appeal. She said it amounted to no more than a disagreement with the Immigration Judge's findings and an attempt to reargue issues that were before the Immigration Judge. Ms Gill found that the Immigration Judge had ‘carefully considered’ the objective evidence and had given her reasons for concluding that it would be safe for the appellant to relocate. Ms Gill added that the Immigration Judge's finding on safety was one which was fully open to her on the evidence which was before her, for the reasons she gave.

6. However, Miss Gill stated that it was arguable the Immigration Judge had erred in law with regard to her finding that it would not be unduly harsh for the appellant to relocate to Khartoum, in that:

‘(a) she failed to give adequate reasons in law for reaching that finding; and

(b) she failed to refer to the Otnam case ... I am satisfied that the [Immigration Judge] was given a copy of the determination in that case. It appears that the previous Practice Direction 10 (which was still in force at the date of hearing) was not complied with. This may all be relevant in determining the error of law point. I have had regard to the reasons given in the decision of Sir Andrew Collins on 23 February 2005 (reversing the Tribunal's refusal of permission on that case). The parties may also wish to address the Tribunal on the recent reported decision [2005] UKIAT 00069)).

7. The latter was a reference to the Tribunal case of MM (Sudan) [2005] UKIAT 00069 notified on 9 March 2005.

8. The bundle of documents prepared by the appellant's representatives included several items which post-dated the Immigration Judge's determination. Mr André highlighted the reference to a 21 October 2005 Amnesty International report of certain IDP camps being summarily destroyed and their inhabitants being cast out into the desert. We had to remind Mr Andre that he could not rely on these items of evidence in order to demonstrate a material error of law. We also expressed our concern that, insofar as he sought to rely on post-determination items, he – or at least those instructing him – had not seen fit to include the Country Guidance case of AE (Relocation – Darfur – Khartoum an option) Sudan CG [2005] UKAIT 00101 . There is a general duty on representatives to ensure that the materials they adduce cover the latest Tribunal guidance.

9. We asked Mr André to explain the legal basis for his citation of Otnam. Practice Direction 10 which was still in force when the Immigration Judge (then Adjudicator) heard this appeal on 7 March states :

‘Immigration Appeal Tribunal
Practice Direction 10
Office of the Chief Adjudicator
Practice Direction CA3 of 2003

Citation of Determinations

1. From 19th May the Immigration Appeal Tribunal will cease the practice of reporting and publishing all its determinations. From that time, determinations will be either ‘reported’ or ‘unreported’. The decision whether to report a case is that of the Tribunal and is not perceived to be an issue in which the parties to the appeal have an interest.

2. Reported determinations will receive a natural citation number of the form [2003] UKIAT 00001 and will be widely available. They will be an anonymised and will be cited by the neutral citation number. Determinations without a number in this form are unreported.

3. Unreported determinations will receive no neutral citation number. They will be sent to the parties but will not be published. Anonymised version will be deposited in the Supreme Court Library. (Negotiations for an electronic depository are in progress).

4. From the date of this Practice Direction, no unreported determination of the Tribunal, and no determination of an Adjudicator, may be cited in proceedings before any Adjudicator or the Tribunal unless either:

(i) the claimant in the present proceedings, or a member of his family, was a party to the proceedings in which the previous determination was issued, or

(ii) the Adjudicator, or the Tribunal, (as the case may be), gives permission.

5. Permission will be given only in exceptional cases, and even more rarely in relation to Adjudicator determinations. An application for permission to cite an unreported determination:

(i) must include a full transcript of the determination,
(ii) must identify the proposition for which the determination is to be cited,
(iii) must certify that that proposition is not found in any reported determination of the Tribunal, and has not been superseded by a decision of higher authority, and
(iv) must be accompanied by a summary analysis of all other decisions of the Tribunal, and all available decisions of higher authority, relating to the same issue, promulgated in the period beginning six months before the date of the decision proposed to be cited and ending two weeks before the date of the hearing. This analysis is intended to show the trend of AIT decisions on this issue.

6. Determinations of the Tribunal published in 2002 and previous years will continue to be citable. From 1st May 2004, however a party citing a determination bearing a natural citation number prior to [2003] (including all series of ‘bracket numbers’) must be in a position to certify that the matter or proposition for which the determination is cited has not been the subject of a more recent, reported, Tribunal determination.

7. ‘Starred’ determinations of the Tribunal continue to have a special status. They are to be treated as being on the Appellate Authorities. Other determinations are not binding. The Tribunal will nevertheless attempt to secure consistency in its decision-making and to provide appropriate guidance to Adjudicators.’

Mr Justice Ouseley
President
H H Judge Hodge OBE
Chief Adjudicator’

10. This Practice Direction was accompanied by Explanatory Notes which at paragraph 2 stated:

‘Large number of decisions, coupled with the increased numbers of judiciary at both levels of the Immigration Appeal Tribunal, has exacerbated problems of ‘selective citation’. Adjudicators and panels of the Tribunal are shown Tribunal determinations in an attempt to persuade them that the instant case should be decided in a similar way. Whether intentionally or not, this process if often misleading, as there is no proper effort to survey the whole of the Tribunal output on a particular topic, or to discover whether there is any good reason for following one decision which immigration control cited rather than others, not cited, which may be to the opposite effect.’

11. It is plain that Mr André’s citation of Otnam was contrary to this Practice Direction. Its production was not accompanied by other authorities covering the previous six months’ period.

12. Nor, for similar reasons, can Mr André’s citation meet the requirements of the April 2005 AIT Practice Directions, paragraph 17 of which states:

’17. Citation of determinations

17.1 A determination of the Tribunal to which this subparagraph applies will be either “reported” or “unreported”. The decision whether to report a case is that of the Tribunal and is not perceived to be an issue in which the parties to an appeal have an interest.

17.2 Paragraph 17.1 applies to any determination that is promulgated following a hearing at which the jurisdiction of the Tribunal was excised by a Senior Immigration Judge (whether sitting alone or with another member or members).

17.3 No determination will be reportable which follows a hearing before a single member of the Tribunal other than the President or a Deputy President of the Tribunal.

17.4 Reported determinations will receive a neural citation number of the form [2005] UKIAT 00000 and will be widely available (including being available on the Tribunal's website). They will be anonymised and will be cited by the neutral citation number. Determinations without such a number are unreported. Anonymised versions of unreported determinations will be deposited in the Supreme Court Library and treated as unreported determinations for the purposes of the Tribunal's website.

17.5 Other determinations will receive no neutral citation number. They will be sent to the parties (in accordance with the Rules) but will not be published.

17.6 A determination of the Tribunal which has not been reported may not be cited in proceedings before the Tribunal unless either:

(a) the appellant in the present proceedings, or a member of his family, was a party to the proceedings in which the previous determination was issued; or

(b) the Tribunal gives permission.

17.7 Permission under paragraph 17.6 will be given only in exceptional cases, and even more rarely in the case of determinations promulgated following a hearing before a single member of the Tribunal.

17.8 An application for permission to cite a determination which has not been reported must:

(a) include a full transcript of the determination;
(b) identify the proposition for which the determination is to be cited;
(c) certify that the proposition is not found in any reported determination of the Tribunal or of the IAT and has not been superseded by a decision of a higher authority; and
(d) be accompanied by a summary analyses of all there decisions of the Tribunal and all available decisions of higher authority, relating to the same issue, promulgated in the period beginning six months before the date of the decision proposed to be cited and ending two weeks before the date of the hearing. (This analysis is intended to show the trend of Tribunal decisions on the issue).

17.9 The provisions of paragraph 17.6 to 17.8 apply to unreported determinations of the IAT and to determinations of Adjudicators as those provisions apply to unreported determinations of the Tribunal and to determinations promulgated following a hearing by a single member of the Tribunal.

17.10 Until 4 October 2005, the references in paragraph 127.8(d) to decisions of the Tribunal shall be construed as including references to decisions of the IAT.

17.11 A party citing a determination of the IAT bearing a neutral citation number prior to [2003] (including all series of “bracket numbers”] must be in a position to certify that the matter or proposition for which the determination is cited has not been the subject of more recent, reported, determinations of the IAT or of the Tribunal.’

13. Mr André admitted that he could not seek to justify his citation of Otnam by reference to IAT or IAT Practice Directions. Nevertheless, he submitted, we should still permit it to be cited as an authority in the interests of justice. At stake, he said, were important issues affecting evaluation of country conditions in a country which was the focus of world wide concern as regards the treatment of Darfurians by its government and by those associated with it. Otnam was directly relevant to the issues at the heart of this appeal.

14. Citation of Otnam could be justified in any event, argued Mr André, by reference to the mention made of it by Mr Justice Collins in the order he made on the Suliman application, which he said, approved Otnam. The order to which he referred stated:

'In the High Court of Justice
Queens Bench Division
Administrative Court Service

In the matter of an application for Statutory Review –
s.101(2) Nationality, Immigration and Asylum Act 2002

SULIMAN v Immigration Appeal Tribunal

NOTIFICATION of the Judge’s decision (CPR Part 54.25)

Following consideration of the documents lodged by the Applicant

Order by the Honourable Mr Justice Collins

Decision of the Tribunal reversed
Reasons:

Despite the very full and careful determination of the relevant issues by the Adjudicator, the Tribunal decision in Otnam, which deals specifically with relocation by Darfurians, persuades me that there has been a failure by the Adjudicator to have regard to a material consideration. I note that the decision in question is of a full legal Tribunal.’

15. We do not accept that Mr André can found his citation of Otnam on the reference made to it in Suliman. Orders made on statutory review applications and the reasons given for them cannot be equated to reasoned judgments. They are made on the papers without submissions from both parties and must never be cited. We are not persuaded in any event that it was made clear to Collins, J that Otnam was unreported. So far as unreported cases before the High Court are concerned, we understand their position to be governed by Practice Direction (Citation of Authorities) (Sup Ct) [2001] 1 WLR 1001 which at para 8 states in its relevant parts:

'Practice Directions (Citation of Authorities)

Practice – Civil proceedings – Citation of authorities – Categories of judgments to be cited only if clearly purporting to develop law – Requirement to justify citation of judgments purporting not to develop law – Method of citation – Authorities from other jurisdictions.
...

Categories of judgments that may only be cited if they fulfil specified requirements.

6.1 A judgment falling into one of the categories referred to in paragraph 6.2 below may not in future be cited before any court unless it clearly indicates that it purports to establish a new principle or to extend the present law. In respect of judgments delivered after the date of this direction, that indication must take the form of an express statement to that effect. In respect of judgments delivered before the date of this direction that indication must be present in or clearly deducible from the language used in the judgment.

6.2 Paragraph 6.1 applies to the following categories of judgment
Applications attended by one party only
Applications for permission to appeal
Decisions on applications that only decide that the application is arguable
County court cases, unless (a) cited in order to illustrate the conventional measure of damages in personal injury case; or (b) cited in a county court in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available.

Methods of citation
8.1 Advocates will in future be required to state, in respect of each authority that they wish to cite, the proposition of law that the authority demonstrates, and the parts of the judgment that support that proposition. If it is sought to cite more than one authority in support of a given proposition, advocates must state the reason for taking that course.

16. From the above it is clear that it was not appropriate to cite either Otnam or Suliman.

17. Even if Otnam had been properly cited, it was plainly not, as Mr André asserted, ‘approved’. All Mr Justice Collins did was reverse a decision refusing to grant permission to appeal; he did not decide on its merits: see above paragraph 15.

18. Just why it would be wrong to permit citation of an unreported case in this case is amply demonstrated more generally by the state of the Tribunal's reported and Country Guideline decisions on the issue of internal relocation in Khartoum at the time the Immigration Judge (then Adjudicator) heard this appeal in March 2005. In existence at that time (and in the Home Office bundle submitted for this appeal) was AB (Return of southern Sudanese) [2004] UKIAT notified on 20 September 2004. There was also the reported case of MM, which Miss Gill mentioned in her order for reconsideration. Thus the citation of Otnam was an attempt to rely on one unreported case without reference to the existence of other relevant reported cases. This is precisely the type of abuse which the Tribunal Practice Directions exist to prevent. It may be that AB did not specifically address the issue of the return of Darfurians, but it was relevant to the issue of conditions prevailing in Khartoum for displaced persons.

19. It must not be forgotten either that the panel in Otnam did not see fit to make that case a reported case. In our view the reason is obvious: as was stated at paragraph 7, the evidence relating to the circumstances of Darfurians in Khartoum ‘has derived entirely, it is right to say, from the appellant’.

20. Hence we do not accept that Otnam can be cited before us and we take no account of it.

21. So far as the interests of justice are concerned these in our view are met by this Tribunal placing focus on the issue of whether on the background materials that were before the Immigration Judge she was entitled to conclude that relocation to Khartoum would not be unduly harsh.

22. Mr André sought to argue that the Immigration Judge's treatment of the internal relocation issue was flawed on both Refugee Convention and Article 3 grounds. However, he was unable to point to any reference to Article 3 in the grounds of appeal. His argument has therefore, to be confined to the appellant's position under the Refugee Convention.

23. Mr André sought to argue that the text of paragraph 66 of the Immigration Judge's determination disclosed that she had confined herself to just one page (page 21) of the IRIN report dealing with the situation in IDP camps in and around Khartoum (contained at p.179 of the bundle). She had, argued Mr André, effectively seen the situation in the El Salaam camp in Omduram as determinative of the issue generally. We cannot agree. The opening sentence of paragraph 66 makes clear that the Immigration Judge had in mind evidence relating to the ‘situation with IDP camps in the areas around Khartoum’, a fact further demonstrated by the reference in the third sentence to the humanitarian situation in ‘any of these camps or to Khartoum’.

24. Mr André’s point was really only concerned with the amount of weight the Immigration Judge should have given to the evidence about the humanitarian situation facing Darfurians in Khartoum. As we have already noted, reconsideration was specifically not made in relation to his argument about the issue of the safety of Khartoum for members of the Zaghawa. It was the Immigration Judge's assessment that the conditions in IDP camps in and around Khartoum were difficult and harsh, but not unduly harsh. In our view that was an assessment which was reasonably open to her on the available evidence. Although the Amnesty International report did pinpoint the existence of inhumane conditions at one or two of the IDP camps, the evidence did not indicate that such conditions were widespread. We would note too that in reaching her conclusion the Immigration Judge also took careful account of the appellant's particular circumstances, noting his lack of political activity and his lack of any continuing health problems.

25. Given that we have not identified a material error of law in the Immigration Judge's determination, it is not open to us to take into account recent materials presented to us by Mr André.

26. However, had we been able to take account of these, we would observe that the situation since March 2005 has been considered by the Tribunal in AE [2005] UKIAT and LM [2005] UKIAT 00014 notified on 30 June 2005. In Hamid and Others [2005] EWCA Civ 1219, a judgment of 25 October 2005, the Court of Appeal rejected a challenge to AE.

27. For completeness, we would add that even had we accepted Mr André’s grounds of appeal as meaning to raise Article 3 issues, we would have reached similar conclusions. The Immigration Judge's assessment as set out in paragraphs 67 and 68 that conditions in Khartoum does not breach Articles 2 and 3, was entirely justified.

28. Although Mr André has failed in his submissions in this case, he is quite right that the situation for Darfurians in Sudan and in Khartoum in particular requires assessment on a periodic basis. The Tribunal is well aware of the need to keep the country guidance cases under review and will continue to do so.

29. To conclude:

The Adjudicator did not err in law. Accordingly her decision to dismiss the appeal on both asylum and human rights grounds must stand.

Signed Date

Dr H H Storey
Senior Immigration Judge