[2003] UKIAT 183
- Case title: AZ (Home Office concessions)
- Appellant name: AZ
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Cameroon
- Judges: Mr A Jordan, Rt Hon The Countess of Mar
- Keywords Home Office concessions
The decision
AZ (Home Office Concessions) Cameroon [2003] UKIAT 00183
IMMIGRATION APPEAL TRIBUNAL
Heard at Field House
On: 12 August 2003
Prepared: 13 August 2003
Before
Mr Andrew Jordan
Rt. Hon. The Countess of Mar
Between:
Claimant
and
The Secretary of State for the Home Department
Respondent
For the claimant: Ms.. H. Williams, counsel
For the Secretary of State: Mr J. Wyatt, HOPO
DETERMINATION AND REASONS
1. The appellant is a national of Cameroon who appeals against the decision of an adjudicator, Mr N. J. Osborne, following a hearing on 25 March 2003 dismissing his appeal against the decision of the respondent to refuse both his asylum and his human rights claims.
2. The claimant was born on 20 July 1975. He claimed that he was a member of the SDF, the Social Democratic Front. In elections that took place on 30 June 2002, he told the Secretary of State that he was an observer in elections and was required to oversee the casting of votes. A local political leader attempted to bribe a number of the electoral observers to rig the election by placing false votes in the ballot boxes. Some of the observers refused to do so, even though the bribes had been paid over. Fighting ensued at the voting station. As a result, the claimant said that one of his colleagues was killed. He was advised by the SDF to flee the country.
3. In answer to questions 21 to 25 of his interview, the claimant stated that he was an active member of the SDF and that he was a member of the OJSDF faction within the party. He described this as meaning the "organisation des jeunes” - the organisation of the youth". He gave the name of the leader of the youth organisation and stated that the basic principle of the youth section was to win the elections and to find jobs for young people.
4. In paragraph 6 of the Reasons for Refusal letter dated 3 December 2002, the Secretary of State considered the claimant’s account to be a member of the SDF:
"You claim that you are a member of the SDF and have satisfactorily proved this at interview. The Secretary of State accepts that you are a member of one of the biggest opposition parties in Cameroon."
5. In paragraph 15 of his determination, the adjudicator recorded the fact that the Secretary of State accepted that the claimant was a member of the SDF. At the hearing before the adjudicator, Mr Niger, who appeared on behalf of the claimant, referred to paragraph 6 of the refusal letter and the Home Office concession that the claimant was a member. In the Record of Proceedings there is a note that the Secretary of State's position is not in line with the objective material. There is also a record of what Mr Richards, who appeared on behalf of the Secretary of State, said in his submissions to the adjudicator. It appears that he stood by the contents of the refusal letter, save as to paragraph 10, (the claimant's failure to apply for asylum en route to the United Kingdom). Nevertheless, he drew to the attention of the adjudicator the fact that the SDF did not have a youth section. At best, it is not clear what was being asked of the adjudicator. Nevertheless, there is no suggestion in the Record of Proceedings that the concession was being withdrawn by the Secretary of State or that the claimant was asked to agree to that course of action.
6. A copy of the Cameroon Extended Bulletin prepared by CIPU and dated November 2002 was before the adjudicator. The Social Democratic Front Party is dealt with in paragraphs 5.64 to 5.69.
Paragraph 6.66 states:
"Unlike other political parties, the SDF and does not have a women’s section or a youth section."
7. The adjudicator relied upon the discrepancy between the background information to the effect that there was no youth section in the SDF and the claimant's account that he was involved with the organisation des jeunes as undermining his credibility. Accordingly, he decided that he was not satisfied to the appropriate standard that the claimant was a member of the SDF.
8. Later in his determination, however, the adjudicator appears to adopt a somewhat different approach. In paragraph 24 of the determination, for example, the adjudicator states:
“The political party of which the appellant is a member has popular support in four provinces within Cameroon and also it is active internationally… The appellant in our case accepted in his Home Office interview that he had never suffered any problems in Cameroon until this incident. When this incident escalated, the vice president of the appellants party called the police. I find that in all the circumstances of this case that confidence was being shown in the police as the members of the SDF party involved in this incident had done nothing wrong at all and therefore had nothing to fear."
9. It is, of course, open to an adjudicator to make alternative findings of fact. He could, for example, have said: “Although I have found that the claimant was not a member of the SDF, even if he had been, he has not established his claim." This is not, however, the way that the adjudicator expresses his contradictory findings. The Tribunal may be excused for thinking that, when he came to write paragraph 24 of the determination, he had forgotten the finding he had made at paragraph 15.
10. The grounds of appeal assert that the adjudicator was not entitled to go behind the concession made by the Secretary of State in the refusal letter.
11. In Carcabuk (00/TH/01426), the Immigration Appeal Tribunal (Chairman: the President, Collins J) gave guidance that was intended to be authoritative and should be regarded as binding on all adjudicators and Tribunal chairmen. The issue before the Tribunal was: In what circumstances (if at all) may an adjudicator or the Tribunal make adverse findings concerning the credibility of an appellant when the Secretary of State has not sought to impugn it? In paragraph 12 of the determination, a series of guidelines are produced. The refusal letter or, where appropriate, the Explanatory Statement should identify the matters in issue and make clear what facts, if any, are found in the applicant's favour. If the HOPO wishes to withdraw any concession made, he must inform the appellant or his advisers as soon as possible and it will be for the adjudicator to decide, if an application for an adjournment to enable the new case to be met is made, whether to grant it. If he does not, the concession will stand. If the concession is made by a HOPO, it must be accepted by the adjudicator. A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to withdraw the concession.
12. We are satisfied that the adjudicator did not follow these guidelines and should not have treated whether the claimant was a member of the SDF as an issue before him.
13. We considered whether it was possible to excise that part of the adjudicator's determination on the basis that the adjudicator’s other findings of fact were sufficient. Unfortunately, whether the claimant was a member of the SDF was central to his case. It was for this reason that he was an election observer. He claims that he was advised to leave Cameroon by the vice president of the party. In our judgment, membership of the SDF was intimately connected to the core of the claimant's account and the adjudicator’s rejection of this evidence renders all of the adjudicator's findings flawed.
Decision: The claimant's appeal is allowed to the extent that it is remitted for hearing afresh before an adjudicator other than Mr N. J. Osborne.
Directions: It is directed that the Home Office informs the claimant within 28 days of service of this determination as to whether they seek to withdraw the concession made in paragraph 6 of the Reasons for Refusal letter to the effect that the Secretary of State accepts the claimant was a member of the SDF. A copy of the letter must be filed with the Immigration Appellate Authority. If the Home Office fails to notify the claimant of its decision, the concession contained in paragraph 6 of the refusal letter will stand and the Home Office will not be permitted to argue that the claimant was not a member of the SDF. This will not then be an issue before the adjudicator.
Andrew Jordan
Vice President
13 August 2003
IMMIGRATION APPEAL TRIBUNAL
Heard at Field House
On: 12 August 2003
Prepared: 13 August 2003
Before
Mr Andrew Jordan
Rt. Hon. The Countess of Mar
Between:
Claimant
and
The Secretary of State for the Home Department
Respondent
For the claimant: Ms.. H. Williams, counsel
For the Secretary of State: Mr J. Wyatt, HOPO
DETERMINATION AND REASONS
1. The appellant is a national of Cameroon who appeals against the decision of an adjudicator, Mr N. J. Osborne, following a hearing on 25 March 2003 dismissing his appeal against the decision of the respondent to refuse both his asylum and his human rights claims.
2. The claimant was born on 20 July 1975. He claimed that he was a member of the SDF, the Social Democratic Front. In elections that took place on 30 June 2002, he told the Secretary of State that he was an observer in elections and was required to oversee the casting of votes. A local political leader attempted to bribe a number of the electoral observers to rig the election by placing false votes in the ballot boxes. Some of the observers refused to do so, even though the bribes had been paid over. Fighting ensued at the voting station. As a result, the claimant said that one of his colleagues was killed. He was advised by the SDF to flee the country.
3. In answer to questions 21 to 25 of his interview, the claimant stated that he was an active member of the SDF and that he was a member of the OJSDF faction within the party. He described this as meaning the "organisation des jeunes” - the organisation of the youth". He gave the name of the leader of the youth organisation and stated that the basic principle of the youth section was to win the elections and to find jobs for young people.
4. In paragraph 6 of the Reasons for Refusal letter dated 3 December 2002, the Secretary of State considered the claimant’s account to be a member of the SDF:
"You claim that you are a member of the SDF and have satisfactorily proved this at interview. The Secretary of State accepts that you are a member of one of the biggest opposition parties in Cameroon."
5. In paragraph 15 of his determination, the adjudicator recorded the fact that the Secretary of State accepted that the claimant was a member of the SDF. At the hearing before the adjudicator, Mr Niger, who appeared on behalf of the claimant, referred to paragraph 6 of the refusal letter and the Home Office concession that the claimant was a member. In the Record of Proceedings there is a note that the Secretary of State's position is not in line with the objective material. There is also a record of what Mr Richards, who appeared on behalf of the Secretary of State, said in his submissions to the adjudicator. It appears that he stood by the contents of the refusal letter, save as to paragraph 10, (the claimant's failure to apply for asylum en route to the United Kingdom). Nevertheless, he drew to the attention of the adjudicator the fact that the SDF did not have a youth section. At best, it is not clear what was being asked of the adjudicator. Nevertheless, there is no suggestion in the Record of Proceedings that the concession was being withdrawn by the Secretary of State or that the claimant was asked to agree to that course of action.
6. A copy of the Cameroon Extended Bulletin prepared by CIPU and dated November 2002 was before the adjudicator. The Social Democratic Front Party is dealt with in paragraphs 5.64 to 5.69.
Paragraph 6.66 states:
"Unlike other political parties, the SDF and does not have a women’s section or a youth section."
7. The adjudicator relied upon the discrepancy between the background information to the effect that there was no youth section in the SDF and the claimant's account that he was involved with the organisation des jeunes as undermining his credibility. Accordingly, he decided that he was not satisfied to the appropriate standard that the claimant was a member of the SDF.
8. Later in his determination, however, the adjudicator appears to adopt a somewhat different approach. In paragraph 24 of the determination, for example, the adjudicator states:
“The political party of which the appellant is a member has popular support in four provinces within Cameroon and also it is active internationally… The appellant in our case accepted in his Home Office interview that he had never suffered any problems in Cameroon until this incident. When this incident escalated, the vice president of the appellants party called the police. I find that in all the circumstances of this case that confidence was being shown in the police as the members of the SDF party involved in this incident had done nothing wrong at all and therefore had nothing to fear."
9. It is, of course, open to an adjudicator to make alternative findings of fact. He could, for example, have said: “Although I have found that the claimant was not a member of the SDF, even if he had been, he has not established his claim." This is not, however, the way that the adjudicator expresses his contradictory findings. The Tribunal may be excused for thinking that, when he came to write paragraph 24 of the determination, he had forgotten the finding he had made at paragraph 15.
10. The grounds of appeal assert that the adjudicator was not entitled to go behind the concession made by the Secretary of State in the refusal letter.
11. In Carcabuk (00/TH/01426), the Immigration Appeal Tribunal (Chairman: the President, Collins J) gave guidance that was intended to be authoritative and should be regarded as binding on all adjudicators and Tribunal chairmen. The issue before the Tribunal was: In what circumstances (if at all) may an adjudicator or the Tribunal make adverse findings concerning the credibility of an appellant when the Secretary of State has not sought to impugn it? In paragraph 12 of the determination, a series of guidelines are produced. The refusal letter or, where appropriate, the Explanatory Statement should identify the matters in issue and make clear what facts, if any, are found in the applicant's favour. If the HOPO wishes to withdraw any concession made, he must inform the appellant or his advisers as soon as possible and it will be for the adjudicator to decide, if an application for an adjournment to enable the new case to be met is made, whether to grant it. If he does not, the concession will stand. If the concession is made by a HOPO, it must be accepted by the adjudicator. A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to withdraw the concession.
12. We are satisfied that the adjudicator did not follow these guidelines and should not have treated whether the claimant was a member of the SDF as an issue before him.
13. We considered whether it was possible to excise that part of the adjudicator's determination on the basis that the adjudicator’s other findings of fact were sufficient. Unfortunately, whether the claimant was a member of the SDF was central to his case. It was for this reason that he was an election observer. He claims that he was advised to leave Cameroon by the vice president of the party. In our judgment, membership of the SDF was intimately connected to the core of the claimant's account and the adjudicator’s rejection of this evidence renders all of the adjudicator's findings flawed.
Decision: The claimant's appeal is allowed to the extent that it is remitted for hearing afresh before an adjudicator other than Mr N. J. Osborne.
Directions: It is directed that the Home Office informs the claimant within 28 days of service of this determination as to whether they seek to withdraw the concession made in paragraph 6 of the Reasons for Refusal letter to the effect that the Secretary of State accepts the claimant was a member of the SDF. A copy of the letter must be filed with the Immigration Appellate Authority. If the Home Office fails to notify the claimant of its decision, the concession contained in paragraph 6 of the refusal letter will stand and the Home Office will not be permitted to argue that the claimant was not a member of the SDF. This will not then be an issue before the adjudicator.
Andrew Jordan
Vice President
13 August 2003