[2003] UKIAT 75
- Case title: MS (Objective situation, At date of decision)
- Appellant name: MS
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Sierra Leone
- Judges: Professor DB Casson, Mr R Chalkley
- Keywords Objective situation, At date of decision
The decision
CC
Heard at Field House
MS (Objective Situation - At Date of Decision) Sierra Leone [2003] UKIAT 00075
On 29 August 2003
Dictated 1 September 2003
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:17.09.03
Before:
Mr. Richard Chalkley - Chairman
Professor D. B. Casson
Between
Secretary of State for the Home Department
APPELLANT
and
RESPONDENT
Mr M Davidson, a Senior Home Office Presenting Officer, appeared on behalf of the appellant and Mr K Kuranchie ,a representative with Refugee Law Centre appeared on behalf of the respondent
DETERMINATION AND REASONS
1. The appellant is the Secretary of State for the Home Department. The respondent is a citizen of Sierra Leone. The appellant appeals against the determination of an Adjudicator, Mr R J Oliver, sitting at Croydon Magistrates Court on the 8th November 2002, who in a determination promulgated on the 10th January 2003, allowed the respondent’s appeal against the decision of the appellant, taken on the 23rd August 2002, to refuse to grant leave to enter after refusing asylum.
2. The grounds of appeal reflected an apparent contradiction in the Adjudicator’s findings. He dismissed the respondent’s asylum appeal and said:
“I therefore find that there was no serious risk of the [respondent] being persecuted for a convention reason in those other parts Sierra Leone. The town certainly was safe.”
The Adjudicator allowed the human rights aspect of the appeal under article 3. The grounds of application suggest that if the Adjudicator was minded to allow the respondent’s article 3 claim, then he should have allowed the asylum claim also.
3. Addressing us on behalf of the appellant, Mr Davidson suggested that the Adjudicator’s findings where contradictory. At paragraph 44 of his determination, the Adjudicator quotes from the Tribunal’s determination in Paul Owen [2002] UKIAT 03285. However, the case of Paul Owen was decided on the 13th May 2002 and referred to a report which itself was dated the 7th July 2001. The objective material considered by the Tribunal in Paul Owen was out of date by the time they considered it and simply did not reflect the situation in Sierra Leone by the time Mr Oliver came to hear the respondent’s appeal in November 2002. In paragraph 35 of the determination, the Adjudicator refers to the elections in May 2002 and in paragraph 38 he refers to the disarmament of Government militia forces, which was achieved in 2002. He considered these factors when he dismissed the asylum claim, but for some reason appears not to have considered them when considering the respondent’s article 3 claim. It was clear from the paragraph 46, that the Adjudicator had before him the October 2002 Country Information and Policy Report (“CIPU”). The current situation is dealt with in the April 2003 CIPU at paragraphs 6.29 and 6.32. That showed that some 135,000 people were repatriated during 2002, although an estimated 70,000 people remained in Refugee Camps in Guinea and Liberia. The United Nations found no evidence to support earlier claims of sexual abuse of refugees, following their investigation into 2001 reports. The Government was said to cooperate with the United Nations High Commission for Refuges and other organisations on repatriation matters and continued to provide first asylum to an increasing number of Liberians who had fled the conflict in their home country. UNHCR reported that more than 50,000 Liberian refugees entered the country in 2002. Some camps, such as Jendema camp, at times were unable to provide adequate food or shelter for the influx of refugees which caused border areas. However, conditions in all camps were described as adequate by the end of 2002.
4. Mr Davidson drew our attention to page 70 of the respondent’s bundle, which referred to all but two of the countries “149 chieftains” officially having been declared “safe for resettlement” by the end of 2002. Beneficiaries were offered resettlement packages, including a two month food ration, household utensils, plastic sheeting and in some cases transportation. According to UN sources a total of some 220,000 registered internally displaced persons were resettled in five places since April 2001, the last 12,800 of them in November 2002. Many were said to have returned home spontaneously. Officially, at least, this left no more internally displaced persons in Sierra Leone. NGO sources in Sierra Leone privately reported there being 10 and 20 thousand “unofficial” internally displaced persons, mostly in rural areas.
5. Mr Davidson submitted that this reflected the situation as it was at the date the Adjudicator heard the appeal and, because events had moved so very quickly in Sierra Leone, the Adjudicator had been wrong to place so much emphasis on the objective material referred to the Tribunal decision in Paul Owen, which, at the date of the Adjudicator’s determination simply failed to reflect the current situation.
6. For the respondent, Mr K. Kuranchie suggested that the Adjudicator had before him the most up-to-date objective material that was available. The Adjudicator’s findings were not inconsistent, but the grounds of appeal were misconceived. He submitted that the Tribunal’s determination in Kacha was not authority for the proposition that no article 3 breach can be found where an asylum claim is dismissed, except where an asylum claim does not engage the Convention. Following the decision of the Court of Appeal in Oleed v Secretary of State for the Home Department[2002] EWCA Civ 1906, the Tribunal are not, as a matter of law, permitted to interfere in the determination. There is nothing wrong with the Adjudicator’s findings, which are based on the evidence which was available to him at the date of his decision. The Adjudicator could only come to a conclusion based on the reports which were before him. The Government had now shut down the Refugee Camps and the resettlement process has been completed.
7. Responding on behalf of the appellant, Mr Davidson submitted that Oleed did not preclude the Tribunal, from considering objective evidence as to conditions which were prevailing as at the date of the Adjudicator heard the appeal. That situation was in existence as at the date the Adjudicator heard the appeal, but the objective material which he considered was simply out of date. He submitted that this was not a speculative appeal. He does not argue that there has been an improvement in the situation since the determination , on the contrary, the objective material considered by the Adjudicator was simply out of date at the date he actually considered it and, if he had been made aware of the facts as they then existed and reflected by the objective evidence now before the Tribunal as to the true situation as it was last November, he would not have decided the appeal as he did.
8. We reserved our determination.
9. Having carefully read the Adjudicator’s determination it seems clear to us that the Adjudicator was heavily influenced by the objective materials referred to in Paul Owen, which comprised the global IDP report of 7th July 2001.
10. No criticism is made of the Adjudicator. He can only be expected to consider objective material which is placed before him. The danger, however, in considering objective material which is several months old, is that the actual situation on the ground may be completely different, as appears to us to have been the case. We find that Mr Davidson has persuaded us that, as at the date of the Adjudicator’s determination, the situation was vastly different from that portrayed by the objective material he considered. Indeed by the 28th November last year, the last of some 220,000 registered internally displaced people were being resettled.
11. Mr Kuranchie drew our attention to Lord Justice Schiemann’s remarks in Oleed. Unfortunately the copy of the judgment he provided us with appears not to be numbered but in page 9 of the 15 page judgment, Lord Justice Schiemann’s said:
“Before us it was accepted on the behalf of the Secretary of State that the Tribunal should act even handily, and should only set aside a decision of an Adjudicator who has heard the evidence if it is plainly wrong on unsustainable. I do not regard the Adjudicator’s conclusion as perverse or plainly wrong, nor do I think that the Tribunal was entitled, at any event by the process of reasoning which it had employed, to come to that conclusion.
Mr Mandrik Gill QC advanced a submission to the effect that even if we were satisfied that the Adjudicator was plainly wrong nonetheless we should dismiss the appeal by the Home Secretary because the “plainly wrong” test was only applicable to appeals by immigrants and not to those by the Secretary of State. For appeals in the latter category some even more stringent test was appropriate. I do not find it necessary to reach a concluding view on this submission although I am not presently persuaded by it.
Mr Wilken submitted, as I understood him, that even if were to allow the appeal and quash the decision of the Immigration Appeal Tribunal the effect of that would be to revive the appeal before the Tribunal. He submitted that the situation was changing in Sri Lanka and that it would be useful for the Immigration Appeal Tribunal to consider the position in the light of the present day situation.
It might well be useful but I do not consider that it would be a proper use of the court’s powers now, to send the case back to the Tribunal. The powers of this court are set out in CPR part 52.10. We have all the powers of the lower court. We may set aside or vary an order made by the lower court. Those provisions give us the power to allow the appeal from the Immigration Appeal Tribunal, set aside its determination, substitute a determination dismissing the appeal from the Adjudicator and thus restore his determination. The present is in my judgment an appropriate case in which to exercise that power, I accept that the Tribunal examines the situation in the country from which the refugee is fleeing as at the date of its determination. However, in the present case in my judgment there was nothing wrong with the Adjudicator’s determination, there was therefore no reasons to appeal it and it would be wrong for the Home Secretary, on the back of an appeal which has been dismissed, to seek to re-examine the threat to the refugee with reference to a date later than the Adjudicator’s determination. To permit this would merely encourage appeals by a party who has no ground for appeal but hopes the situation would change sufficiently to enable him to advance different arguments on different facts on appeals. Such procedures would not be in anyone’s interest.”
12. We have concluded that we must allow the Secretary of State’s appeal. The situation in Sierra Leone, both as at the date the Adjudicator’s determined this appeal and, indeed for some little time before that date, had been substantially different from that described in the objective material before the Adjudicator. We do not make any criticism of the Adjudicator, nor of representatives who placed that objective material before him. However, the Adjudicators and representatives should always exercise great caution when considering objective material, and particularly when it is not actually before them but is in fact referred to only in a copy of the Tribunal’s decision.
13. We agree with Mr Davidson that this is not a speculative appeal. He is not arguing that there has been any improvement in the situation since the date of the Adjudicator’s determination and were that the case, we would of course be bound to follow the Court of Appeals decision in Oleed. Now, some 9 months after the Adjudicator had considered this appeal, the Tribunal have had the benefit of considering the objective situation as it was up to November last year and are satisfied that his removal to the United Kingdom will not cause his rights under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms to be breached.
14. The Secretary of State’s appeal is allowed.
Richard Chalkley
Vice President
Heard at Field House
MS (Objective Situation - At Date of Decision) Sierra Leone [2003] UKIAT 00075
On 29 August 2003
Dictated 1 September 2003
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:17.09.03
Before:
Mr. Richard Chalkley - Chairman
Professor D. B. Casson
Between
Secretary of State for the Home Department
APPELLANT
and
RESPONDENT
Mr M Davidson, a Senior Home Office Presenting Officer, appeared on behalf of the appellant and Mr K Kuranchie ,a representative with Refugee Law Centre appeared on behalf of the respondent
DETERMINATION AND REASONS
1. The appellant is the Secretary of State for the Home Department. The respondent is a citizen of Sierra Leone. The appellant appeals against the determination of an Adjudicator, Mr R J Oliver, sitting at Croydon Magistrates Court on the 8th November 2002, who in a determination promulgated on the 10th January 2003, allowed the respondent’s appeal against the decision of the appellant, taken on the 23rd August 2002, to refuse to grant leave to enter after refusing asylum.
2. The grounds of appeal reflected an apparent contradiction in the Adjudicator’s findings. He dismissed the respondent’s asylum appeal and said:
“I therefore find that there was no serious risk of the [respondent] being persecuted for a convention reason in those other parts Sierra Leone. The town certainly was safe.”
The Adjudicator allowed the human rights aspect of the appeal under article 3. The grounds of application suggest that if the Adjudicator was minded to allow the respondent’s article 3 claim, then he should have allowed the asylum claim also.
3. Addressing us on behalf of the appellant, Mr Davidson suggested that the Adjudicator’s findings where contradictory. At paragraph 44 of his determination, the Adjudicator quotes from the Tribunal’s determination in Paul Owen [2002] UKIAT 03285. However, the case of Paul Owen was decided on the 13th May 2002 and referred to a report which itself was dated the 7th July 2001. The objective material considered by the Tribunal in Paul Owen was out of date by the time they considered it and simply did not reflect the situation in Sierra Leone by the time Mr Oliver came to hear the respondent’s appeal in November 2002. In paragraph 35 of the determination, the Adjudicator refers to the elections in May 2002 and in paragraph 38 he refers to the disarmament of Government militia forces, which was achieved in 2002. He considered these factors when he dismissed the asylum claim, but for some reason appears not to have considered them when considering the respondent’s article 3 claim. It was clear from the paragraph 46, that the Adjudicator had before him the October 2002 Country Information and Policy Report (“CIPU”). The current situation is dealt with in the April 2003 CIPU at paragraphs 6.29 and 6.32. That showed that some 135,000 people were repatriated during 2002, although an estimated 70,000 people remained in Refugee Camps in Guinea and Liberia. The United Nations found no evidence to support earlier claims of sexual abuse of refugees, following their investigation into 2001 reports. The Government was said to cooperate with the United Nations High Commission for Refuges and other organisations on repatriation matters and continued to provide first asylum to an increasing number of Liberians who had fled the conflict in their home country. UNHCR reported that more than 50,000 Liberian refugees entered the country in 2002. Some camps, such as Jendema camp, at times were unable to provide adequate food or shelter for the influx of refugees which caused border areas. However, conditions in all camps were described as adequate by the end of 2002.
4. Mr Davidson drew our attention to page 70 of the respondent’s bundle, which referred to all but two of the countries “149 chieftains” officially having been declared “safe for resettlement” by the end of 2002. Beneficiaries were offered resettlement packages, including a two month food ration, household utensils, plastic sheeting and in some cases transportation. According to UN sources a total of some 220,000 registered internally displaced persons were resettled in five places since April 2001, the last 12,800 of them in November 2002. Many were said to have returned home spontaneously. Officially, at least, this left no more internally displaced persons in Sierra Leone. NGO sources in Sierra Leone privately reported there being 10 and 20 thousand “unofficial” internally displaced persons, mostly in rural areas.
5. Mr Davidson submitted that this reflected the situation as it was at the date the Adjudicator heard the appeal and, because events had moved so very quickly in Sierra Leone, the Adjudicator had been wrong to place so much emphasis on the objective material referred to the Tribunal decision in Paul Owen, which, at the date of the Adjudicator’s determination simply failed to reflect the current situation.
6. For the respondent, Mr K. Kuranchie suggested that the Adjudicator had before him the most up-to-date objective material that was available. The Adjudicator’s findings were not inconsistent, but the grounds of appeal were misconceived. He submitted that the Tribunal’s determination in Kacha was not authority for the proposition that no article 3 breach can be found where an asylum claim is dismissed, except where an asylum claim does not engage the Convention. Following the decision of the Court of Appeal in Oleed v Secretary of State for the Home Department[2002] EWCA Civ 1906, the Tribunal are not, as a matter of law, permitted to interfere in the determination. There is nothing wrong with the Adjudicator’s findings, which are based on the evidence which was available to him at the date of his decision. The Adjudicator could only come to a conclusion based on the reports which were before him. The Government had now shut down the Refugee Camps and the resettlement process has been completed.
7. Responding on behalf of the appellant, Mr Davidson submitted that Oleed did not preclude the Tribunal, from considering objective evidence as to conditions which were prevailing as at the date of the Adjudicator heard the appeal. That situation was in existence as at the date the Adjudicator heard the appeal, but the objective material which he considered was simply out of date. He submitted that this was not a speculative appeal. He does not argue that there has been an improvement in the situation since the determination , on the contrary, the objective material considered by the Adjudicator was simply out of date at the date he actually considered it and, if he had been made aware of the facts as they then existed and reflected by the objective evidence now before the Tribunal as to the true situation as it was last November, he would not have decided the appeal as he did.
8. We reserved our determination.
9. Having carefully read the Adjudicator’s determination it seems clear to us that the Adjudicator was heavily influenced by the objective materials referred to in Paul Owen, which comprised the global IDP report of 7th July 2001.
10. No criticism is made of the Adjudicator. He can only be expected to consider objective material which is placed before him. The danger, however, in considering objective material which is several months old, is that the actual situation on the ground may be completely different, as appears to us to have been the case. We find that Mr Davidson has persuaded us that, as at the date of the Adjudicator’s determination, the situation was vastly different from that portrayed by the objective material he considered. Indeed by the 28th November last year, the last of some 220,000 registered internally displaced people were being resettled.
11. Mr Kuranchie drew our attention to Lord Justice Schiemann’s remarks in Oleed. Unfortunately the copy of the judgment he provided us with appears not to be numbered but in page 9 of the 15 page judgment, Lord Justice Schiemann’s said:
“Before us it was accepted on the behalf of the Secretary of State that the Tribunal should act even handily, and should only set aside a decision of an Adjudicator who has heard the evidence if it is plainly wrong on unsustainable. I do not regard the Adjudicator’s conclusion as perverse or plainly wrong, nor do I think that the Tribunal was entitled, at any event by the process of reasoning which it had employed, to come to that conclusion.
Mr Mandrik Gill QC advanced a submission to the effect that even if we were satisfied that the Adjudicator was plainly wrong nonetheless we should dismiss the appeal by the Home Secretary because the “plainly wrong” test was only applicable to appeals by immigrants and not to those by the Secretary of State. For appeals in the latter category some even more stringent test was appropriate. I do not find it necessary to reach a concluding view on this submission although I am not presently persuaded by it.
Mr Wilken submitted, as I understood him, that even if were to allow the appeal and quash the decision of the Immigration Appeal Tribunal the effect of that would be to revive the appeal before the Tribunal. He submitted that the situation was changing in Sri Lanka and that it would be useful for the Immigration Appeal Tribunal to consider the position in the light of the present day situation.
It might well be useful but I do not consider that it would be a proper use of the court’s powers now, to send the case back to the Tribunal. The powers of this court are set out in CPR part 52.10. We have all the powers of the lower court. We may set aside or vary an order made by the lower court. Those provisions give us the power to allow the appeal from the Immigration Appeal Tribunal, set aside its determination, substitute a determination dismissing the appeal from the Adjudicator and thus restore his determination. The present is in my judgment an appropriate case in which to exercise that power, I accept that the Tribunal examines the situation in the country from which the refugee is fleeing as at the date of its determination. However, in the present case in my judgment there was nothing wrong with the Adjudicator’s determination, there was therefore no reasons to appeal it and it would be wrong for the Home Secretary, on the back of an appeal which has been dismissed, to seek to re-examine the threat to the refugee with reference to a date later than the Adjudicator’s determination. To permit this would merely encourage appeals by a party who has no ground for appeal but hopes the situation would change sufficiently to enable him to advance different arguments on different facts on appeals. Such procedures would not be in anyone’s interest.”
12. We have concluded that we must allow the Secretary of State’s appeal. The situation in Sierra Leone, both as at the date the Adjudicator’s determined this appeal and, indeed for some little time before that date, had been substantially different from that described in the objective material before the Adjudicator. We do not make any criticism of the Adjudicator, nor of representatives who placed that objective material before him. However, the Adjudicators and representatives should always exercise great caution when considering objective material, and particularly when it is not actually before them but is in fact referred to only in a copy of the Tribunal’s decision.
13. We agree with Mr Davidson that this is not a speculative appeal. He is not arguing that there has been any improvement in the situation since the date of the Adjudicator’s determination and were that the case, we would of course be bound to follow the Court of Appeals decision in Oleed. Now, some 9 months after the Adjudicator had considered this appeal, the Tribunal have had the benefit of considering the objective situation as it was up to November last year and are satisfied that his removal to the United Kingdom will not cause his rights under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms to be breached.
14. The Secretary of State’s appeal is allowed.
Richard Chalkley
Vice President