Tribunal decisions

The decision

Heard at Field House

APPEAL
On 4 April 2003

MM (Risk on Return - Country Material) Angola [2003] UKIAT 00010

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

05/06/2003

Before:

Mrs J A J C Gleeson (Chairman)
Mr D R Bremmer

Between

APPELLANT

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

RESPONDENT

DETERMINATION AND REASONS

1. The Secretary of State appeals with leave against the determination of an Adjudicator (Mr D A W Chandler) allowing the respondent’s appeal against his decision to set removal directions to Angola after refusal of asylum. The respondent is a citizen of Angola.
2. At the hearing, Mr S Stevenson, Home Office Presenting Officer, appeared for the appellant. Mr J Gulvin of Counsel represented the respondent.
3. The Adjudicator allowed the respondent’s appeal on both asylum and human rights grounds. The appellant was not represented at the hearing due to operational difficulties.
4. Leave to appeal was granted, as the Tribunal considered that there was an arguable issue as to whether the respondent would now be at risk of persecution in Angola in the light of the current situation evidenced by the CIPU Report for April 2002 and the appellant’s Operational Guidance Note.
5. For the appellant, Mr Gulvin said that he accepted the Adjudicator’s finding of past persecution but that his future risk assessment was not sustainable, as he had ignored the peace process.
6. For the respondent, Mr Stevenson said that the CIPU Report had not been served on the respondent’s Counsel for the Adjudicator hearing (he had represented the respondent before the Adjudicator also). The appellant was not entitled to succeed on that basis. He had now looked at the October 2002 CIPU Report and submitted that it would be right to remit the appeal for rehearing.
7. He accepted that the present objective evidence suggested that there would be no great risk to the respondent if she were to be returned to Angola now, but the Adjudicator had the right not to reject her appeal where no Home Office Presenting Officer was available for the Adjudicator hearing. He asked the Tribunal to remit the appeal to be considered under the CIPU Report due for April 2003.
8. In reply, Mr Gulvin said that it was not the Secretary of State who sought to isolate the April 2002 CIPU Report. At paragraph 17 of the determination, the Adjudicator summarised the then situation, and that was plainly drawn from the April 2002 CIPU Report. He should have had regard to the totality of that report, not merely to its historical element. Paragraph 3 of the determination included a reference to the Secretary of State’s supplementary bundle, which contained the CIPU Report and the Adjudicator therefore did have it. We checked the file; it is there.
9. The Tribunal reserved its determination for postal delivery, which we now give. It is not open to the Adjudicator to disregard evidence of the peace process, which is clearly set out in the April 2002 CIPU Report. Nor can the respondent’s representative argue that as he was not personally served with the document (which is in the public domain) and did not trouble to look at it before the hearing, that excuses the Adjudicator’s omission. It does not. The respondent’s Counsel concedes that the October 2002 report, which he has now considered, shows ‘no great risk’ to family members of UNITA supporters. The Tribunal would go further than that; the risk is now below the Article 3 ECHR and Refugee Convention standard.
10. It has long been established that risk on return for the purposes of the Geneva Convention relating to the Status of Refugees 1951 and its protocols or the European Convention on Human Rights and Fundamental Freedoms 1950 must be considered at the date of hearing. Accordingly, the Adjudicator’s error in failing to consider the current position as set out in the April 2002 report makes his determination plainly wrong and unsustainable.
11. The Secretary of State’s appeal is allowed.
J A J C Gleeson
Vice-President
25 July 2013