Michaelmas Term [2010] UKSC 49 On appeal from: 2010 EWCA Civ 426

 

JUDGMENT
MA (Somalia) (Respondent) v Secretary of State for
the Home Department (Appellant)
before
Lord Phillips, President
Lord Walker
Lady Hale
Lord Mance
Sir John Dyson, SCJ
JUDGMENT GIVEN ON
24 November 2010
Heard on 11 October 2010
Appellant Respondent
Elisabeth Laing QC Richard Drabble QC
Deok Joo Rhee Graham Denholm
(Instructed by Treasury
Solicitor)
(Instructed by CLC
Solicitors)
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SIR JOHN DYSON SCJ (delivering the judgment of the court)
1. The issues raised by this appeal are whether the Court of Appeal (i) adopted
the wrong approach to the assessment of the impact of MA’s lies to the Asylum
and Immigration Tribunal (“AIT”) on his claim for international protection on the
basis of Article 3 of the European Convention on Human Rights (“ECHR”); and
(ii) impermissibly interfered with the assessment of the facts made by the AIT,
including the impact of MA’s lies on a relevant aspect of his claim. As will
become apparent, there was little debate or disagreement between the parties to
this appeal about the questions raised by the first issue, although they are
unquestionably of general importance. The second issue raises the question of how
far it is legitimate for an appeal court to interfere with the assessment of facts
made by a specialist tribunal on the grounds of error of law.
The facts
2. MA is a citizen of Somalia. He is a member of the Isaaq clan, sub-clan Habr
Yunis. He entered the United Kingdom illegally on 7 May 1995 and applied for
asylum on 24 May 1995. That application was refused on 14 February 1996, but he
was granted exceptional leave to remain until February 1997. He was then granted
further leave until 14 February 2000.
3. On 23 July 1998, he was convicted of rape and indecency with a child. He
was sentenced to eight years’ imprisonment. On 21 May 2002 the Secretary of
State for the Home Department (“the Secretary of State”) served him with a notice
of intention to make a deportation order.
4. MA appealed against the notice on human rights grounds. The Secretary of
State decided (under the Immigration Rules) that the grounds of appeal amounted
to a “fresh claim‟ for asylum; but refused the claim in a letter dated 26 June 2003.
MA appealed. His appeal was dismissed by an adjudicator on 25 November 2003.
On 5 April 2004, the Secretary of State made a deportation order, which was
served on MA on 19 April 2004. On 4 March 2005, MA’s solicitors made further
representations to the Secretary of State, who decided that these did not amount to
a “fresh claim”. Removal directions were set for 29 November 2006, but MA
applied for judicial review, raising issues under Article 3 of the ECHR.
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5. Following further submissions, on 1 February 2007 the Secretary of State
accepted that MA had made a “fresh claim‟ for asylum, but refused the claim. MA
appealed again.
6. In a determination promulgated on 19 April 2007, the AIT allowed his
appeal. They did so on human rights grounds only, as they held that the appellant
was precluded by section 72 of the Nationality, Immigration and Asylum Act 2002
from claiming protection under the Refugee Convention, and, by paragraph 339D
of the Immigration Rules, from claiming humanitarian protection.
7. The AIT accepted the concession made by the Secretary of State that MA
was a member of the Isaaq clan. They also found that he was from Mogadishu, and
that his parents were from Hargeisa in Somaliland. After considering evidence
about the situation of the Isaaq clan in Mogadishu, they held that the Isaaq in
Mogadishu were in the position of a minority clan who did not have protection,
and that he would be at a real risk of physical violence which crossed the Article 3
threshold.
8. The Secretary of State applied for an order requiring the AIT to reconsider
their decision. An order for reconsideration was made on 10 May 2007. At the
first-stage reconsideration hearing on 28 February 2008, Senior Immigration Judge
Spencer ordered a second-stage hearing at which the appeal would be determined
afresh. He further ordered that the limited positive credibility findings made by the
AIT about MA and their decision to prefer the evidence of Mr Höhne (MA’s
expert) to that relied on by the Secretary of State should be preserved.
9. MA’s appeal was re-heard on 18 December 2008, and in a determination
promulgated on 1 July 2009 the AIT dismissed the appeal. His application for
permission to appeal to the Court of Appeal was granted by Sedley LJ on 18
December 2009. In a judgment delivered on 23 April 2010 [2010] EWCA Civ 426,
the Court of Appeal allowed the appeal.
10. It will be necessary to examine parts of the AIT’s determination of 1 July
2009 and the decision of the Court of Appeal in some detail. In short, the Court of
Appeal held that, although the AIT directed themselves “impeccably”, they did not
apply that direction “properly” and they failed to take account of a material factor
in reaching their conclusion.
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The relevant country guidance decision of the AIT
11. The relevant country guidance for Somalia is to be found in the AIT
decision of AM and AM (armed conflict: risk categories)(Somalia) [2008] UKAIT
00091. At para 178, the AIT said:
“On the present evidence we consider that Mogadishu is no longer
safe as a place to live for the great majority of its citizens. We do not
rule out that notwithstanding the above there may be certain
individuals who on the facts may be considered to be able to live
safely in the city, for example if they are likely to have close
connections with powerful actors in Mogadishu, such as prominent
businessmen or senior figures in the insurgency or in powerful
criminal gangs. However, barring cases of this kind, we consider that
in the case of persons found to come from Mogadishu who are
returnees from the UK, they would face on return to live there a real
risk of persecution or serious harm and it is reasonably likely, if they
tried staying there, that they would soon be forced to leave or that
they would decide not to try and live there in the first place.”
The Standard of Proof
12. It was not contended in the Court of Appeal or in this court that the AIT had
applied the wrong standard of proof. It is well established that a breach of Article
3 of the ECHR is proved “where substantial grounds have been shown for
believing that the person concerned faced a real risk of being subjected to torture
or inhuman or degrading treatment” (Vilvarajah v UK (1991) 14 EHRR 248 para
103) (emphasis added). There was, however, some brief discussion before us on
the question whether it is appropriate to apply the civil test of the balance of
probabilities to some of the elements of what has to be proved in an Article 3
claim. This is a difficult topic which has occupied the attention of our courts in
recent years in the analogous context of extradition and Refugee Convention cases.
13. It was authoritatively decided by the House of Lords in R v Secretary of
State for the Home Department, ex p Sivakumaran [1988] AC 958 that in order for
a fear to be well-founded for the purposes of the Refugee Convention, there must
be a reasonable degree of likelihood that the applicant will be persecuted on return.
It will be seen that this test is expressed in slightly different terms from the Article
3 test. But no argument was addressed to this court to suggest that there is a
material difference between the two. Although it is not necessary for the
determination of this appeal to decide whether there is any difference, we are
inclined to the view that there is no practical difference between them. It would
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add considerably to the burdens of hard-pressed immigration judges, who are often
called upon to decide claims based both on the Refugee Convention and the ECHR
at the same time, if they were required to apply slightly different standards of
proof to the same facts when considering the two claims.
14. The question that was touched on in argument is whether the same standard
of proof should be applied in relation to the proof of past or existing facts as in
relation to the assessment of future risk. In the extradition context, in Fernandez v
Government of Singapore [1971] 1 WLR 987, the House of Lords had to interpret
section 4(1)(c) of the Fugitive Offenders Act 1967, which entitled the applicant to
avail himself of a prohibition on return if he “might” be restricted or detained if
extradited. Lord Diplock said that the “balance of probabilities” was a convenient
phrase to use in relation to the existence of facts; but was inappropriate when
applied not to ascertaining what had already happened, but to prophesying what, if
it happened at all, could only happen in the future (994A). In the latter situation,
Lord Diplock found that a lesser degree of likelihood was sufficient (994G).
15. Prior to Sivakumaran, it seems that the general view in extradition and
asylum cases was that past and existing facts should be determined according to
the civil standard of proof (ie on the balance of probabilities); and the lower test
propounded in Fernandez applied to assessing the risk of adverse treatment on the
basis of those facts. An example of this approach is to be found in R v Immigration
Appeal Tribunal, ex p Jonah [1985] Imm AR 7 (Nolan J).
16. Following Sivakumaran, it was unclear whether the “real risk/real
possibility” test should be applied to the proof of past and existing facts. In Kaja v
Secretary of State for the Home Department [1995] Imm AR 1 (IAT), the majority
rejected a two-stage test of a determination of past and present facts on the balance
of probabilities and an assessment of real risk in relation to future possibilities.
They held that the test of reasonable degree of likelihood should be applied to all
aspects of the determination. Following Kaja, the practice of the IAT was to apply
the “real possibility” test to past and present facts. In Horvath v Secretary of State
for the Home Department [2000] INLR 15, however, the Court of Appeal, obiter,
favoured the Jonah approach. Although Horvath was appealed to the House of
Lords, nothing was said by their Lordships as to the correctness of these
observations.
17. The Court of Appeal considered the issue fully in the asylum context in
Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449.
We do not propose to examine the judgments of Brooke and Sedley LJJ in detail
(with both of which Robert Walker LJ, as he then was, agreed). They endorsed the
approach of the majority in Kaja. The degree of probability of the occurrence or
non-occurrence of past events was no more than a relevant factor to be taken into
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account in deciding whether there was a well-founded fear of persecution. The
decision-maker was bound to take account of all material considerations when
making its assessment about the future.
18. GM (Eritrea), YT (Eritrea) and MY (Eritrea) v Secretary of State for the
Home Department [2008] EWCA Civ 833 (which we shall refer to as “GM
(Eritrea)”) was a group of three asylum cases which we shall consider in some
detail later in this judgment in the context of the question of the relevance of lies.
But in relation to the standard of proof, it may be worth recording that the Court of
Appeal stated that the applicants had to do no more than prove that there was a
reasonable degree of likelihood that the past facts that they asserted (viz that they
had left Eritrea illegally) were true.
19. This is consistent with the approach adopted by the Grand Chamber of the
ECtHR in relation to Article 3 claims in Saadi v Italy (App no 37201/06, 28
February 2008):
“132. In cases where an applicant alleges that he or she is a member
of a group systematically exposed to a practice of ill-treatment, the
Court considers that the protection of Article 3 of the Convention
enters into play when the applicant establishes …. that there are
serious reasons to believe in the existence of the practice in question
and his or her membership of the group concerned …” (emphasis
added).
20. Nevertheless, the approach in Jonah and Horvath to the ascertainment of
past facts may also be seen as consistent with the requirement for “substantial
grounds” or “serious reasons”. The argument before us, however, proceeded on the
basis that “real possibility” was the correct test to apply to past and present facts
both in Refugee Convention and Article 3 cases. Without deciding the point, we
are content to do the same in this appeal. We express no view on the issue which is
both difficult and important. We think it would be desirable for the point to be
decided authoritatively by this court on another occasion.
Relationship between lack of credibility and the assessment of risk
21. For appellants who appeal to the AIT in Refugee Convention or Article 3
cases, the stakes are often extremely high. The consequences of failure for those
whose cases are genuine are usually grave. It is not, therefore, surprising that
appellants frequently give fabricated evidence in order to bolster their cases. The
task of sorting out truth from lies is indeed a daunting one. It is all too common for
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the AIT to find that an appellant’s account is incredible. And yet there may be
objective general undisputed evidence about the conditions in the country to which
the Secretary of State wishes to send the appellant which shows that most of the
persons who have the characteristics of, or fall into the category claimed by, the
appellant would be at real risk of treatment contrary to Article 3 of the ECHR or
persecution for a Refugee Convention reason (as the case may be), but that a
minority of these, because of special circumstances, are not subject to such risk.
How should the AIT approach such general evidence where they do not believe the
evidence given by the appellant that bears on the question of whether such special
circumstances apply? That was the problem which confronted the AIT in the
present case. The Secretary of State wished to return MA to Somalia. This
involved sending him to Mogadishu. The objective evidence about conditions in
Somalia was that only a person who had close connections with powerful actors
(such as prominent businessmen or senior figures in the insurgency or in powerful
criminal gangs) was likely to be safe if returned to Mogadishu. MA gave a great
deal of conflicting evidence to the effect that he had no connections in Mogadishu
at all. The AIT found that he had not told them the truth about his links and
circumstances in Mogadishu (para 109). But they were unable to find positively
that he did have connections there, still less that he had close connections with
“powerful actors”.
22. A similar problem arose in GM (Eritrea). The undisputed objective
evidence in these cases was that there was a reasonable likelihood that a person
who left Eritrea illegally would be persecuted on return. The question for the AIT
was whether there was a reasonable likelihood that the appellants had left Eritrea
illegally. Each of the appellants gave an account about his or her exit from Eritrea
which was almost entirely disbelieved. The issue was whether, in those
circumstances and in the light of the objective background evidence, the AIT had
been entitled to find that it was not reasonably likely that the appellants had left
illegally. The objective evidence was that more people left Eritrea illegally than
legally, but that there were classes of people who could leave legally (party
activists, Ministers and ex-Ministers, persons over 40 who wished to visit relatives
or go on Haj and government officials), and that those classes were not closed (eg
it included those who had obtained student visas).
23. All three members of the Court agreed that two of the appeals (those of GM
and YT) should be dismissed. In these cases, Buxton LJ (with whom Laws and
Dyson LJJ agreed) stated:
“39. …. While they are unlikely to have fallen into any of the
categories reported in para 9 above, they were of an age to have
moved into the student category envisaged by the AIT. Since they
put forward no truthful material about what they were doing in the
relevant period, it is in my view impossible to say that there is a
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reasonable degree of likelihood that during that period the appellants
did not move into the student category.
40. At the same time, it is equally impossible to say that it is likely
that they did enter that category. That however is not the test. Mr
Nicol was wrong in suggesting that it was for the Secretary of State
to produce evidence to that effect. That would indeed be to reverse
the burden of proof. As this court put it in Ariaya and Sammy v
Secretary of State for the Home Department [2006] EWCA Civ 40,
cited in para 12 above, it may not be necessary for the appellant in
such circumstances to say much, but he must say something, adduce
some evidence that puts him in a vulnerable position, before the
effective burden of contradicting his case passes to the Secretary of
State.”
24. The third appeal concerned MY. The AIT found that MY (a 17 year old
girl) had failed to show that she had left Eritrea illegally, because she had not
given credible evidence as to how she had left the country. The objective evidence
showed that there were categories of 17 year old girls who were allowed to leave
the country legally. Buxton LJ would have allowed the third appeal, but Laws and
Dyson LJJ agreed that it, too, should be dismissed.
25. In assessing the argument in the case of MY, Buxton LJ said (para 43) that
her age alone made it very difficult indeed, even arguably, to fit her into any of the
categories of person who might obtain exit visas, including the student category.
That being so, he held (para 44) that the immigration judge should have
considered, on the basis of all the evidence, “whether there was a reasonable
degree of likelihood that during her residence in Eritrea MY did not fall into one of
the categories that could or might leave the country legally”. He said (para 45) that
“the failure of the [evidential] case advanced by the appellant does not lead as a
matter of necessity to the failure of her case if there is other evidence of general
circumstances or probabilities against which what little is known about the
applicant can be assessed”. Finally, at para 46, he expressed himself in these terms:
“The evidence referred to above, and despite MY’s failure to give
truthful evidence either about her activities in Eritrea or about her
actual exit from that country, drives me to the conclusion that even
though I cannot say how MY actually left Eritrea, there must, if only
by elimination of other possibilities, be a reasonable likelihood that
she left illegally.”
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26. Laws LJ, with whom Dyson LJ agreed, said that the “concrete question for
the immigration judge was whether there was a reasonable degree of likelihood
that MY had left Eritrea illegally” (para 51); there may be cases where the
appellant’s testimony is disbelieved but other evidence proves his/her asylum
claim (para 52). He continued:
“53. In my judgment that circumstance poses great difficulties for
MY’s case. The fact (if it be so) that it is reasonably likely that any
17 year old girl from Eritrea, about whom nothing else relevant is
known, left the country illegally does not entail the conclusion that
this particular 17 year old girl did so. The reason is that the
probability that a particular person has or has not left illegally must
depend on the particular facts of her case. Those facts may produce a
conclusion quite different from that relating to illegal exit by
members of such a class of persons about whose particular
circumstances, however, the court knows nothing more than their
membership of the class. There may indeed be a general probability
of illegal exit by members of the class; but the particular facts may
make all the difference. I think with respect that this consideration
lies behind the observations approved by Richards LJ in Ariaya and
Sammy v Secretary of State for the Home Department [2006] EWCA
Civ 40, and para 449 in MA, which Buxton LJ cites at paras 12 and
13.
54. The position would only be otherwise if the general evidence was
so solid as to admit of only fanciful exceptions; if the court or
tribunal concluded that the 17 year old must have left illegally
whatever the particular facts.”
27. He then applied this approach to the facts of MY’s case. At para 57 he said
that, since her account of her departure had been rejected by the immigration
judge, her claim could not succeed on the basis of “general” evidence unless “the
possibility that the particular facts may make a difference is effectively excluded”.
28. Dyson LJ agreed that MY’s appeal should be dismissed substantially for the
reasons given by Laws LJ. At para 61, he said:
“Unless it can safely be said that exit by any 17 year old girl is
illegal, whether it is reasonably likely that the exit by an individual
17 year old girl was illegal will depend on the facts of her particular
case. Her failure to give a credible account of those facts may lead to
the conclusion that she has not shown that there is a reasonable
likelihood that her exit was illegal. ”
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29. Like Laws LJ, he concluded on the basis of the general evidence that “it
was entirely possible that MY left Eritrea legally” (para 64).
30. The appeal to this court has been conducted on the basis that the approach
adopted by Laws and Dyson LJJ is substantially correct. But Mr Drabble
questioned para 54 of Laws LJ’s judgment. We think that what Laws LJ had in
mind was a case where (i) the claimant’s account is rejected as wholly incredible
(it is riddled with contradictions and the tribunal is left in a state of being unable to
believe anything that the claimant has said); but (ii) there is undisputed objective
evidence about conditions in the relevant country which goes a long way to
making good the shortcomings in the claimant’s own evidence. In GM (Eritrea),
for example, the AIT did not believe the account given to them by MY as to how
she had left the country. They could not, therefore, rely on her account as a basis
for concluding that she had left the country illegally. But if there had been
objective evidence that no 17 year old girls were allowed to leave the country, her
appeal would surely have succeeded despite her dishonest evidence. In fact, the
objective evidence did not go nearly that far and the appeal was dismissed.
31. What Laws LJ was saying at para 54 was that, where a claimant tells lies on
a central issue, his or her case will not be saved by general evidence unless that
evidence is extremely strong. It is only evidence of that kind which will be
sufficient to counteract the negative pull of the lie. But much depends on the
bearing that the lie has on the case. The Court of Appeal correctly stated at para
104 of its judgment in the present case:
“The lie may have a heavy bearing on the issue in question, or the
tribunal may consider that it is of little moment. Everything depends
on the facts. For example, if in the Eritrea cases the Secretary of
State had prima facie evidence that the appellants had left legally, the
tribunal might think it appropriate to put considerable weight on the
fact that the claimant told lies when seeking to counter that evidence.
The lie might understandably carry far less weight where, as in YL
itself, the judge is satisfied that the appellant has lied where the lie is
against her interests.”
32. Where the appellant has given a totally incredible account of the relevant
facts, the tribunal must decide what weight to give to the lie, as well as to all the
other evidence in the case, including the general evidence. Suppose, for example,
that at the interview stage the appellant made an admission which, if true, would
destroy his claim; and at the hearing before the AIT he withdraws the admission,
saying that his answer at interview was wrongly recorded or that he misunderstood
what he was being asked. If the AIT concludes that his evidence at the hearing on
this point is dishonest, it is likely that his lies will assume great importance. They
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will almost certainly lead the tribunal to find that his original answers were true
and dismiss his appeal. In other cases, the significance of an appellant’s dishonest
testimony may be less clear-cut. The AIT in the present case was rightly alive to
the danger of falling into the trap of dismissing an appeal merely because the
appellant had told lies. The dangers of that trap are well understood by judges who
preside over criminal trials before juries. People lie for many reasons. In R v Lucas
[1981] QB 720, the Court of Appeal had to consider whether a statement
containing a lie was capable of amounting to corroboration. At p 724F, Lord Lane
CJ said:
“To be capable of amounting to corroboration the lie told out of
court must first of all be deliberate. Secondly, it must relate to a
material issue. Thirdly, the motive for the lie must be a realisation of
guilt and fear of the truth. The jury should in appropriate cases be
reminded that people sometimes lie, for example, in an attempt to
bolster up a just cause, or out of shame or out of a wish to conceal
disgraceful behaviour from their family….”
33. Although the analogy is not exact, it is close enough for these words to be
of relevance in the present context. So the significance of lies will vary from case
to case. In some cases, the AIT may conclude that a lie is of no great consequence.
In other cases, where the appellant tells lies on a central issue in the case, the AIT
may conclude that they are of great significance. MA’s appeal was such a case.
The central issue was whether MA had close connections with powerful actors in
Mogadishu. The AIT found that he had not told the truth about his links with
Mogadishu. It is in such a case that the general evidence about the country may
become particularly important. It will be a matter for the AIT to decide whether
the general evidence is sufficiently strong to counteract what we have called the
negative pull of the appellant’s lies.
The AIT’s determination in more detail
34. This was a second stage reconsideration at the behest of SIJ Spencer who
had decided that there was a material error of law in the earlier decision in “failing
to consider whether the appellant would be able to make arrangements for
protection by the Hawiye through his connections with the Isaaq”. The
immigration judge added: “I take the view that in this regard the appellant had at
least an evidential burden, which he failed to discharge, since what contacts and
relationships he had was exclusively within his own knowledge and not that of the
Secretary of State”. Thus the nature of those connections was of central
importance at the second stage reconsideration.
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35. At para 17 of their determination, the AIT recorded that it was for MA to
prove his case. He had to show that there was a real risk of his suffering ill
treatment of such severity that his Article 3 rights would be breached. MA gave
evidence to the tribunal. He did not need an interpreter. He gave conflicting
accounts about his connections with Mogadishu. For example, para 31 of the
determination records that his SEF form showed that his family tried to leave
Somalia for Kenya, but had found that too risky. His evidence before the tribunal
was that his family left Somalia for Kenya together in 1992 or 1993. But para 45
of the determination states that in his application form he said that he left his
family behind in Somalia when he fled to Kenya in 1994. Para 48 records that MA
said that he left his family behind in Somalia, but they followed him to Kenya
later. Para 54 refers to his interview on 12 September 2002 when he said that,
when he left Kenya for the UK, he believed that his family was in Somalia,
although he did not know whether they were safe there. This is to be contrasted
with his witness statement dated 27 July 2008 in which he said that he last saw his
parents in Kenya when he was leaving for the UK.
36. He said that his mother was in South Africa and his father divided his time
between South Africa and Kenya. He accepted that he had spoken to his sister
about their parents while he was in prison. He said that she had told him that she
did not know where they were. And yet in his witness statement he had said that he
was in contact with his sister while he was in prison and she had told him that their
parents were fine, but did not say where they were. Unsurprisingly, the AIT found
that it was so unlikely that his sister would know that her parents were fine but not
know where they were, that they found MA’s account as to what he knew about
the whereabouts of his parents incredible. MA told the AIT that he had not been in
contact with his parents because he did not know how to contact them, but he was
in contact with his sister. He gave no satisfactory answer as to why he did not
contact his parents.
37. The AIT then reviewed the expert evidence of Marcus Höhne on behalf of
MA. At para 88, they said:
“[W]e emphasise that although we have indicated our findings when
we have considered the submissions, and, in places, the evidence, we
did not make any findings until we had considered the entirety of the
evidence in the round, with the submission made.”
38. At para 104, they said that the submission made on behalf of the Secretary
of State that MA was “not believable and could not prove his case” was “wholly
justified”. They continued:
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“105. The Tribunal is not unfamiliar with the difficulties created by
appellants who have not been truthful but who still may be at risk.
This was considered by the Court of Appeal in GM (Eritrea) v
Secretary of State for the Home Department [2008] EWCA Civ
833. We must be very careful not to dismiss an appeal just because
an appellant has told lies. Even if very large parts of his story have
been disbelieved it is still possible that the appellant has shown that
he would be at risk on return. An appellant’s own evidence has to be
considered in the round with other evidence and that can include
unimpeachable evidence from expert reports or country guidance
cases or other evidence about the general state of affairs in that
country.
106. For reasons very properly emphasised by Mr Drabble and
spelled out in the case of AM, Mogadishu is a desperately difficult
place and it is probably not going too far to say that the respondent
should think twice before making anybody go there against his or
her will.
107. We do not believe the appellant but we have to decide if the
background conditions show that he will be at risk. In para 178 of
AM the Tribunal identified people as examples of people who may
be safe in Mogadishu. The Tribunal said: “We do not rule out that
notwithstanding the above there may be certain individuals who on
the facts may be considered to be able to live safely in the city, for
example if they are likely to have close connections with powerful
actors in Mogadishu, such as prominent businessmen or senior
figures in the insurgency or in powerful criminal gangs. However,
barring cases of this kind, we consider that in the case of persons
found to come from Mogadishu or returnees from the UK, they
would face on return to live there a real risk of persecution or serious
harm…”
108. We are not able to find positively that the appellant is a person
with close connections with powerful actors in Mogadishu and so
on.
109. The difficulty is that the appellant has not told us the truth
about his links and circumstances in Mogadishu and we cannot
exclude the possibility that he is a person with connections of this
kind. The point is that it is not fanciful to say that he would not
necessarily be at risk on return. Some people are not. Even though
the appellant has to prove only a real risk rather than a probability of
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him being at risk we cannot make the necessary findings when he
will not tell the truth about his connections and contacts there.

……………
118. [Mr Drabble] submitted that it was fanciful to suggest that the
appellant came into any of the categories of people identified at para
178 of AM as being not at risk. The appellant would be at risk in
Mogadishu and his appeal should be allowed.
119. Drawing all these things together we find that this appellant
would be returned to Mogadishu. We find that he has links with
Somaliland and would probably be accepted by the community there
if he could get there. We find that it would be dangerous in fact too
dangerous for him to travel from Mogadishu to Somaliland if he is
telling the truth when he claims not to have any links with the
country. We accept that some people do make the journey. There is
no clear evidence about how they travelled. We cannot find that this
appellant could follow their example. It is clearly the case (and no
one has suggested otherwise) the appellant would be allowed
through the airport at Hargeisa. Whilst we accept that the risks
diminish as a traveller gets further away from Mogadishu a traveller
has to get away from Mogadishu before that becomes an advantage
and there are risks travelling around there. This appellant is going to
be at risk if we accept his evidence of having no contacts there.
120. We do not accept his evidence about that. He was manifestly
untruthful. We have reflected carefully on this because we are aware
of the time that has elapsed, of which a full explanation has been
given, since the appeal was heard. It is not a matter of nuance or
inference. The appellant is blatantly untruthful and no passage of
time has impacted our findings on that point.
121. Para 178 of AM does not give an exclusive list of people who
are not at risk. It makes the point there are people who are not at
risk. The burden is on the appellant and he has not told the truth
about his links with Mogadishu and we are not able to say that he is
a person who has shown he would be at risk there. He has stopped
proper enquiry of a kind that might reveal the links and protection he
would have. It would be very sad if, by so doing, the appellant has
deprived himself of protection that he would otherwise need but he
has told lies and must accept the consequence of that. It does
diminish his credibility and makes it harder for him to prove his
case.
122. In all the circumstances we dismiss the appeal.”
Page 15
Decision of the Court of Appeal
39. The court summarised the two submissions made by Mr Drabble. The first
was that the AIT could not properly have concluded in the light of the country
guidance given in AM and AM, as they did at para 109, that it was not “fanciful” to
say that MA may not be at risk on return. The court rejected this submission. At
para 110 of their judgment, they said that the AIT were entitled on the basis of AM
and AM to conclude that this case “did not fall into the category of case identified
by Laws LJ in GM where the general evidence would suffice, because anyone in
MA’s situation would necessarily be subject to persecution on return.”
40. The second submission was that the AIT had misdirected themselves when
considering the question of risk on return. They had focused on the difficulties
caused by MA’s failure to tell the truth, but they should have asked whether there
was other evidence relating to MA’s own particular situation, even if his own
rejected testimony was left out of account, which would support his case. Mr
Drabble submitted that there was such evidence which the Tribunal failed properly
to evaluate. This was summarised by the Court of Appeal at para 113 in these
terms:
“The evidence he relies upon is in particular the fact that the
appellant has been in the UK for some 15 years, and that for almost
all of the last 12 or so he has been in detention of one sort or another.
In addition, his parents were from Hargeisa, not Mogadishu, and the
evidence of Mr Höhne was to the effect that he would not get
protection from the Isaaq clan in Mogadishu given the dramatic
evacuation from that city. In the circumstances, Mr Drabble submits
that it is fanciful to think that the appellant would be likely to fall
into the exceptional category of persons with contacts in Mogadishu
who could provide the requisite protection.”
41. At para 116, the court acknowledged that the AIT had directed themselves
impeccably at para 105 of the determination. But they said that the tribunal had not
properly applied that direction. They continued:
“117. We think, with respect to the Tribunal, that it is there adopting
the wrong approach. Their analysis suggests that the fact that the
appellant has lied has of itself disabled them from reaching a
conclusion on the article 3 risk. They seem to be throwing up their
hands in despair; since the appellant has concealed the truth, they
cannot make any necessary findings. This is further confirmed by
para 121 when they say that because his lying has prevented a full
Page 16
and proper inquiry, there is no relevant finding the Tribunal can
make.
118. That does not, however, follow from GM. They first have to ask
whether there is other evidence, independently of his unreliable
testimony, casting light on the appellant’s particular situation. If so,
they must have regard to that evidence. As Buxton LJ put it in GM
see para 98 above), there does not need to be much evidence, only
sufficient to suggest that there is a real risk of persecution and
thereby shift the burden to the Secretary of State to show otherwise.
Nowhere does the Tribunal say that the only potential evidence is the
appellant’s rejected testimony and that without it there is no relevant
evidence, and we do not think that it can be fairly inferred from their
decision that this was how they approached the matter. For example,
there is no reference in the whole judgment to the fact that the
appellant has spent the best part of the last 12 years in prison or
administrative detention in the UK. In our view that must on any
view have relevance to the likelihood of this particular appellant
having current contacts in Mogadishu which will afford him the
necessary protection.
119. In any event, in our judgment, if they did analyse the issue in
that way, we agree with Mr Drabble that it was not a conclusion
open to them on the evidence. That evidence was that the appellant
was from a clan which was in the minority in Mogadishu; that he had
not been there for some 15 years; and that for most of that time he
had been in detention. Whatever links might exceptionally exist to
provide protection for an Isaaq returning to Mogadishu, there was in
our view sufficient evidence adduced before the Tribunal at least to
establish a real risk that it was unlikely to apply to him. He was not
simply putting himself into the general category of persons returning
to Mogadishu, nor even of a minority clan member taking that step,
and then relying on the relevant statistics as to how such persons
would in general be treated. There was the particular feature of his
history in the UK -the lengthy period and the fact of detention –
which constituted evidence relevant to the particular and specific
risks which he faced and which enabled the court to make an
assessment of risk on the basis of evidence independent of his own
testimony.
120. We agree that the Tribunal ought to have made an assessment
on the basis of that evidence, and had they done so, they must have
concluded that there was a real risk that he would not obtain the
relevant protection. Without it, in the light of AM and AM he was
plainly at risk of adverse article 3 treatment, and therefore his
deportation would be unlawful.”
Page 17
Should the Court of Appeal have interfered in this case?
42. It is important to note what the Court of Appeal did not say. They did not
say that the AIT had misdirected themselves as to the correct test to be applied
whether in relation to Article 3 cases generally or as to the impact of lies. They
accepted that the AIT were right to direct themselves in accordance with the
majority in GM (Eritrea). They acknowledged that the AIT did not commit the
cardinal error of dismissing the appeal simply because MA had told lies. The error
they identified in the AIT’s approach was in relation to the application of GM
(Eritrea). In summary, they made two criticisms. First, they said that paras 109
and 121 of the AIT’s determination showed that they did dismiss the appeal simply
because MA had told lies. As they put it at para 117 of their judgment, “[t]hey
seem to be throwing up their hands in despair; since the appellant has concealed
the truth, they cannot make any necessary findings”. Secondly, they said that the
AIT overlooked significant material which enabled the court to make an
assessment of risk independent of MA’s testimony and which, if it had been taken
into account, must have led to the conclusion that there was a real risk that he
would not obtain the relevant protection.
43. Before we examine these two criticisms, we need to make some general
points about the proper role of the Court of Appeal in relation to appeals from
specialist tribunals to it on the grounds of error of law. Although this is not virgin
territory, the present case illustrates the need to reinforce what has been said on
other occasions. The court should always bear in mind the remarks of Baroness
Hale of Richmond in AH (Sudan) v Secretary of State for the Home Department
[2007] UKHL 49, [2008] 1 AC 678 at para 30:
“This is an expert Tribunal charged with administering a complex
area of law in challenging circumstances….[T]he ordinary courts
should approach appeals from them with an appropriate degree of
caution; it is probable that in understanding and applying the law in
their specialised field the Tribunal will have got it right….They and
they alone are judges of the facts…Their decisions should be
respected unless it is quite clear that they have misdirected
themselves in law. Appellate courts should not rush to find such
misdirections simply because they might have reached a different
conclusion on the facts or expressed themselves differently.”
44. Those general observations were made in a case where the Court of Appeal
had allowed an appeal against a decision of the AIT. The role of the court is to
correct errors of law. Examples of such errors include misinterpreting the ECHR
(or in a refugee case, the Refugee Convention or the Qualification Directive);
misdirecting themselves by propounding the wrong test on some legal question
Page 18
such as the burden or standard of proof; procedural impropriety such as a breach of
the rules of natural justice; and the familiar errors of omitting a relevant factor or
taking into account an irrelevant factor or reaching a conclusion on the facts which
is irrational.
45. But the court should not be astute to characterise as an error of law what, in
truth, is no more than a disagreement with the AIT’s assessment of the facts.
Moreover, where a relevant point is not expressly mentioned by the tribunal, the
court should be slow to infer that it has not been taken into account.
46. We turn to the first of the Court of Appeal’s criticisms. In our view, the
court was wrong to interpret paras 109 and 121 of the determination as if the AIT
were saying that they were dismissing the appeal because MA’s account was
incredible. In the light of the clear and impeccable self-direction set out only a few
paragraphs earlier (at para 105), and having regard to the need for restraint to
which we have referred, the court should surely have been very slow to reach the
conclusion that it did. It should only have interpreted these paragraphs in the way
that it did if there was no doubt that this is what they meant. It is often easy enough
to find some ambiguity or obscurity in a judgment or determination, particularly in
a field as difficult and complex as immigration, where the facts may be difficult to
unravel and the law difficult to apply. If, as occurred in this case, a tribunal
articulates a self-direction and does so correctly, the reviewing court should be
slow to find that it has failed to apply the direction in accordance with its terms.
All the more so where the effect of the failure to apply the direction is that the
tribunal will be found to have done precisely the opposite of what it said it was
going to do. The striking feature of the present case is that the Court of Appeal was
of the view that at para 109, the AIT failed to apply the direction that they had set
for themselves only four paragraphs earlier.
47. In our view, there was no need to interpret paras 109 and 121 in the way
that the Court of Appeal did. There is an interpretation of these paragraphs which
is consistent with the self-direction at para 105 and is unimpeachable. In our view,
all that the AIT were saying at para 109 was that, because MA had not told the
truth about his links and circumstances in Mogadishu, the possibility that he was a
person with connections in Mogadishu could not be excluded. In other words, he
had not discharged the burden of proof which the AIT had correctly said rested on
him. The fact that the AIT were considering the burden of proof is demonstrated
by the last sentence of para 109: “Even though the appellant has to prove only a
real risk…we cannot make the necessary findings when he will not tell the
truth…” (emphasis added). So too at para 121 which we have set out at para 38
above. The third sentence says: “The burden is on the appellant and he has not told
the truth about his links with Mogadishu…”. Later in the paragraph, the AIT says
that MA has told lies: “It does diminish his credibility and makes it harder for him
to prove his case” (emphasis added).
Page 19
48. In our view, on a fair reading of paras 109 and 121 in the light of para 105,
it is clear that the AIT were not throwing up their hands and rejecting MA’s appeal
because he had lied without more. They were saying that, because he had told lies,
they were unable to make any relevant findings and the appeal failed because MA
had not discharged the burden of proof.
49. We turn to the second criticism. The first limb of this criticism is that the
AIT overlooked the fact that MA had spent the last 12 years in prison and
administrative detention in the UK. It is true that there is no explicit reference to
this fact in the determination. But the AIT were well aware of it. As we have
already said, they considered the extent of his contact with his family when he was
in prison during this period and set out MA’s conflicting evidence at length at
paras 35 to 65 of the determination. There are various references to his having
been in prison (paras 35, 40, 59, 60, 61 and 64). In these circumstances, there is no
warrant for holding that the AIT failed to have regard to the fact that MA was in
custody or detention. They said in terms at para 88 that they had considered “the
entirety of the evidence in the round”. This was a detailed and careful
determination running to 122 paragraphs. For that reason, as well as because of the
need for restraint to which we have referred, the court should have been very slow
to reach the conclusion that the AIT had not taken into account the fact that MA
was in custody and detention for 12 years. It was obvious from his own evidence
that MA was able to communicate with some members of his family, presumably
by using his mobile phone. In these circumstances, the tribunal is likely to have
thought that the fact that MA was deprived of his liberty for 12 years would not
prevent him from maintaining his connections with the outside world. It is of some
significance that in his detailed skeleton argument for the appeal to the AIT, Mr
Drabble made the point at paras 20 to 22 that MA’s case was that he had no
knowledge of or contact with his family or friends in Somalia. But he did not say
that MA would be unlikely to have such knowledge or contact because he was in
prison and then administrative detention.
50. This brings us to the other limb of the second criticism made by the Court
of Appeal, which is that, if the AIT had taken into account the fact that MA had
been in prison and detention for 12 years, “they must have concluded that there
was a real risk that he would not obtain the relevant protection.” If this had been
such an inevitable conclusion to draw from the fact of custody and detention for 12
years, it is indeed surprising that Mr Drabble did not invite the AIT to make it in
his skeleton argument. Although they did not use the language of perversity, what
the Court of Appeal were saying in effect was that it would have been perverse of
the AIT not to draw this conclusion if they had thought about the significance of
the custody and detention. In our view, this is quite untenable. It was possible that
the deprivation of liberty for 12 years would have prevented MA from maintaining
or developing the necessary protective links. But it was certainly not inevitable. It
was for the AIT to assess the matter in the light of all the evidence.
Page 20
Conclusion
51. We would, therefore, allow this appeal. The AIT did not adopt the wrong
approach in their assessment of the impact of MA’s lies and there was no error of
law in their determination which warranted interference by the Court of Appeal.