Arsanova v Secretary of State for the Home Department [2003] EWCA Civ 1118

Case No C1/03/0247[2003] EWCA Civ 1118
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Monday, 14th July 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE JUDGE
MR JUSTICE HOLMAN
Between
TAMILA ARSANOVAAppellant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR S TAGHAVI (instructed by Anthony Louca Solicitors, London, NW1) appeared for Appellant.MISS J ANDERSON (instructed by Treasury Solicitor) appeared for Respondent.
J U D G M E N T(As approved by the Court)
Crown copyright©

LORD JUSTICE JUDGE:

[1]This is an appeal, with leave of the full court, against a determination of the Immigration Appeal Tribunal ("the IAT") dated 31st October 2002, dismissing the appellant's appeal against the rejection of her claim for protection under the United Nations Convention Relating to the Status of Refugees 1951 and 1967 Protocol and, indeed, the European Convention for the Protection of Human Rights 1950.[2]The appellant was born in August 1970 in Chechnya. She is of Russian extraction. She claims to have left Russia on or about 6th September 1997, travelling hidden in the back of a lorry through Poland and France. At the time she was heavily pregnant. She entered the United Kingdom on or about 12th September and claimed asylum on 15th September. Her son was born just under two months later in the United Kingdom.[3]I shall first deal with the refusal by the Secretary of State. The decision letter is dated 14th May 2001. The refusal proceeded on the basis that the appellant feared persecution in Chechnya because she was an ethnic Russian, whose husband, an ethnic Chechen, was shot and killed on 1st April 1997. After his death she said that she did not feel safe in Chechnya as an ethnic Russian. She was recorded as asserting that her husband's brother-in-law wanted to kill her because she was not an ethnic Chechen.[4]When considering the application the Secretary of State addressed the question whether or not the appellant could move to another part of Russia:
"The Secretary of State notes, however, that you are an ethnic Russian."
He went on to reflect on the sheer size of that country which he described as the largest in the world, saying that he could find no plausible reason, in the light of the appellant's ethnicity, as to why she could not have moved to another part of Russia before seeking international protection. He went on to state that he did not accept that:
"if you did move to another part of Russia you would be persecuted for a Convention reason."
In effect, therefore, although there was understanding of the difficulty relating to the appellant's Russian ethnicity when she was married to an ethnic Chechen, the Secretary of State concluded that the application for asylum should fail because there must have been plenty of places in Russia itself in which this particular individual could find somewhere to live. In other words, from the outset the issue of internal flight or relocation was alive.[5]An appeal to the special adjudicator was then launched. At the outset of the hearing applications were made for the hearing to be adjourned. The first ground was based on the appellant's fitness. That was not seriously pursued, counsel in the end indicating to the special adjudicator that he was ready to go ahead. However, a different and further application was made, this time on the basis that the appellant needed further time to obtain an expert's report to assist with the consequences of information then recently disclosed by the appellant to her counsel, that she was married to a leading Chechen rebel and this would have adverse consequences on her in other parts of Russia.[6]The special adjudicator refused that application and decided that the appellant could give evidence about her involvement with what was described then and has continued to be described as the Arsanov clan, and he also said that he would admit such evidence as she produced by way of lists that day. Accordingly, the appeal proceeded. The appellant gave evidence. She produced her list. Her appeal was dismissed. The written decision was promulgated on 11th March 2002. The determination starts by explaining the reasons why the application for adjournment were refused. The evidence given by the appellant was summarised in considerable detail between paragraphs 20 and 34. It is unnecessary to read them out in the present judgment. Thereafter, the information in the asylum interview was reviewed.[7]The special adjudicator expressed himself in terms which suggested that he was sceptical about the appellant's claim that she was in fear of returning to Russia "because her surname was synonymous with terrorism". He did, however, conclude that her claim to be in fear of her husband's family may have been true. He then went on to say that if that were true, she could have gone to a different part of Russia to escape.[8]The problem can be summarised very briefly. According to counsel who was present at the hearing before the adjudicator, counsel then acting for the Secretary of State had told the adjudicator that the only issue before him was that of internal flight. That recollection is supported, if it needs to be, by a statement from the appellant herself, which reads as follows:
"I confirm that at the hearing before the special adjudicator counsel for the Secretary of State indicated that his instructions were that the Secretary of State had decided to not remove me to Chechnya. He indicated that removal would be to Moscow. He went on to say that the only issue in the appeal was internal flight. At the time I did not know what the term internal flight meant. I also confirm that counsel for the Secretary of State only asked me questions about whether I could relocate in Russia and that in his closing submissions only made submissions about internal flight and did not take issue with my claim to not be safe in Chechnya. I wish to confirm that I also do not recall the special adjudicator either suggesting that I could return safely to Chechnya or questioning me about the truthfulness of my assertion that I could not safely return to Chechnya."
[9]Permission to appeal to the Immigration Appeal Tribunal against this decision was granted on 26th April 2002. The argument was that the adjudicator had not given proper consideration to the question of internal flight. The particular ground read:
"The special adjudicator failed to take into account a relevant consideration, namely whether the appellant's relocation to another part of Russia would be unduly harsh."
It was contended that no findings had been made on that issue by the special adjudicator. Permission was given to appeal on other grounds as well, but it is unnecessary to go into them.[10]Immediately before the hearing of the appeal to the I.A.T., on 7th June 2002, the appellant's solicitors produced the expert report the absence of which formed the second ground for the application for an adjournment before the special adjudicator. On 10th June the appeal was heard. On 31st October in a written determination the appeal was dismissed, and permission to appeal to this court was also refused.[11]The determination of the I.A.T. again briefly summarised the essential facts. It recorded that in the asylum interview the appellant had explained her fear of her husband's family and the inevitable trauma of living in what was described as a war situation. She also complained that investigations into the circumstances in which her husband had died had been unsuccessful. The determination then went on to record the evidence called before the special adjudicator, noting that the adjudicator had rejected the appellant's explanation for her failure to explain her concerns arising from her surname, and its link with the clan and its association with terrorists, which would of course mean that she would be in difficulty in moving to a different part of Russia.[12]With some reluctance, the I.A.T. also admitted a report by Mr Robert Chenciner. The I.A.T. itself points out that there is no connection whatever to be drawn from the similarity between the expert's name and Chechnya. It was submitted by counsel that the essence of the appeal was whether it was safe to send the appellant back to Russia given that her name was Arsanova. The I.A.T. concluded that the views expressed by Mr Chenciner were "an over-enthusiastic attempt to respond favourably to the questions put to him by the appellant's solicitors." They recorded that his views were not "held by other experts and commentators". That conclusion was based on a letter from the appellant's solicitors which had accompanied Mr Chenciner's report, stating that the solicitors "had been seeking to obtain an expert report since prior to the hearing before the adjudicator and had approached academics from the University of Leeds, School of Oriental and African Studies and Safer World", but "none had felt that they had the expertise in preparing the report." There is in my view a difference between the inability of an expert to claim the necessary expertise for the purposes of a report and the conclusion that the views expressed by one expert were not held by the other experts who had been approached.[13]In the end, the I.A.T. concluded that the appellant's surname would not expose her to a real risk of persecution or breach of protected human rights if she were returned to Russia. The reasons were set out in some detail, but in the end the I.A.T. was in agreement with the adjudicator that, if the appellant was in fear of return to Russia because her surname was synonymous with terrorism, she would have said so much earlier than she did.[14]Having noted that counsel had specifically argued the issue of internal flight, the I.A.T. itself did not address the issue at all. Indeed, we know that this was a quite deliberate decision. When refusing permission to appeal, and referring to the question of internal flight, the I.A.T. stated that this question was "completely irrelevant in light of the decision at both levels and should not have been raised in these grounds." With that observation I disagree, although I agree with the additional comment, "that the application and its attachments were overlong."[15]The conclusion of the I.A.T. on the issue of internal flight has been criticised. In the result, after the arguments have been developed, the only ground of appeal which requires examination relates to the issue of internal flight and whether, and if so the extent, of the problems which the appellant and her son would face if they were returned to Russia. It was contended before the I.A.T., certainly on paper, that it was a requirement of the internal flight solution that the end result should be a proper viable existence for the appellant and her son in whatever new location she or they might be able to find, and that a flight or journey from one disaster area to another potential disaster area did not represent an internal flight solution. In summary, the issue of relocation was not properly addressed.[16]In my judgment, given the history of this particular application for asylum, that issue should have been addressed. I am not suggesting that the issue had to be addressed at great length, but it should have been faced up to and the contentions on behalf of the appellant answered.[17]I base that conclusion on three separate considerations, all of which are linked together. The issue was before the Secretary of State and addressed, to some extent at any rate, in his decision letter of May. It was certainly before the special adjudicator. The issue was directly addressed, and it appeared that the Secretary of State was taking the position before the adjudicator that, even if internal flight was not the only issue, it was certainly an important one.[18]Finally, on appeal from the special adjudicator permission to appeal on the basis that the special adjudicator had not addressed the issue was given. In my judgment, looking at this matter broadly, the issue of internal flight was a critical issue. It needed to be addressed as a specific ground which could not simply be treated as it was here, and wholly ignored. The omission or failure to deal with the issue involves a question of law, and an appeal can therefore come to this court under rule 26 of the Immigration and Asylum Procedure Rules 2000.[19]In my judgment, it is unnecessary to address the second ground because this case should be remitted to the Immigration Appeal Tribunal for a rehearing. I shall mention it briefly. Complaint is made about the way in which the I.A.T. rejected Mr Chenciner's evidence. The criticism is that the I.A.T. did not identify the evidence which led them to the conclusion that he was "over-enthusiastic". There had been no challenge, no evidence to contradict his evidence, and no one suggested that there was any material with which to impugn his integrity. Moreover, the letter from the appellant's solicitors was in effect misunderstood. It is unnecessary to reach any conclusion of my own on this issue. At the rehearing it will no doubt be considered and decided on the basis of the evidence then available. Accordingly, I should allow the appeal on the first ground.

MR JUSTICE HOLMAN: I agree.

LORD JUSTICE THORPE: I also agree.

ORDER

Appeal allowed; public funding certificate.