A v Secretary of State for the Home Department [2003] EWCA Civ 175

Case No C1/2002/1464/A

[2003] EWCA Civ 175

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM AN IMMIGRATION APPEAL TRIBUNAL

Venue Royal Courts of Justice

Date Tuesday, 21st January 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE PETER GIBSON

LORD JUSTICE MAY

LORD JUSTICE KEENE

Between

"A"Appellant

-v-

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR J GILLESPIE (instructed by Bindman & Partners) appeared for Appellant

MR GERARD CLARKE (instructed by Treasury Solicitor) appeared for Respondent

J U D G M E N T

(As Approved by the Court)

Tuesday, 21st January 2002

J U D G M E N T

LORD JUSTICE PETER GIBSON:

[1]I will ask Keene LJ to give the first judgment.

LORD JUSTICE KEENE: This matter comes before the court as a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal ("the IAT") having been refused on the papers but then adjourned to the full court by Rix and Dyson LJJ after an oral hearing.

[3]The case raises issues under the 1951 Refugee Convention and under the European Convention of Human Rights ("ECHR") because of section 65 of the Immigration and Asylum Act 1999 ("the 1999 Act"). The applicant is a citizen of Jamaica and is now aged 44. She arrived in this country by air on 4th November 1998 and was given six months leave to enter as a visitor. Subsequently, after overstaying her leave, she claimed asylum but the claim was refused by the Secretary of State.

[4]She appealed unsuccessfully to an adjudicator both on asylum grounds and under Articles 2 and 3 of the ECHR and then appealed to the IAT. That appeal was dismissed by the IAT by a decision dated 19th March 2002. The Appellant's Notice was only filed with this court on 12th July 2002 and an issue arises as to whether an extension of time is required and, if so, whether it should be granted. I deal with that matter first of all.

[5]Grounds for leave to appeal to the Court of Appeal were submitted on the applicant's behalf to the IAT by the Immigration Advisory Service, who had been acting for her. Those were submitted on or about 28th March 2002 and were received by the IAT on 2nd April. According to the applicant herself, she had before then told the Immigration Advisory Service that she wanted to look for a new solicitor and had seen on 25th March 2002 a solicitor with Bindman & Partners, Ms Cornes. The applicant asked Bindmans to submit grounds of appeal. On 2nd April 2002, the same day as the Immigration Advisory Service grounds were received by the IAT, Bindmans faxed a letter to the IAT telling them that they were now instructed instead. Two days later, on 4th April, Ms Cornes sent an application for leave to appeal to the IAT, again by fax, enclosing the grounds of appeal.

[6]On 26th May 2002 Bindmans received a refusal from the IAT for leave to appeal to the Court of Appeal dated 24th May. Clearly the IAT was aware that the Immigration Advisory Service was no longer acting for the applicant. However, the determination by the IAT related to the grounds of appeal submitted by the Immigration Advisory Service and not to those submitted by Bindmans. On counsel's advice Bindmans wrote to the IAT President, Collins J, on 30th May requesting a review of the Tribunal's decision. The President replied the following day, saying that there was no power to review such a refusal but he would ask Dr Storey, who had chaired the IAT in these proceedings, to consider the grounds and see if he would have granted leave. If so, that, said the President, would perhaps help persuade the Court of Appeal. By letter dated 28th June 2002 Bindmans were sent a further determination in which Dr Storey stated that he would not have granted leave on the grounds submitted by Bindmans.

[7]As I have indicated earlier, an application to the Court of Appeal for permission to appeal was submitted to this court on 12th July. Apparently the view had been taken by those advising the applicant that the 14 days ran from Dr Storey's later decision letter. It is clear that before the IAT refused leave the first time on 24th May grounds of appeal had been lodged by Bindmans and yet were not dealt with by the IAT. Nonetheless, technically, time for applying to this court ran from that first determination. Mr Clarke for the Secretary of State emphasises that it is important that time limits laid down should be observed in asylum and immigration matters. He contends that the applicant's advisers should have been aware that the IAT had no power to review, as Collins J had pointed out in his reply of 31st May. I entirely see the force of that, but the course pursued by Bindmans once they appreciated what had happened was perhaps an understandable one and certainly in a case such as this the applicant ought not to suffer as a result. She, in my view, should not be prejudiced by the confusion which has taken place. I therefore would grant the necessary extension of time. I would also, for reasons which will become clear in due course, grant permission to appeal and I deal therefore with this matter as an appeal.

[8]I turn to the facts of the case. The appellant, Miss A, comes from the Tivoli Gardens area of West Kingston in Jamaica, a poor urban area which according to the evidence is dominated by a gang. It is also regarded as being an area loyal to the Jamaica Labour Party ("the JLP"), which is the main opposition party. The adjudicator seems to have accepted the general credibility of the appellant, certainly insofar as she was dealing with events affecting her and her family.

[9]She testified that on 23rd December 1994, after a quarrel, her 13-year old daughter was shot and killed by a gang member in Tivoli Gardens. The appellant reported this to the police and also gave them the name of the gang member responsible. This has been the source of her troubles. Friends told her that she should not have done that, in particular should not have given the name to the police, but should have said that the killing had been carried out by a member of the rival party, the People's National Party ("the PNP"). Three weeks later on 14th January 1995, her 21-year old son was also shot and killed after he had threatened to see that his sister's killer went to prison.

[10]On 17th January that same year gang members came and told the appellant that she was an informer and they threatened her.

[11]She moved out of West Kingston about one week later, going to stay in a non JLP part of Kingston where she stayed for some six months. She then moved to a number of other places which were not JLP areas, but she found that she was not welcome in such areas because she came from Tivoli Gardens. I shall return to her experiences during this period later in this judgment.

[12]During this period her brother was also shot by the same gang who had killed her daughter and son. This was in 1996. At the end of that same year her eldest daughter's boyfriend, who was a member of the gang, was killed by gunmen and a subsequent boyfriend was shot but survived. The adjudicator did not accept that these 1996 shootings were linked to the appellant but reflected simply the fact that, as he put it:

"This is a very violent area of Jamaica."

The IAT, however, did accept that the 1996 shootings were in some way related to her and her conduct.

[13]The adjudicator accepted that local "dons" and their gangs controlled areas in poor urban communities, but he concluded that no reason for persecution falling within the Refugee Convention had been demonstrated. The threat from the Tivoli Gardens gang to the appellant was because she was seen as an informer. As for the ECHR, the adjudicator found that there was no evidence before him of any attempt to locate her while she was elsewhere in Jamaica over the next four years or so before she left for this country. He concluded that she would not be at significant personal risk in Jamaica outside her own neighbourhood, so that she could settle elsewhere on the island. He was not satisfied that it would be unreasonable to expect her to settle elsewhere in Jamaica and so there would be no breach of her human rights by returning her.

[14]Miss A had not dealt in detail before the adjudicator with the problems which she had suffered in 1997 and 1998 whilst still in Jamaica. But she put in a further statement to the IAT in which she described how she had been vulnerable during that time and sexually abused while she stayed in areas outside her own neighbourhood in 1997 and 1998. She also said that in April 2001 her partner, who was still in West Kingston, had asked a JLP don for her to be forgiven, but he had refused.

[15]Two experts' reports were also put before the IAT. One was from Dr Amanda Sives, a researcher at the Institute of Common Wealth Studies. Her report indicated that Miss A would be vulnerable elsewhere in Jamaica because without employment and outside her own community she would be dependent on the good will of others. The second report was by Sean Roberts of Amnesty International, who confirmed the existence of what are called "garrison communities", like Tivoli Gardens, controlled by a gang loyal to a particular party. He concluded that she would be at risk of violence if she moved elsewhere in Jamaica, but it is fair to say that he gave no detailed basis for that conclusion.

[16]The IAT which regarded the issue in the case as being one of whether there was an internal flight alternative ("IFA") concluded that the evidence did not show that she would be at risk from the Tivoli Gardens gang members if she moved away from her home area. As for the dangers and difficulties from other sources if she moved elsewhere in the island, the Tribunal accepted her account of what had happened to her in the period between 1995 and 1998 and also accepted that if she were to return to those same areas she might again face difficulties. But it concluded that there were other "previously untried areas" where she would not face risks of harm or undue hardship. It stated that there was insufficient evidence to show that she would face similar difficulties if she avoided urban community trouble spots and areas hostile to outsiders, although it accepted that she might find difficulties in obtaining employment or suitable accommodation. It therefore dismissed her appeal.

[17]The grounds of appeal to this court attack the finding that there are areas of Jamaica to which Miss A could safely and reasonably locate. In support of the appellant's case it is sought to rely on further evidence which was not produced below. This comprises three additional experts' reports and a further statement from Miss A herself. In the latter the appellant describes how she was exploited sexually when she moved to and lived in St Thomas', which she emphasises is not a recognised trouble spot. The expert reports consist of a further one from Dr Sives in which she describes how people all over Jamaica would be afraid if they find they have an informer from Tivoli Gardens in their midst, a report from a human rights expert, Dr Yvonne Sobers, who stresses the vulnerability of the appellant to sexual exploitation if she is in an area where she has no community support, and a report by Mr Hilaire Sobers. Mr Sobers is a member of the Jamaica Bar and a former executive director of the Independent Jamaica Council for Human Rights. He is clearly a distinguished and reputable expert on matters concerning human rights in that country. Very fairly, Mr Clarke, on behalf of the Secretary of State, describes his report as a careful and considered one by somebody who knows what he is talking about. Put briefly, Mr Sobers' evidence is that the power and influence of the dons who head the gangs extend over the whole island and that the appellant would therefore be at substantial risk of harm if she is returned to any part of Jamaica. He emphasises that the island is not large, so that it is relatively easy to ascertain the whereabouts of a target. Indeed, he says hitmen can be hired for as little as £100 Sterling and it would be difficult for the appellant to conceal her Tivoli Gardens origins. Nor is the passage of time any protection. Finally Mr Sobers makes the same point as Dr Yvonne Sobers, namely that in any area where the appellant was deprived of the support of her local community, she would be at serious risk of abuse.

[18]Should this court admit and take account of this fresh evidence? It is argued on behalf of the Secretary of State that we should not, since the matters with which the further experts' reports deal have been in issue since before the IAT hearing. Mr Clarke accepts that the principles in Ladd v Marshall do not strictly apply in cases such as this, but he contends that the reports before the IAT did deal with the issues that these latest reports are concerned with, although did not deal with them in as much detail. However, he does accept that those earlier reports did not deal with the extent of the power of the Tivoli Gardens gang over the whole of the island, and he also accepts that the evidence that the IAT had before it was significantly thinner than is now available to this court.

[19]On behalf of the appellant Mr Gillespie submits that his client has already been found to be at risk in certain areas of Jamaica. Therefore this is a case which requires very close scrutiny and the evidence should be admitted in the interests of justice. He argues that this further evidence is highly probative and undermines the findings of the IAT. It shows, he says, that there would be a continuing risk of harm to the appellant elsewhere in Jamaica.

[20]On this issue, I would emphasise that it has been held a number of times that the principles enunciated in Ladd v Marshall

[1954] 1 WLR 1489

, including that which requires the fresh evidence to be evidence which could not have been obtained with reasonable diligence for use at trial, do not apply with the same strictness in public law cases. In Turgut v Secretary of State for the Home Department [2000] Imm.AR 306, an Article 3 case, it was emphasised by Schiemann LJ that this court will not shut out relevant evidence in such cases. The matter was dealt with fully in the unanimous decision of this court in Haile v Immigration Appeal Tribunal [2002] Imm.AR 170, where it was held that the proper approach was to consider the wider interests of justice. That must be right both in asylum cases and in those where Articles 2 or 3 of the ECHR are invoked. After all, one has to consider the context in which these cases are brought. As Lord Bridge of Harwich said in the oft-cited case of Bugdaycay v Secretary of State for the Home Department

[1987] 1 AC 514

at 531 E:

"The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."

As a matter of principle it would be difficult to achieve such scrutiny whilst closing one's eyes to relevant evidence.

[21]In the present case this further evidence is credible and it is potentially significant, going much further than the material which the IAT had. I for my part am quite satisfied that the wider interests of justice do require the fresh evidence to be considered by this court. I would admit it and I proceed on that basis.

[22]It is submitted by Mr Gillespie that Miss A should be seen as falling within the Refugee Convention. He argues that the IAT stressed the political context in which the Jamaican gangs worked. The evidence shows, he says, that the appellant could not go to areas on the island where she would be seen as a "labourite", that is to say, someone who came from a JLP area. With that in mind he has taken us to a number of authorities on the internal flight option, beginning with the R v Secretary of State for the Home Department, ex parte Robinson

[1998] QB 929

[23]The IAT in its determination was not clear, in my judgment, as to whether it accepted the adjudicator's finding that the risk of persecution faced by the appellant in her home area of Tivoli Gardens was not for a Refugee Convention reason. Article 1A(2) of that Convention refers to persecution for reasons of. "race, religion, nationality, membership of a particular social group or political opinion". It is true that the IAT at paragraph 10 of its determination does refer to the fact that the Tivoli Gardens gang was linked to the JLP and that there was a political struggle between the JLP and the PNP in areas such as West Kingston. Yet the appellant's own evidence makes it clear that the risk to her safety in West Kingston, and on her case elsewhere on the island, derives from the fact that she was regarded as an informer. That was the reason for the threats to her from the gang and it remains the reason why she would be at risk from them, at least in West Kingston. It is difficult to regard that as being persecution for the reason of her political opinion. In saying that, I bear fully in mind those cases which have considered the possibility of an imputed political opinion where an individual is perceived to be on the side of law and order in a country where that has broken down: cases such as Arcero Garces [1999] INLR 460; Gomez [2000] INLR 549; Storozhenko [2000] 2 Imm.AR 329; and Suarez

[2002] EWCA Civ 722

. But in the present case there is simply no evidence that the appellant would have been perceived by the gang as adopting any political stance when she informed the police. The natural interpretation of these events is that she was seen as having betrayed a gang member to the police and the risk to her arose from a desire for revenge.

[24]I therefore, for my part, cannot accept that any well-founded fear of persecution from the Tivoli Gardens gang arises by reason of political opinion. No other source of persecution under the Refugee Convention was contended for by the appellant.

[25]The real issue seems to me to arise under Articles 2 and 3 of the ECHR. Under section 65 of the 1999 Act an appeal may be allowed if it is determined that the decision under challenge was taken in breach of the appellant's human rights. Articles 2 and 3 of the European Convention are absolute rights and no question of proportionality arises. Article 2, of course, protects the right to life. Article 3 provides that:

"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."

It is clear from the Strasbourg jurisprudence that the threat to life or the risk of treatment falling within Article 3 may come from non-state agents in the receiving state: see Ahmed v Austria

[1997] 24 EHRR 278

and HLR v France

[1998] 26 EHRR 29

. A contracting state, such as the United Kingdom, will therefore be in breach of the European Convention if it expels or removes a person to a state where there is a real risk to that person from people who are not public officials. In the HLR v France case that risk emanated from the Colombian drug Mafia. In principle therefore the removal of the appellant would be in breach of her human rights if there is a real risk to her life or of Article 3 treatment from either the Tivoli Gardens gang or from others within Jamaica.

[26]I have already summarised the gist of the evidence in the further reports now before this court. It is perhaps worth adding that Mr Hilaire Sobers states in terms that these criminal gangs and their operations are not confined to the so-called garrison communities, and he instances cases where gunmen have been exported, as he puts it, to other areas to terrorise various groups of people, including suspected informers. He emphasises that the dons have developed networks throughout the island of Jamaica.

[27]Ms Yvonne Sobers describes how trying to relocate in a rural area would attract suspicion as a stranger and says that being an informer, or even being suspected of being an informer, is a prescription for death anywhere in Jamaica.

[28]Dr Sives describes the reach of a gang such as the Tivoli Gardens gang as being islandwide.

[29]All these reports, therefore, are consistent with one another. These opinions are, at least in the case of Mr Sobers' and Ms Sobers' reports, supported by examples and illustrations. There is no expert evidence to the contrary.

[30]Of course, I bear in mind the fact stressed by Mr Clarke that the appellant did survive in Jamaica for nearly four years after informing on the gang member to the police and that it is now some eight years since she gave that information to the police. Nonetheless, the fresh evidence is compelling and, in my judgment, sufficiently establishes a real risk that sooner or later, wherever the appellant located herself in Jamaica, the Tivoli Gardens gang would be likely to find her and seek revenge. The evidence that as recently as April 2001 the don of that gang refused to forgive her and to allow her to return to that community is consistent with the expert evidence and is credible. Of course, she might survive somewhere on the island. It is by no means certain that she would be killed. But it does not have to be for these purposes. It is enough that there is a real risk to her life if she were to be sent back.

[31]Moreover, even if the appellant did manage to find a locality where for a time she could survive, the evidence also demonstrates that she would be very vulnerable there without friends or relatives and, given the high levels of unemployment in Jamaica, probably without a job. Ms Sobers in her report points out that there is no social welfare safety net in Jamaica and that the family and local community normally provides a measure of security for such women. Separated from such family and local support, the appellant would be extremely vulnerable.

[32]Having read these reports it seems to me that they show that there would be a considerable risk of a repetition of the experiences which the appellant went through in 1997 and 1998 according to her further evidence, the veracity of which was accepted by the IAT. That involved her being forced to submit to unwanted sexual intercourse by men in the localities where she lived and to other sexual abuse under threat of having her identity, as someone from Tivoli Gardens and indeed as an informer, revealed. In effect, that was the price she had to pay for finding a measure of safety, albeit a temporary one. The sexual abuse of her occurred at a number of places where she stayed and seems to have been a somewhat persistent feature of her existence during that time. The definition of what amounts to degrading treatment provided by the Strasbourg Court in Ireland v United Kingdom [1979-80] 2 EHRR 25 was treatment arousing in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking their physical or moral resistance. In my judgment the evidence now available, which I emphasise was not before the IAT, does establish that returning her to Jamaica would run a real risk of subjecting her to degrading treatment within the meaning of Article 3, quite apart from the risk to her physical safety. For that reason it is unnecessary to deal with the authorities cited to us on the internal flight alternative.

[33]We were asked by Mr Clarke, if we found the fresh evidence persuasive, to remit this case to the IAT as being the body with the experience to consider and assess such evidence. I for my part would not do so. It seems to me that the evidence now before us admits of only one sensible interpretation and this court is fully able to arrive at a substantive conclusion on it.

[34]I am persuaded that the removal directions given by the Secretary of State would involve a breach of the appellant's human rights. For that reason and on that specific basis, I would allow this appeal.

LORD JUSTICE MAY: I agree that this appeal should be allowed for the reasons given by my Lord.

LORD JUSTICE PETER GIBSON: I also agree.

Order

Appeal allowed. The removal directions will be quashed. We award to the successful appellant the costs of the hearing before this court (Rix LJ and Dyson LJ) and thereafter, but we make no order as to costs for the period before that day. We are thereby excluding the costs of the preparation of the new evidence on the footing that that needed the permission of the court and should have been produced for the earlier hearing. (Order does not form part of approved judgment)