Mishto v Secretary of State For Home Department [2003] EWCA Civ 1978

Case No C1/2003/1353[2003] EWCA Civ 1978
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE HARRISON)
Venue Royal Courts of JusticeDate Friday, 12 December 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE LAWS
Between
ELENICA MISHTOAppellant-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 8838(Official Shorthand Writers to the Court)
MR R SCANNELL (instructed by Lugmani Thompson and Partners, 77/79 High Road, Wood Green, London N22 6BB) appeared for AppellantMISS J ANDERSON (instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) Appeared for Defendant
J U D G M E N T
[1]This is an appeal, with permission granted by Buxton LJ on 16th July 2003, against the decision of Harrison J made in the Administrative Court on 19th May 2003 when he dismissed the appellant's claim for judicial review of the refusal of the Immigration Appeal Tribunal on 9th October 2002 to grant leave to appeal against the determination of the Adjudicator promulgated on 2nd November 2001. The Adjudicator had dismissed the appellant's asylum and human rights appeals against removal directions issued by the Secretary of State.[2]The appellant is an Albanian national, having been born in Tirana in 1966. The IAT described her immigration history as unusual, and so in some respects it was. She entered the United Kingdom with a man who was then her partner, Mr Koleci, on 11th December 1997. He made an asylum claim on arrival and she sought leave to enter as his dependant. However, their relationship deteriorated badly. The appellant was to claim that she was the victim of sustained physical and mental abuse at Mr Koleci's hands here in the United Kingdom. The police became involved in 2000. On 26th May 2000 the appellant made a claim for asylum in her own right. In June of the same year, Mr Koleci was charged with an offence of assault occasioning actual bodily harm. Thereafter the appellant was rehoused by the London Borough of Brent because of the violence she had suffered at Mr Koleci's hands. She obtained an injunction or a non-molestation order in the County Court with a power of arrest attached. It is also said in her statement that there were threats made by telephone by members of Mr Koleci's family in Albania to the appellant's mother and sister in relation to which the police took no action.[3]The appellant was interviewed in connection with her asylum claim, but a refusal letter was issued on 29th March 2001. As I have foreshadowed, she appealed to the Adjudicator, who succinctly described the nature of her claim as follows:
"The appellant's claim to asylum is that she is a victim of domestic violence. The basis of the claim to asylum is based upon her relationship with her ex partner who had threatened to kill her through his agents in Albania whenever he returns there. In the United Kingdom the appellant has protection from his threats in that she has obtained an injunction from the Brent County Court and the police in Brent have issued her with a personal distress alarm to enable her to seek help should she fall into danger from her ex partner. She claims that her ex partner's wife and children would harass her if she returned to Albania. Also her ex partner has two sons in Albania who are eighteen and twenty years old."
[4]The case was put on the appellant's behalf on the footing that she feared persecution as a member of a particular social group, in line with the decision of their Lordships in Islam v Shah [1999] INLR 144. She also put forward a case based on Articles 2 and 3 of the European Convention on Human Rights. I should note, though it is now only of historical interest in the case, that the Secretary of State in refusing the appellant's claim also issued a certificate that the claim was one to which paragraph 94A of Schedule 4 to the Immigration and Asylum Act 1999 applied. The effect of that was that the appellant was barred from any further right of appeal to the IAT in the event that the Adjudicator dismissed her appeal to him. The Adjudicator upheld the Secretary of State's certificate, stating that he agreed with the decision letter of 29th March 2001. However, the certificate was quashed by consent in earlier judicial review proceedings. The Adjudicator's determination was repromulgated as an uncertified case, thus providing the appellant with the opportunity to seek leave to appeal to the IAT. As I have said, it is the IAT's refusal of leave that has generated these judicial review proceedings.[5]The Adjudicator took an unusual procedural course in hearing the appeal. He decided to hear submissions based on the objective written material before him upon the question, whether there was a sufficiency of State protection in Albania for battered women. And to do so before he heard any evidence going to the appellant's credibility and thus, of course, the evidence of the appellant herself. He did this for the best of motives. He said in paragraph 10:
"I indicated that it was my view that if there was a sufficiency of protection in Albania for those in the appellant's category it would be otiose to hear evidence as to the credibility of her claim which would no doubt cause her distress when she is cross-examined about it. Both parties agreed that this was a sensible way to proceed."
I should indicate that the appellant was represented before the Adjudicator by a lady from an organisation called "Asylum Aid". She was not a lawyer.[6]The question of sufficiency of protection, irrespective of the stage in the proceedings in which it fell to be assessed, had to be considered in the light of the decision of their Lordships' House in the well-known case of Horvath [2000] INLR 2039. It is, with respect, enough to set out a passage from the speech of Lord Clyde, which is cited in the skeleton argument prepared by Miss Stephanie Harrison of counsel on the appellant's behalf:
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case. It seems to me that the formulation presented by Stuart-Smith LJ in the Court of Appeal may well severe as a useful description of what is intended, where he said at [2000] INLR 15, 26, paragraph 22: 'In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders.' And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the State is unwilling to afford protection. 'It will require cogent evidence that the State which is able to afford protection is unwilling to do so, especially in the case of a democracy.' The formulation does not claim to be exhaustive or comprehensive but it seems to me to give helpful guidance."
[7]The Adjudicator summarised the material on State protection in three paragraphs of his determination, which in light of the grounds of appeal put forward it is necessary to set out:
"14. It is plain to me from the material in the appellant's bundle at pages 42 and 43 that there are women's organisations in Albania. Para 2-1 at page 43 of the appellant's bundle it is stated that women have equal access to opportunities in Albania. At page 50 of the appellant's bundle under the heading violence against women there is much objective material to support the respondent's claim that there is a sufficiency of state protection in Albania for women who may be the victims of violence. This states that domestic violence has become a serious problem in Albania. During the communist regime it was never considered a public problem today the mentality that justifies domestic violence in Albanian families is still alive and influential. Women are considered inferior in their families. Women remain the targets of domestic violence. Against this there is in place a legal framework which is addressing the issue of domestic violence. This activity is prosecuted under the general crime of assault. Under the Code of Criminal Procedure, domestic violence is prosecuted upon the complaint of the victim and the case is only closed when there is a withdrawal of the complaint. However the victim must also prepare the case herself, gathering evidence and witnesses and presenting her case in Court. 15. The police response to this offence is that their view is that a crime is committed from the moment of the assault. If the perpetrator is not immediately arrested the victim should go to the police at which point the prosecutor, the attorney and the Court become involved. There is a complaint by women victims in surveys on domestic violence in Albania that records that the police treat the offence as a private matter and do not always intervene. At page 30 of the report in the appellant's bundle: Human Rights Watch World Report 2001 Albania Human Rights Development, it states: 'However a number of changes have emerged and, recently, some training programs have been organised to teach social workers, judicial police, police, prosecutors, etc how to deal with cases of domestic violence. The Albanian centre for Human Rights has recently organised training on 'Police and the defence of women.' 16. The report goes on to say that in Albania there is a counselling centre for women and girls. There is a service centre to help female victims of various types of abuse. The centre offers direct or telephone counselling. Since this centre was set up about four years ago there have been four thousand three hundred phone calls demonstrating the high level of domestic violence but also the increase in public interest in this issue."
The Adjudicator concluded in paragraph 17 that there was a sufficiency of State protection available to this appellant should she be returned to Albania. I will return to paragraph 17 in due course.[8]Before us the appellant has been represented by Mr Scannell, but the arguments marshalled on her behalf for the purposes of this appeal were fully and carefully set out in a skeleton argument prepared, as I have said, by Miss Stephanie Harrison. I find it convenient to deal with the submissions in the order in which they are canvassed in that document, although Mr Scannell has indicated before us this afternoon that he places primary reliance on the last argument which goes to the Adjudicator's findings as to the sufficiency of State protection.[9]The first submission with which I shall deal is articulated at paragraphs 4 and 5 of the grounds of appeal. It is to the effect that the Adjudicator should not have taken the procedural course which he did. The submission depends, partly at least, on a particular characterisation of the Adjudicator's approach as to which the parties are not in agreement. The difference between them was described by

the judge very shortly as follows:

"There was a basic disagreement between Miss Harrison for the claimant and Miss Anderson for the Secretary of State as to the way in which the Adjudicator's determination should be viewed. Miss Harrison submitted that the Adjudicator's determination was a broad one relating to domestic violence as a whole in Albania, whilst Miss Anderson submitted that the determination took account of the accepted parameters of the claimant's own case."

The judge proceeded to make this observation with which, for my part, I would agree:

"In my view, the difference of opinion as to the way in which the Adjudicator's determination should be viewed arises out of the procedure that he adopted by deciding the issue of sufficiency of State protection as a preliminary issue. Whilst I do not doubt that he did so with the best of intention, in order that the claimant should be saved the distress of cross-examination if he were to decide that there was sufficient State protection, it is unfortunate that both parties agreed to that procedure because the issue of sufficiency of State protection cannot be considered in isolation without regard to the circumstances of the individual case."
[10]As appears from paragraph 14 of Miss Harrison's skeleton argument, there are two linked submissions on this part of the Case. It is said first that the Adjudicator's approach was wrong in any event, whether Miss Harrison or Miss Anderson for Secretary of State, was right as to its precise categorisation. But, secondly, it is said that despite the course the Adjudicator adopted, which entailed his not hearing evidence from the appellant, the Adjudicator actually proceeded to make adverse findings on the appellant's particular case and, so it is submitted, that was unfair. Now this is a reference to paragraph 18 of the Adjudicator's determination:
"This appellant claimed asylum on this basis after she broke up with her partner, who claimed asylum in this country. She is probably at greater risk in the United Kingdom than she would be if she returned to Albania. The man she is in fear of is currently in the United Kingdom. There is no merit in this appeal. I find that this appellant does not have a well founded fear of persecution for any Convention reason and I dismiss this appeal."
[11]If the Adjudicator had determined this case purely by reference to the material concerning State protection in Albania generally, without tying his approach into the particular circumstances of the appellant's case, that would in my judgment amount to a legal error which justified or required the IAT to give leave to appeal to it. Lord Clyde in Horvath, in the passage I have cited, indicated that the point "where the line is drawn", as regards sufficiency of protection, "is necessarily a matter of the circumstances of each particular case." There is a reminder in Miss Harrison's skeleton argument of the well-known ammunition of Simon Brown LJ in Ravichandran (1996) Imm AR 97 to the effect that the Adjudicator must ask himself a single composite question: whether the appellant has a well-founded fear of persecution for a Convention reason? However, I do not think that the Adjudicator fell into this error.[12]Miss Anderson's submission is set out in her skeleton argument for the Secretary of State. Paragraph 5 states:
"... the Adjudicator had simply taken the approach that is often adopted by judicial decision-makers (including the Administrative Court and the Court of Appeal) being: - if I take the evidence in this case at face value without considering the credibility of the account - could it make out a successful appeal?"
Miss Anderson says that is effectively what the Adjudicator did, and she so submitted before the learned judge at first instance.[13]Now it is true that at paragraph 10 the Adjudicator has the phrase "battered women", and then also there is the phrase "those in the appellant's category", and those references may perhaps be distinguished from a form of words that would be apt to refer only to the appellant's particular singular case. In paragraph 13 he referred to "women in this appellant's position", but it seems to me, despite Mr Scannell's submissions this afternoon to the contrary, that the way in which the matter is put in paragraph 17 of the determination is most telling. I quote:
"It is plain to me that there is a sufficiency of state protection available to this appellant should she be returned to Albania. This system of protection meets Horvath protection criteria as set out above. As I have stated above there does not need to be an absolute guarantee of protection to meet this criteria. There has to be a system of protection available to the appellant and a willingness to apply that on her behalf. I therefore find that the appellant's claim as stated in her asylum interview and in her statement does not disclose a well founded fear of persecution should she be returned to the Albania because there is a sufficiency of state protection in her own country that she could avail herself of should she be returned."
[14]I agree with the conclusion arrived at by the learned

judge at paragraph 46 of his judgment:

"What the Inspector did was to consider the issue of sufficiency of State protection, taking the claimant's interview and her written statement at face value. That was why he did not hear any evidence as to credibility."
That being so, I see no unfairness in the Adjudicator's having proceeded to make certain observations (paragraph 18, which I have read) about Mr Koleci being currently in the United Kingdom and so forth. Those observations are entirely consistent with the terms of the appellant's statement. That statement, together it may be with the asylum interview, must be taken as having put forward her case. In any event, as I read the Adjudicator's determination paragraph 18 is really the fifth wheel of the coach: the Adjudicator has concluded the appeal against the appellant by his reasoning in paragraph 17, which I have also read, in the light of course of all the materials earlier set out.[15]For all these reasons, I conclude that there is nothing in this first argument as to the Adjudicator's approach.[16]The second argument is set out at paragraph 6 of the grounds of appeal. It is to this effect, and I can take it from the grounds themselves. It is said that Harrison J:
"... compounded this unfairness [I interpolate that is a reference to the first ground] by accepting the submission of the Secretary of State in considering that the risk posed on return was not of domestic violence but revenge and that therefore the Adjudicator did not need to consider sufficiency of protection specifically with regard to domestic violence. This entirely went behind the agreed approach between the parties and the Adjudicator's determination to proceed to determine the case upon the basis that the fear was of domestic violence."
In fact the Secretary of State did not submit by Miss Anderson that the risk postulated if the appellant were returned was not of domestic violence but of revenge. The Secretary of State's submission is recorded by

the judge at paragraph 40, thus:

"She [Miss Anderson] contended that the claimant's case was at the far edges, or within the outer limits, of domestic violence... "
In any event, I detect no trace of an agreement so-called between the parties of the kind suggested in the grounds. The Adjudicator simply had to deal with the claim as it was advanced, namely that the appellant feared violence from Mr Koleci and/or his family. Moreover, the points made by the judge are again, as it seems to me, perfectly consistent with the contents of the appellant's statement. But there is a further point. I cannot see that this argument, by which the reasoning of the learned judge is attacked, could properly take the appellant home even if the criticisms of the judge were well-founded. The question surely is: was there an arguable flaw in the Adjudicator's determination such as might require the IAT to give leave to appeal to it? This further reasoning of the judge does not really touch that question. Finally, it is to be noted that the context of the judge's remarks, as is demonstrated by paragraph 49 of the judgment, which I need not read, is his concern, which was plainly correct, to show that it would have been wrong for the Adjudicator to have considered the issue of State protection against a generalised background of domestic violence rather than by taking into account the circumstances of the appellant's particular case. The judge had of course already concluded that the Adjudicator had not fallen into that error and I have agreed with his conclusion.[17]In all the circumstances there is, in my judgment, nothing in this argument relating to the judge's reasoning.[18]The third and penultimate submission, paragraph 7 of the grounds, also assaults the reasoning of the judge. It is to the effect that the judge was wrong to proceed on the basis that the appellant's fear was of violence from Mr Koleci's family in the absence of evidence concerning the likelihood of Mr Koleci's own return to Albania, and this portrayed an assumption that State protection against domestic violence was irrelevant to the case (the reference is again to paragraphs 47 and 48 of the judgment).[19]The submission misrepresents the judgment. Harrison J did not state or imply that State protection against domestic violence was irrelevant. He was merely taking into account factual elements in the case as he saw them which were consistent with the appellant's own written evidence. Again, the judge's view here cannot, as I see it, affect the integrity or otherwise of the Adjudicator's determination. This ground also, as it seems to me, has no force.[20]The fourth and last argument is the one upon which Mr Scannell has laid particularly emphasis. It is set out in paragraphs 8 to 12 of the grounds and is to the effect that the Adjudicator's finding that the appellant had not shown that there was no sufficiency of State protection available to her in Albania is legally unsustainable and the judge should have so held. Mr Scannell, in common with his predecessor in the case, Miss Harrison, would prefer to characterise this part of the appeal as an accusation that the Adjudicator failed properly to apply the test set out in Horvath, and encapsulated in Lord Clyde's speech, for the determination of sufficiency of State protection rather than as a straightforward assault on the Adjudicator's conclusions based on the Wednesbury principle. It is not in my judgment arguable that the Adjudicator misunderstood the reasoning in Horvath. He summarises the approach perfectly properly in paragraph 3 of his determination. This part of the case is a Wednesbury challenge or it is nothing. It must be said that the conclusion arrived at by the Adjudicator was perverse. Mr Scannell will not have that phrase; he prefers a formulation to the effect that the Adjudicator failed to take account of relevant considerations. But where the claim is based purely on a factual appreciation of the conclusion reached by the decision-maker below, this is really a distinction without a difference. The learned judge said at paragraph 53:
"In my view, the challenge in this case is basically a Wednesbury challenge. That is a high test to meet, although it must be remembered that the matter has to be considered with anxious scrutiny."
I have already set out paragraphs 14, 15 and 16 of the Adjudicator's determination and his conclusion in paragraph 17 that there was here a sufficiency of State protection. Mr Scannell and, indeed, Miss Harrison in her skeleton argument rely in particular on the evidence that a female victim of domestic violence had to prepare, assemble and present her own case. That is a matter referred to by the Adjudicator at paragraph 14. The judge noted that this was just one sentence in a report arising from an interview in 1995. Mr Scannell has referred us to the particular source for that assertion, there seem to have been two interviews in June 1995. This aspect was at the forefront of Mr Scannell's submissions. Miss Harrison in her skeleton argument relies generally on three pieces of material as showing that there was an insufficiency of State protection in Albania for the victims of domestic violence, or indeed other violence. Mr Scannell cited somewhat longer passages from those same materials. They are citations from the United States State Department Report 2001, Human Rights Watch 2001 and the International Helsinki Committee Women Report 2000.[21]I have read and reread these materials. They are highly critical of the situation in Albania and not least in the United State Department Report of the police in particular. They are, however, couched in extremely general terms, as such reports often of necessity are. Mr Scannell also drew our attention to extensive passages from a document emanating from the Minnesota Advocates for Human Rights entitled "Domestic Violence in Albania, April 1996." That document too is severely critical, but its date is important:
"April 1996", that is so not least by virtue of what is said in the document itself. I take this passage, which is set out under a heading titled "historical background": "
The political and social changes in Albania over the past five years have been among the most dramatic in Eastern Europe. The communist party in Albania, the Albanian Party of Labour, held exclusive control in the country for over forty years. It created one of the most isolated and repressive governments in the world. In 1992, the party surrendered power to a democratically elected party. Now Albania, once virtually cut off from the outside word, is actively seeking foreign investment, assistance and expertise. Albania has begun the process of reconstructing and recreating its legal, political and economic structures. The current government has repeatedly expressed a desire to incorporate modern democratic principles and international human rights standards into Albanian law. Violence against women must be analysed in the context of this transition and the strong social, cultural and political traditions that influence life in Albania." There follow descriptions of the severe disadvantages said to be suffered by women in Albania. The impression one has is that many of these troubles are a leftover from a much older culture prevailing in that country.[22]In my judgment the fact is that there was evidence about sufficiency of protection pointing in different directions. It cannot be argued that the Adjudicator failed to have regard to the material put before him. He described the material to which he expressly referred, which I should add was not selectively loaded by any means against the appellant, as a sample of the objective material. It is clear from what he said, not least in paragraph 15 of the determination, that there were factors relating to the prosecution of defendants for violence, which heavily qualified the criticisms apparent elsewhere, including the criticism that a women victim was required, effectively from first to last, to present her own case. There were, as I have said, materials here pointing in different directions. The Adjudicator was required to make a judgment bearing in mind that the appellant carried the burden of showing that on her return she would be insufficiently protected by the State. The Adjudicator was in my judgment entitled to conclude that she did not discharge that burden.[23]I have to say I regard this argument as coming close to usurpation of the court's function. For it is, in truth, an attempt to run a purely factual case dressed in the guise of an appeal on a matter of law only. For all those reasons, there is no more in this last argument in my judgment than in those that forwent it, and I would dismiss the appeal.[24]Before leaving the case I just notice that Buxton LJ granting permission was concerned that, because of the course taken by the Adjudicator, the nature and extent of the appellant's fears may not have been properly examined, and it was in the learned Lord Justice's view arguably unclear what finding was made as to the position of women outside the particular case of domestic violence. Given the procedural course taken by the Adjudicator, I can with great respect understand how those concerns arose. In the end, upon full and careful consideration of the whole case they do not, as I see it, provide the appellant with a successful outcome to this appeal; that is so for all the reasons I have given. I would just wish to say that in my judgment adjudicators should be wary about taking the course taken here. Every practitioner in this field who brings an objective judgment to his task knows that general in-country conditions may sometime be malleable when it comes to a particular set of facts.[25]For the reasons I have given, I would dismiss this appeal.

LORD JUSTICE WARD: So would I, agreeing with my Lord as I do. (ORDER: Appeal dismissed. Detailed Assessment of the appellant's costs. Costs to be adjourned to the Taxing Master under Section 11 for his determination.)