SK & Ors v Secretary of State for the Home Department [2003] EWCA Civ 841

Case No C1/2003/0501Case No C1/2003/0499Case No C1/2003/0500Case No C1/2003/0502Case No C1/2003/0481[2003] EWCA Civ 841
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 Tuesday, 20th May 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE LAWS
Between
SK, NK, ZM, MM, NTClaimant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(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 M MULLINS (instructed by Sutovic & Hartigan, London, W3 9BT) appeared for NK, ZM, SK and MMMR J LIVINGSTON (instructed by J Andrews, West Harrow, Middlesex, HA1 4EF) appeared for NTMR S WILKEN (instructed by the Treasury Solicitor) appeared for defendant

J U D G M E N

LORD JUSTICE LAWS :

These

[1]applications all arise out of a hearing before the Immigration Appeal Tribunal on 16th and 17th October 2002. The purpose of the hearing, as it plainly seems to me, was to form a definitive view on the safety of Serbs returning to Croatia following a previous test case which came to this court, S and Others [2002] Immigration and Nationality Law Reports 416. This court remitted the appeals in S and Others to the IAT on 24th April 2002. These present five cases were substituted for S and Others in the context of reconsideration of the tribunal's definitive view about Croatia because, as I understand it, the appeals against the Secretary of State's refusal of asylum in these five cases postdated 2nd October 2002. The significance of that was, of course, that it meant that points under the European Convention on Human Rights as well as under the Refugee Convention would be open to be taken.[2]The case of SK was taken by the IAT as the lead case and argument before me this morning has concentrated on what the tribunal said in their determination in SK. Permission is sought to appeal the IAT's decision in four areas:(1) its approach to what is called in the grounds "the precedent facts" relating to the situation in Croatia;(2) its approach to the use of expert evidence;(3) its approach to Article 14 read with Article 3 of the European Convention on Human Rights; and finally, its approach to Article 8 of the Human Rights Convention. Counsel have only developed grounds 1 and 2 in their oral submissions, being content to leave the others as they have been argued in the grounds and skeleton. They have by no means abandoned them.[3]I just want to say a word in advance about the fourth ground relating to Article 8. The applicants recognise that the decision of this court in Ullah [2002] EWCA Civ 1856 precludes any argument upon the issue here raised, short of their Lordships' House. The question, in a sentence, in Ullah was whether Article 8 rights are, so to speak, exportable; that is to say, whether a complaint might be made against the authorities of the United Kingdom to the effect that Article 8 would be violated in another country to which those authorities propose to send an applicant. This court, presided over by the Master of the Rolls, held that in this sense Article 8 rights are not exportable. However, the appellant there was granted leave to appeal to their Lordships' House and, as I understand it, that appeal is pending. I will return shortly to this last point at the end.[4]The applicants' complaint on the first ground relating to the precedent facts is succinctly articulated at paragraphs 7(i) and (ii) of the consolidated grounds of appeal as follows:
"i. The general finding, that no Croatian Serb is a refugee and no one's human rights are breached in the current situation in Croatia, is nothing more and nothing less than the determination of a hypothetical question the IAT failed to judge the individual circumstances of each appeal against the circumstances of the background situation but instead turned everything on its head and made findings applicable to hypothetical Serbs travelling on a hypothetical Croatian omnibus. "ii. The Tribunal erred in asking whether this appellant is an exception to the general finding that the hypothetical Serb on the Croatian omnibus is not persecuted and instead should have asked whether the applicant has a well-founded fear of persecution/breach of the European Convention on Human Rights."
That subparagraph refers to a singular applicant or appellant, but the point being made is said to apply, of course, to all five applicants.[5]Later in the skeleton argument at paragraph 10 there are set out a series of detailed matters which, it is said, the tribunal should have, but failed to, address. I will not read them out. They are individual allegations relating to individual applicants. They deal with a disparate series of matters: broadly, the specific conditions which each of these applicants would be likely to face were he returned to Croatia. Various aspects of the privations which were feared are described.[6]In the case of S and Others in this court, I said this at paragraph 28 of the judgment:
"While in our general law this notion of a factual precedent is exotic, in the context of the IAT's responsibilities it seems to us in principle to be benign and practical. Refugee claims vis-à-vis a particular State are inevitably made against a political backdrop, which over a period of time, however long or short, is, if not constant, at any rate identifiable. Of course the impact of the prevailing political reality may vary as between one claimant and another, and it is always the appellate authorities' duty to examine the facts of individual cases. But there is no public interest, nor any legitimate individual interest, in multiple examinations of the state of the backdrop at any particular time. Such revisits give rise to the risk, perhaps the likelihood, of inconsistent results; and the likelihood, perhaps the certainty, of repeated and therefore wasted expenditure of judicial and financial resources upon the same issue and the same evidence."
[7]The IAT's general conclusion in these appeals is set out at paragraph 40 of the determination in SK as follows:
"As will no doubt be apparent, we are satisfied that there has been no worsening of the situation since we decided S and in any event the material before us does not persuade us on the low standard required that there is a real risk that in general Serbs if returned to Croatia will suffer persecution or a breach of any Article of the European Convention on Human Rights. We recognise that the situation is far from pleasant and the deprivation and misery that will be faced. That stems from the war and the destruction caused about it. But that by itself cannot mean that surrogate protection is needed or that there will be a breach of human rights. We regard the steps taken by the Croatian government, despite the difficulties at local level and the obstacles that still undoubtedly exist, as sufficient to provide the necessary protection. It follows that we accept the submissions made by Mr Wilken, set out in detail in his skeleton argument and more particularly in Annex 2 to it. Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has, we are satisfied that removal is justified by a proper control of immigration."
[8]Mr Wilken, who has appeared for the Secretary of State this morning, took me to Annex 2 of his skeleton argument. It is enough to say that that sets out in very great detail a whole series of matters relating to the conditions in Croatia which might be faced by returning ethnic Serbs and the evidence that addressed those matters.[9]In paragraph 41 of the determination in SK the tribunal turned to the circumstances of SK himself, and there are like paragraphs in their determinations in the other cases. The tribunal conclude at paragraph 45 as follows:
"Despite the hardship that the claimant will undoubtedly suffer resulting from the fighting in his country, he does not show any special circumstances which mean that he can establish that he should be given the benefit of either Convention. For the reasons which we have given, therefore, we take the view that the adjudicator's conclusion was wrong and this appeal must be allowed."
As is evident from that passage, that was an appeal by the Secretary of State.[10]In summary, then, the tribunal dealt with each of the individual cases by considering whether any applicant could demonstrate a special position or exceptional circumstances, and they held that none could. It is useful at this stage just to note a passage in paragraph 24 of the IAT's determination in SK, which reads as follows:
"The parties were aware that these cases were intended by the tribunal to establish the general position as of the date of hearing and so to enable (subject to any special factors in individual cases or to a deterioration or improvement of the situation in Croatia depending on the tribunal's conclusion) Adjudicators and subsequent tribunals to reach consistent decisions. Thus they have between them endeavoured to and, so far as we are aware, succeeded in putting before us all relevant material."
There then follows a summary of the wealth of material contained, I am told, in five lever arch files, that was put before the tribunal.[11]Mr Mullins, for all the applicants save NT, submits that the vice of this decision is that the tribunal have failed to consider in its proper fullness the question as regards each applicant, whether in truth he is to be treated as a refugee or whether in truth he is to be treated as a potential victim of ill-treatment contrary to his rights under the European Convention. It was, he submits, not legitimate for the tribunal to arrive at the general conclusion at which they did arrive in paragraph 40, and then to go on and treat each individual case as if the issue were no more nor less than whether some special position existed such that the applicant under consideration would suffer greater hardship than the level of privation, and indeed misery, that is referred to in paragraph 40. He reminds me, not least in his reply, that it is really elementary in our law relating to claims of refugee status that each case has to be considered properly on its facts. That is of course right. The submission would, as it seems to me, be very powerful but for one important aspect of the matter, and that concerns the way that these cases were run before the IAT.[12]It seems to me to be crystal clear that the appeals were conducted before the tribunal on a generic basis. I have seen the very full opening note prepared for the IAT hearing, as I understand it by leading specialist counsel who conducted the appeals in the tribunal. I think it is plain that the points in paragraph 10 of the skeleton argument, to which I have referred without setting them out, were not discretely run; certainly, they are not discretely run in that opening. I do not see how it could be said that the IAT should have teased out such points for themselves. I accept, of course, that there were statements put in by the individuals concerned, and at least in one case, perhaps more, there was expert evidence relating to a particular position that was being put forward. But if one looks at the way in which the opening is drafted, and it is a very full document, it seems to me to be plain that the applicants' counsel and the tribunal were of one mind as to the reach of the appeal, and that was as described in the short passage I have taken from paragraph 24 of the tribunal's determination. Mr Mullins referred to some particular passages in the opening, not least paragraph 5, where this is said:
"The claimants submit that the issue for the IAT in these appeals is to determine whether the conditions for the safe return with dignity of these Claimants to the areas whence they came has been achieved by the new Government. The claimants submit [then five bullet points are set out] ... (ii) They have in varying degrees lost homes, jobs family and any sense of belonging to the areas whence they came."
[13]Mr Mullins refers also to paragraph 6 of the same document, which starts thus:
"The Claimants submit that cumulatively there are substantial grounds for believing that if returned the Claimants would suffer intolerable deprivations of civil and political rights. The following factual issues are raised by these appeals."
Then there are a number of headings: accommodation, employment, access to state benefits, acts of intimidation/violence, war crimes prosecutions and police protection.[14]It is clear that those matters were before the tribunal. What, however, the opening note does not establish is that the expectation of the applicants by their counsel was anything other than as was described by the tribunal in the passage to which I have already referred. The whole thrust of the appeal was to concentrate on the voluminous documentation in reports, and expert opinions which concerned the situation in Croatia generally as it would affect returning Serbs. Mr Wilken for the Secretary of State referred me to the terms of the applicants' reply before the tribunal, not least paragraph 7, which is as follows:
"The essence of the complaints other than that of MM, is thus the combination of:- i. discriminatory loss of homes, property and livelihood ... ii. discriminatory denial of social and economic rights ... iii. discriminatory denial of judicial assistance in reclaiming homes ... iv. the loss of present stability and security and the facing of a marginalised and ostracised existence ..."
[15]I make it clear that there is some detail added in the document under each of those heads, but what this demonstrates to my mind (which is, it seems to me, all of a piece with paragraph 6 of the opening) is that these points were being made in truth on a generic basis. In the circumstances, and having seen the opening note, the reply, the way the matter was put by the Secretary of State and the way in which the tribunal responded to the arguments and material before them, I do not believe that there is an arguable complaint here as to the approach taken by the tribunal to what has been called "the factual precedent aspect of the case". Of course, and I would wish to emphasise this, it is generally the duty of the Appellate Authorities to deal with appeals before them in all their fullness. But it is also the case that the tribunal may from time to time address a wide range of matters relating to a particular country so as to arrive at conclusions which will guide Adjudicators and later tribunals dealing with cases which concern the same country. It is not to say that when that is done it is not entirely right and proper for the tribunal to be asked in any event to deal fully with the particular case being put forward on the particular facts relating to the particular applicant. But my understanding of the documentation here is that the whole thrust of the appeal was being put on the footing that conditions in Croatia generally were not safe for returning Serbs, and if that was right, then the appeals, no doubt, would succeed. If it was not right, then it seems to me in the particular context here that it was perfectly proper for the tribunal to treat the individual cases on the basis that the question was whether they showed exceptional circumstances. I would not grant permission on the first ground.[16]As for the second ground relating to expert evidence, it is first said that the IAT were not entitled to take a different view of the role of expert evidence from that commended, as it happens by my judgment, in this court in S and Others. In that case I had said:
"In this field opinion evidence will often or usually be very important, since assessment of the risk of persecutory treatment in the milieu of a perhaps unstable political situation may be a complex and difficult task in which the fact-finding tribunal is bound to place heavy reliance on the views of experts and specialists. We recognise of course that the IAT will often be faced with testimony which is trivial or repetitive. Plainly it is not only unnecessary but positively undesirable that it should plough through material of that kind on the face of its determination."
[17]In paragraph 5 of the determination in SK, the IAT, referring to that passage, said:
"We note but respectfully are unable to accept the view of the court of the importance of opinion evidence. The tribunal is accustomed to being served with reports of experts. We have to say that many have their own points of view which their reports seek to justify. The whole point of the country reports is bring together all relevant material. From them, the tribunal will reach its own conclusions about the situation in the country and then will see whether the facts found in relation to the individual before it establish to the required standard a real risk of persecution or of treatment which breaches his or her human rights. Further, the tribunal builds up its own expertise in relation to the limited number of countries from which asylum seekers come. Naturally, an expert's report can assist, but we do not accept that heavy reliance is or should be placed upon such reports. All will depend on the nature of the report and the particular expert. Furthermore, it is rare for such experts to be called to give evidence or for their views to be tested. We were fortunate in S to have had called before us two experts who were truly knowledgeable and who had no particular axes to grind. We have reports from experts in the present case which we shall of course take into account and we will decide what weight should be accorded to their views."
[18]While one might baulk at the IAT's apparently stark departure from this court's view of the importance of expert evidence in this field, in fact on a careful reading of paragraph 5 I rather doubt whether the tribunal is at so great a distance from what was said in S as it first appears. I hope it is clear that nothing I said in S was meant to suggest that the tribunal were bound to accept any particular piece of expert evidence; but rather expert evidence, simply as a class of evidence, must have an important role to play, given the nature of the subject matter of the tribunal's task.[19]I should also say, and it may be that the tribunal misapprehended this, that there is no distinction being made in the relevant paragraph (paragraph 29 in my judgment in S) between the country reports that the tribunal routinely see and an individual expert's opinion. It seems clear that the tribunal for its part did draw such a distinction in paragraph 5 of the determination. I am far from saying they were not entitled to draw such a distinction; but it is not a distinction which, as it happens, was not drawn by myself in this court in S.[20]All that said, the true question here must be whether the tribunal either misunderstood the expert evidence or misdirected themselves in relation to it or reached a decision which was not rationally justified in the light of the expert evidence. Points of that sort are indeed made in the grounds and skeleton. I note paragraph 20 of the skeleton argument:
"No reasonable Tribunal could conclude that this evidence [I will return to that shortly] demonstrated Croatia's 'greater acceptance of the need to show that discrimination is being tackled'."
[21]I refer to that only to show that, as it seems to me, the applicants themselves are there implicitly adopting what may be called a conventional Wednesbury approach to the tribunal's treatment of the evidence. Mr Wilken by his skeleton argument submits for the Secretary of State at paragraph 13:
"The IAT considered 5 lever arch files of material without oral evidence. The IAT's task was to consider that evidence and come to a view. That the IAT did. That there is evidence which may support the Appellants' case cannot be grounds for impugning the IAT's decision."
[22]However Mr Mullins and, at somewhat greater length -- that is no criticism -- Mr Livingston, who appeared only for the applicant NT, had some specific points to make in relation to the expert evidence. They are summarised in paragraph 18 of the skeleton:
"18. The IAT also had before them a report compiled for DfiD by Dr Pajic which confirmed the presence of 'clear ethnic bias against non-Croats' which they considered to be 'now somewhat out of date'. In order to justify this conclusion the IAT referred to Croatia's purported greater co-operation with the international Tribunal for the Former Yugoslavia, (ICTY) as indicating 'a recognition of the importance in Croatia of integration into Western Europe'. The IAT's conclusion was flatly contradicted by Misha Glenny and, it is submitted, perverse."
[23]It is said that the tribunal should have taken account of the evidence of the expert, Misha Glenny, which was before them. I have been shown a particular paragraph in his report. I will not read all of it. It starts thus:
"Secondly, there is the atmosphere of intimidation that is immediately created when potential returnees are told they are not wanted back. The remarkable resurgence in nationalist sentiment occasioned by the Hague Tribunal's issuance of a sealed indictment against General Janko Bobetko, Croatia's Commander-in-Chief, demonstrates fairly clearly how powerful national resentments remain."
[24]The point being made by Mr Mullins is, first, that there is simply no basis for saying that Dr Pajic's material was now somewhat out of date, or at any rate no sufficient basis, and, more substantially, the view taken by the tribunal arising out of what they perceived to be greater co-operation between Croatia and the ICTY was in fact contradicted by the expert, Misha Glenny. As to this, Mr Wilken points out that the evidence of Dr Pajic was based on two visits which he made in the summer/spring and/or summer of 2001 to the country. That preceded the hearing in the Court of Appeal in the S case and there is no doubt, he would submit, that a good deal of evidential water had passed under the bridge since that time.[25]In relation to Misha Glenny, it is clear that what was said in the passage I have read is merely one piece of evidence amid a whole welter of material. The tribunal for its part accepted, as I have already indicated, the detailed submissions made by Mr Wilken in Annex 2 to his written argument. It does not seem to me, with respect to Mr Mullins whose submissions have been very helpful, legitimate to pick out a specific piece of evidence here in the way that he did, and then to castigate the tribunal for not addressing it. It seems to me to be plain that the tribunal have conscientiously examined the mass of material before them. That is very powerfully supported by the extremely detailed reasoning which is to be found in the determination concerning the expert evidence. I am not going to lengthen this judgment by reading it all out. I have, of course, read the tribunal's determination, most of it more than once. There is no point to be made here that the tribunal have simply ignored or failed properly to address a piece of material before them.[26]I should proceed to paragraph 19 of the skeleton argument, which is in these terms:
"The IAT was wrong to rely, for its conclusion of co-operation, on Croatian President Stipe Mesic's willingness to give evidence against ex-Serb/Yugoslav President Slobodan Milosevic before the ICTY, since this evidence was immaterial to the issue of discrimination against citizens of Serb origin. The only material factor in assessing Croatia's co-operation with ICTY was their failure to arrest and extradite any Croat from Croatia of true Croat ethnic origin. Symptomatic of this failure was Croatia's refusal to hand over General Bobetko (despite an ICTY Appeals Chamber judgment against the Croatian Government) or General Anto Gotovina, another very senior Croat general alleged to have been responsible for ethnically cleansing 250,000 Serbs from Croatia during Operation Storm in 1995. This failure to co-operate is, it is submitted, because of a fear on the Croatian Government's part of 'the resurgence in nationalist sentiment' referred to by Misha Glenny if such an arrests are made."
It seems to me plain that it is for the tribunal to decide for its own part how they are going to deal with the expert evidence and in-country reports before them. These references to General Bobetko and General Gotovina do not to my mind point towards any failure by the IAT to deal with all the evidence that they had. It is instructive to note how it was put in the applicants' reply before the tribunal at paragraph 16:
"R [that is the respondent, the Secretary of State] has not sought to cross examine the claimants' experts: Glenny, Gow or the DfiD expert, Pajic and has not put in material specifically rebutting the factual material on which they relied or the reasonableness of their overall conclusion. The weight to be attached to such experts is for the IAT, but they should not lightly dismiss the opinions of those whose intimate contact with these events and actors make them better suited to give an opinion than advocates or even adjudicators."
[27]I have already said that in my view the tribunal has conscientiously addressed the vast quantity of material before it. There is in my judgment no reasonable prospect of a conventional Wednesbury challenge here. There is not on analysis any misdirection of law in paragraph 5 of the tribunal's determination, notwithstanding their express disagreement with an observation made in this court in the judgment in S. It is hard to see how a review more intrusive than a conventional one could realistically be urged in a case where this specialist tribunal, presided over by a specialist judge, has given its mind to such a wealth of material relating to in-country conditions. I will not grant permission on the point relating to the experts.[28]I turn quite shortly to the third ground, Article 14 read with Article 3. The complaint is that the IAT failed to consider whether there was a reasonable likelihood of a violation of Article 14 read with Article 3 in the case of any applicant returned to Croatia. The tribunal, indeed, referred to Article 14 at paragraph 15 of the determination:
"Not surprisingly, greater emphasis has been placed on the human rights claims. While it is recognised that Article 14 is not free standing, it is submitted that discrimination may amount to conduct which is intended to and does arouse in the victim a feeling of fear, anguish or inferiority and so humiliates and degrades him."
[29]Then at paragraph 17:
"We do not doubt that discrimination on the ground of race is a factor that should be taken into account in deciding whether a breach of Article 3 has been established. It may in some circumstances tip the balance. In Cyprus v Turkey the conditions of the enclaved Greek Cypriots was such as to breach Article 3 and the discrimination on racial grounds was the motive."
[30]It is well recognised that there may be a violation of Article 14 read with another Article in the Convention without there being any violation of the substantive Convention right, whether Article 3 or any of the other Convention provisions. To take an example as shortly as I may, in legal proceedings two different sets of procedural standards may apply, such as, for example, to take an extreme and no doubt impossible instance, a rule whereby for some classes of case persons of one race would be entitled to jury trial, but persons of another would not. That would obviously be a violation of Article 6 read with Article 14, even though it could not be suggested that Article 6 of itself required jury trial. There was discriminatory action which was nevertheless within the scope or the ambit of Article 6, and so Article 14 had a field of operation within which to bite. There is a good deal of Strasbourg learning on the scope of Article 14.[31]The difficulty here is to see how Article 14 can apply in an Article 3 case where there is no violation of Article 3 simpliciter. It is true that the tribunal do not, I think, address the question whether there might be a breach of Article 14 read with Article 3 absent a breach of Article 3 itself, but it seems to me that Article 3 is, unlike Article 6 and unlike the political rights in Articles 8 to 11, a provision which has something of an absolute quality. On any given set of facts there either is a breach of it or there is not. There is no analogue to the second paragraph of each of Articles 8 to 11 allowing derogation from the right in certain circumstances. Degrees of treatment short of Article 3, however discriminatory, will not violate Article 14 taken with Article 3, as it seems to me, because treatment short of Article 3 cannot really be said to be within the scope of Article 3 itself. I find it very difficult to conceive of a case, therefore, in which there might be an Article 14 case read with Article 3, but no Article 3 case standing alone. In those circumstances I regard this aspect of the application as insubstantial, and I will not grant permission.[32]I turn lastly to the fourth ground relating to Article 8. I have already mentioned the decision of this court in Ullah and the forthcoming appeal to their Lordships' House. Dealing with the matter as shortly as I may, plainly if their Lordships uphold the decision of this court in Ullah, then there is nothing to be said in support of any complaint relating to Article 8 in these cases. If their Lordships were to hold that Ullah was not correctly decided in this court, then other learning relating to Article 8 applies, not least a case by name Devaseelan; but here -- I will not go into the references -- that case was applied by the tribunal. Thus, as Mr Wilken put it in the course of his submissions this morning, the applicants on this part of the case are caught upon something of a Morton's Fork. Either way, whether this court's decision in Ullah survives or not, there is no room, as I see it, for a discrete Article 8 complaint to be made in the context of this case.[33]For all those reasons, I will not grant permission to appeal. I am grateful to all counsel for their assistance.

ORDER

Permission to appeal refused. Counsel for the claimants to have a detailed assessment for leading counsel's costs of preparing the grounds and skeleton argument.

Cited in 3 later judgments