Tamale v Secretary of State for the Home Department [2005] EWCA Civ 1714

Case No C5/2005/1996

[2005] EWCA Civ 1714

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

ASYLUM AND IMMIGRATION TRIBUNAL

Venue Royal Courts of Justice

Date Friday, 11 November 2005

Strand

London, WC2

B E F O R E:

LORD JUSTICE LAWS

Between

GRACE TAMALEAppellant

-v-

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

(Computer-Aided Transcript of the Stenograph Notes of

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The Appellant appeared in person for in person

for The Respondent was not represented and did not attend

J U D G M E N T

LORD JUSTICE LAWS:

[1]This is an application for permission to appeal against the order of the Asylum and Immigration Tribunal ("AIT"), dated 12 July 2005, by which the AIT upheld the decision of the adjudicator of 17 November 2004 dismissing the applicant's appeal against the decision of the Secretary of State dated 6 August 2004 to refuse her asylum claim and her claim to stay in the United Kingdom on human rights grounds, and also the further decision of the Secretary of State on 19 August 2004 to issue removal directions.

[2]The decision of 17 November 2004 was sought to be appealed to the Immigration Appeal Tribunal. On 3 March 2005 the Immigration Appeal Tribunal remitted the matter to be considered by a different adjudicator. By force of transitional statutory provisions in the current legislation the reconsideration was conducted in the AIT by a panel of two immigration judges.

[3]The applicant is a citizen of Uganda, born on 19 September 1978. Her claim to asylum was described at length by the adjudicator on 17 November 2004. It is very succinctly stated in the Home Office letter as follows:

"6 You fear that you will be imprisoned by government agents if you return to Uganda because they believe that you and your husband were involved with PRA rebels (People's Redemption Army). On 3 June 2004, men came to your house purporting to be policemen. The men asked for your husband and then searched your house. They asked your husband for the SIM card in his mobile telephone but he deliberately broke it into two pieces. The men then started to beat your husband with the butt of their guns and kicked him until he fell down. When you attempted to call the police one of the men followed you and kicked you in the back. You fell to the ground injuring your right knee and the finger on your left hand. The man then pointed a gun at you and ordered you not to move. The men then left your house taking your husband with them. On the 14 June 2004 some men returned to your house but you were not there at the time but they mistook your sister for you and abducted her. They took her to a building and started to ask her questions about the PRA rebels. However, after she told them that she did not know anything they then released her."

[4]The Secretary of State did not believe the applicant's account. However the original adjudicator accepted a considerable portion of her claim (see paragraphs 43 to 47 of his decision):

"47 With regard to factual aspects of the appellant's claims I found that her evidence was credible and consistent, and that she has explained satisfactorily the inconsistencies which were suggested by the respondent's representative relating to the employee of her husband, and the reason why she did not report to the police on the night of 11 June 2004 what had happened. She has explained why she did not go to the police until the next morning."

However the adjudicator rejected paragraph 48, the applicant's stated fears as to what would happen to her on return to Uganda and he gave reasons for doing so.

[5]The Vice-President giving leave to appeal this decision considered it arguable that the adjudicator's findings of fact - clearly those adverse to the applicant - were perverse. Before the AIT on the reconsideration hearing the applicant gave evidence again. This time the AIT found her account to be incredible (see paragraph 33, pages 15 onwards). They gave very detailed reasons for that finding. Then they stated (paragraph 42):

"42 In the light of all the above, we find that there was no Refugee Convention reason for the appellant to leave Uganda. It is considered that the appellant fabricated her account in an effort to establish an asylum claim. Neither she nor her husband was of any interest to the authorities before she left, and the appellant will be of no interest to them on return. As a failed asylum seeker, the appellant will suffer no problems on return. Paragraph 6.117 CIPU indicates that 'only failed asylum seekers who had previously committed a crime in Uganda, and are on the wanted list, would be arrested on arrival in that country. Someone would not be imprisoned simply for being returned to Uganda as a failed asylum seeker'. There is no contrary information in the appellant's bundle."

[6]It is asserted in the grounds of appeal that the AIT disregarded the positive findings of fact made by the adjudicator originally as to the credibility of the applicant's account.

[7]Miss Tamale has appeared before me in person this morning. Her English, as I understand it, is limited. She was expecting the assistance of an interpreter today. No interpreter has appeared. As I said to her, and I hope she understood, in the ordinary way I would adjourn the case so that an interpreter might be present. I am not going to adjourn it for that reason. I am going to adjourn the case because it seems to me that there may very well be an important argument to the effect that the applicant was entitled to the benefit of the favourable findings of fact which the original adjudicator had made and should not have been deprived of that benefit by the Immigration Appeal Tribunal on reconsideration of her case after the grant to her of permission to appeal. I have a recollection that this problem has arisen before in another case or cases. I have not the material in front of me to determine that.

[8]It seems to me that in those circumstances the only fair course to take is to adjourn the case for the Home Office to be represented in order that they might assist the court on the point. I have explained to Miss Tamale that I will adjourn it, and I have given my reasons for doing so. As I said to her, it will be adjourned until next Wednesday, 16 November at 9.45 in the morning. (To the appellant) It is Wednesday. Keep in touch with the court, and they will see what can be done about an interpreter.

[9]In the meantime the Treasury Solicitor must have the papers so that they can brief counsel for next Wednesday morning.

[10]For the reasons I have given that is the order I make. The matter is adjourned until 9.45 next Wednesday, 16 November. It may be in a different court. ---