K v Secretary of State for the Home Department [2006] EWCA Civ 1226

Case No C5/2006/0481[2006] EWCA Civ 1226
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
(AIT NO. AS/15861/2004)
Venue Royal Courts of JusticeDate Tuesday, 8 th August 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE SEDLEY
Between
KAppellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR M CHATWIN (instructed by Messrs Srinivasans, London E6 2JA) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED..
J U D G M E N T

LORD JUSTICE SEDLEY:

[1]The applicant is from Burundi. He claimed both asylum and human rights protection. The asylum claim failed before the adjudicator and has not been revived. The human rights claim succeeded in unusual circumstances: the adjudicator, having disbelieved the entirety of the applicant’s account of persecution and escape accepted that, nevertheless, the human rights situation in Burundi was so bad that sooner or later the applicant would suffer violence as a member of a crowd, and was therefore in the adjudicator’s view entitled to article 3 protection.[2]I am bound to say in passing that there is much of the adjudicator’s determination which might be thought not only unsatisfactory but positively eccentric. The Home Office appealed the element of the decision which had allowed the appeal on human rights grounds. The applicant did not cross-appeal on the refusal of asylum, nor did he seek by respondent’s notice to sustain the human rights decision in his favour on any grounds more convincing than those relied on by the adjudicator.[3]The AIT, as the appellate tribunal have now become, chaired by Mr George Warr, a senior immigration judge, in a decision which I have to say is in striking contrast in its cogency to the adjudicator’s, held that the adjudicator had in effect held that any Burundian was now at risk of article 3 ill treatment and so entitled to protection, a proposition which Mr Chatwin in this court has not sought to dispute. For my part I accept that such a situation is not legally impossible; we have encountered it from time to time in other parts of the world. But it does require strong and clear evidence to establish it.[4]Before the AIT the applicant was represented by Mr Boyle who, it is not clear, was either a solicitor or counsel instructed by a firm of solicitors, and Mr Boyle did his best. He suggested that what might place the applicant at risk was being a failed asylum seeker or his language, which is Swahili, or his sex or his age. None of these characteristics, however, had been advanced previously as risk factors.[5]As to the situation in Burundi taken by itself, the AIT followed its own decision in N (Burundi) [2003] UKIAT 00065, holding that the situation of the population generally in Burundi, while extremely poor, did not cross the article 3 threshold. They concluded that the adjudicator had made a material error of law in, in effect, conjuring a generalised article 3 claim out of evidence that could not sustain it.[6]Mr Chatwin, who has appeared this morning for the applicant on short notice and has, if I may respectfully say so, done an admirable job on his behalf, submits that there was in any event an obvious article 3 or asylum point based not on any of the factors raised by Mr Boyle, but on the applicant’s mixed ethnicity, which was Tutsi and Hutu. Now it is true that this was an issue that had been directly addressed in the original asylum claim because it is responded to in detail in the Home Office letter of refusal. It is also clear from the adjudicator’s decision, see paragraphs 5 and 15, that it was raised again on the appeal to the adjudicator and, so far as I can see, it went entirely unaddressed by him.[7]The remedy for this, however, was a cross-appeal and there was none. It was not, in my judgment, arguably a point of such obviousness that it had to be taken in any event by the AIT, given in particular the equivocal background evidence about mixed marriages and their offspring in Burundi.[8]So far, therefore, I can discern nothing wrong in law with the AIT’s decision.[9]But Mr Chatwin goes on to argue that the right course for the AIT, having found an error of law in the adjudicator’s decision, was to send the appeal on for a rehearing. In many cases, no doubt, a full or partial rehearing is the only way to cure the damage done by an error of law at first instance, but it is by no means so in all cases.[10]There is also a public interest in finality, and the undisturbed findings of the adjudicator about the applicant’s veracity and his history were properly treated by the AIT in the situation before them as final. What remained for them was the question whether, despite those findings, the applicant would be at real risk on return. The only available answer to this, in the AIT’s view, was no.[11]It gives me no satisfaction to reach the conclusion that there is no realistic prospect that the applicant will be able to upset this. The reason it gives me no satisfaction is that, for reasons I have indicated, a cross-appeal ,had one been lodged, might well have produced a complete rehearing. But this court cannot rewrite history and the history is that on the single issue which came before the AIT, they were bound to find an error of law as they did.[12]Mr Chatwin’s final point, however, is this: he argues that the AIT’s duty did not end here. Having found an error of law, they could not just leave a void and allow the Home Office to succeed, as if they had made out their case, without themselves analysing the evidence and making their own finding as to whether there was or was not a generalised risk of inhuman treatment facing all Burundians.[13]I was troubled by this point at first but it seems to me, looking again at the AIT’s determination, that they had indeed addressed exactly the issue that Mr Chatwin suggests they should have done. At the end of paragraph 13 they say:
“On the Adjudicator’s findings anyone who did that would be entitled to win his claim under Article 3. Counsel sought to narrow the field slightly to Swahili speakers. However that was not the basis on which the adjudicator decided this appeal and it was not sought to lodge a respondent’s notice or cross-appeal supporting the Adjudicator’s decision on other points. There was no reference in the skeleton argument to any other way in which the Adjudicator might have been entitled to allow the appellant’s human rights appeal.”
Then at the end of paragraph 15:
“The conclusion that he would suffer a breach of his Article 3 rights was not soundly based. We find in the premises that the Adjudicator’s decision was flawed by a material error of law.”
Then crucially at paragraph 17:
“In the premises, we see no justification for remitting this appeal for a further or fresh hearing. On the Adjudicator’s findings, the appeal should have been dismissed.”
That last passage is a determination that there was on the facts before the adjudicator no sufficient basis for finding a generalised risk of violation of their human rights facing all Burundians.[14]When one looks back in the AIT’s determination one sees at paragraphs 11 and 12 why this is so. There they cite the case of N, which I have mentioned, and they summarise it by quoting from the case the following proposition:
“‘… whilst the situation in Burundi is extremely poor for the population as a whole following the civil war, it does not in context cross the minimum threshold required to establish a real risk that the respondent would face torture, or inhuman or degrading treatment or punishment on return.’”
[15]That decision, as the AIT noted, had been before the adjudicator. It was a decision which in their judgment, unless he had some reason to depart from it, he ought to have followed, and that is why they found that on the adjudicator’s findings the appeal should have been dismissed. It was not, in other words, in their reasoned view a case for remission.[16]It follows that this application for permission to appeal cannot succeed. I have already expressed my dissatisfaction with the situation in which it has turned out to be so. But the water has now flowed under the bridge and we have reached, I am afraid, an end point.[17]I reiterate my gratitude to Mr Chatwin for the cogency of his submissions this morning. If anybody had been able to assist the applicant it would have been him, and I am afraid he has not been able to do so.

Order

Application refused.