SS v Secretary of State for the Home Department [2006] EWCA Civ 171

Case No C5/2005/0813[2006] EWCA Civ 171
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
[HX/60351/2003]
Venue Royal Courts of JusticeDate Thursday, 27 January 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL
LORD JUSTICE SEDLEY
SIR PETER GIBSON
Between
SSAppellant- 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 GILL QC (instructed by Brent Community Law Centre, LONDON NW10 2JR) appeared for Appellant.MR S KOVATS (instructed by The Treasury Solicitor, LONDON WC2B 4TS) appeared for Respondent.
J U D G M E N T

LORD JUSTICE PILL:

[1]This is an appeal against a judgment of the Immigration Appeal Tribunal notified on 28 January 2005. The tribunal dismissed an appeal from the determination of an adjudicator, notified on 18 February 2004. The adjudicator dismissed an appeal by SS, the appellant, from a decision made on behalf of the Secretary of State for Home Department of 25 September 2003, refusing leave to enter the United Kingdom, asylum having been refused.[2]By a respondent’s notice the Secretary of State seeks to argue, amongst other things, that the adjudicator made no error of law, and that the tribunal had no jurisdiction to hear an appeal from him, though the jurisdictional point as such has not, in the event, been taken.[3]The appellant, now 33 years old, was born in Lebanon to a Palastinian father and a Lebanese mother. He claimed asylum on arrival in the United Kingdom on 4 April 1999. We do not have a date for his first interview but it does appear that it was some months later. For reasons unknown to the court, he was not further interviewed until 28 July 2003. Those interviews, and a witness statement from the appellant dated 8 December 2003, were before the adjudicator. The appellant also gave oral evidence and was represented at the hearing.[4]A series of points was taken before the adjudicator. In his determination, the adjudicator set out the nature of the appellant’s claim. He considered the interviews, the conduct of both of which was criticised by the appellant, and that appears to have been a major plank of the case he presented. In paragraphs 10-15 of his determination, the adjudicator rejected the criticisms of the interviews. He found that there were inconsistencies in the appellant’s account of relevant events. He noted at paragraph 16 that:
“the inconsistencies are not resolved by his oral evidence or the submissions made on this issue.”
That finding was in relation to a specific issue as to dates.[5]The adjudicator dealt at paragraph 17 with a claim that the appellant’s problems stemmed from a time years before when his father had converted to the Shia faith. The adjudicator’s conclusion was:
“I find that he is of no interest to Amal or Fatah simply because of his Shia faith.”
[6]The adjudicator considered the suggestion that the appellant would be identified as a "traitor and collaborator”. It will be necessary to trace the background to that claim, which was clearly made at the hearing. The adjudicator noted in his recital of the claim that the appellant: "feared the Palestinian groups, because having lived in the security zone he would be regarded as a traitor and collaborator of the Israelis.”[7]As a matter of fact, the Israelis had controlled the security zone up to and including the time when the appellant had left there, but by the time of his second interview and statement, and the hearing before the adjudicator, they no longer did so.[8]At paragraph 18 the adjudicator stated that:
“In so far as the appellant suggests by his evidence that he will be identified as a traitor and collaborator again I note that this was not introduced until his asylum interview.”
[9]The adjudicator added:
“This claimed fear is grounded on the claim that his brother fought for Lahad and that his uncle was connected with the SLA. [These were Israeli-dominated bodies]. He deduces that they will know of him because the quality of the Hezbollah intelligence network which intelligence he says they will have shared with other groups.”
[10]Having considered further possibilities, the adjudicator’s conclusion was a strong one:
“In so far as the appellant only developed this part of his claim fears some four years after arriving in the UK and since it is at best speculation on his part I am not persuaded that this is a genuine fear. I find that this claimed fear is a fabrication designed to replace the original claimed fear of persecution by Lahad, made in the knowledge that that original claim of fear had disappeared with the collapse of Lahad and the SLA following the withdrawal of the Israelis.”
[11]At paragraph 20 the adjudicator dealt with a further claimed fear, that is of persecution by the Lebanese authorities. He was not impressed by that claim. His general conclusion is at paragraph 21: "In the round having had the benefit of the appellant giving evidence before me even in the absence of cross-examination I have found that his attempts at explaining the criticisms of his evidence not persuasive. He has failed to explain contradictions in his evidence. He has failed to explain why he was not previously forthcoming with his now claimed fears. The impression gained from his second interview especially towards the conclusion is that he was willing to suggest any reason he could come up with as to why he feared persecution if returned. In so far as his wish to avoid being returned relates to these claimed fears of persecution I do not find him credible. In view of the inconsistencies in his evidence and his willingness to fabricate other elements of his asylum claim I do not accept his story about Lahad attempting to recruit him and his subsequent flight.” Paragraph 22: “I find that the appellant is not sought by, or of interest to the Lebanese authorities. I find he is not of interest to any Hezbollah, Amal, Fatah, or Islamic Jihad”. In paragraph 26, the adjudicator, having set out the conditions of article 1 of the convention, stated: “I have not found the appellant to be a credible witness.” Paragraph 28: “I do not believe this appellant genuinely fears persecution from these several sources as he claims. He is prepared to claim a fear of anything if it will assist in prolonging his stay in the UK. On the facts in the context of the objective materials his claim is not well founded.”[12]The claim under the European Convention on Human Rights was also rejected and was not pursued before the tribunal.[13]In a lengthy skeleton argument, Mr Gill QC has considered the background of the appellant, his early years in a Palestinian refugee camp in the south of Lebanon, the difficulties faced by Palestinians living outside the camps in Lebanon, and the links members of his family had with the South Lebanon Army (“SLA”) Lahad. The appellant went to Beirut in late 1998 and stayed with a relative of his mother for four months before leaving Lebanon. Mr Gill states that in the year 2000 the SLA collapsed and pro-Israeli forces withdrew from the security zone in south Lebanon. Hezbollah became more prominent in the former security zone; by the time the appellant was interviewed in July 2003 the situation in Lebanon had therefore changed. Because of the family’s known involvement with the SLA, the appellant was at risk of persecution by pro-Palestinian groups including Hezbollah, Fatah and Amal. The appellant’s case was, it is submitted, more subtle and individual-specific than most, in that he initially claimed a fear of persecution from the SLA for fleeing from them, and a persecution from groups such as Hezbollah for collaborating with the SLA. After the collapse of the SLA in 2000 he feared persecution from everything, stating at interview: “I fear everything”.[14]It is likely that the appellant will be suspected of being a collaborator with the SLA, it is submitted, and it was unreasonable for the adjudicator to state that the appellant had opportunistically shifted the emphasis of his case because there had been a change of circumstances in Lebanon between 1999 and 2003. The shift in position had not been that of the appellant, it is submitted; the shift had been in the situation in Lebanon.[15]Neither the adjudicator nor the tribunal had considered the factual basis of the appellant’s case with any real care, it is submitted. With the protection of the SLA removed, the appellant was at greater risk than before from Hezbollah, Fatah and Amal, on account of members of his family having been perceived to have collaborated with the SLA. Moreover, consideration should be given, it is submitted, to the discrimination suffered by Palestinians in Lebanon.[16]Mr Gill submits that the findings of fact as to credibility by the adjudicator were undermined by his failure to appreciate the relevance of the change of regime, as I will describe it as shorthand, in southern Lebanon. Moses J granted permission, following an oral hearing, on the basis that:
“The situation with which the applicant was faced was wholly different from the time when he first left Lebanon in 1999 and the time when, some three or four years later, he was given a full interview.”
It is submitted that it is arguable that that factor had not been taken into account when the appellant’s credibility was rejected.[17]In my judgment, the case turns essentially on whether the adjudicator was justified in making the findings of fact on credibility that he did. If his findings were perverse or based on a misunderstanding of the case put to him, that can amount to an error of law. For that reason it is necessary to consider in some detail the information which was available to the adjudicator.[18]There is no reference to the main risk now perceived, that he is suspected of having collaborated with the Israelis, in the first statement; that is not surprising in view of the situation which existed in Lebanon at that time. The adjudicator did find at paragraph 19 that Lahad had not attempted to recruit the appellant or that subsequently there had been a flight for that reason. Mr Gill submits that that finding of fact, too, is infected by the alleged misunderstanding of the case being presented.[19]The appellant was interviewed in considerable detail in July 2003, a representative being present in the course of the interview. He did state that he had lived in what used to be called the security zone, occupied by Israeli and Lahad forces. Lahad, he said, worked for the interest of Israel; the appellant has resisted supporting Lahad and had gone to Beirut. He did not have problems in Beirut because he met with nobody and remained inside the house. “Question 40:
“Did you have any problems in Beirut?”
Answer:
“No, I didn’t, because I met with nobody, I remained inside the house. Hezbollah, the Palestinians and the Syrians knew that my brother was fighting with Lahad.” “Question 46: “Did you leave Lebanon because you feared Lahad?”
Answer:
“I feared Lahad, and I feared everything.” “Question 54: “Do you consider it would now be safe for you to return to your home, now that Lahad no longer exists? Answer: “No, I wouldn’t feel safe, because I have problems with Fatah and Amak, because the problem with Amak started with my father. I have no intention at all of going back to Lebanon, and if I had to go I have no means of proving my link with Lebanon because of the deaths of my father, mother and brother.” “Question 60: “What do you fear if you are returned?”
Answer:
“I fear everything, because Lebanon is an unknown entity, Israel can enter it any time, and the problems that I mentioned between myself and my father’s family and with Fatah and Amal. Possibly, if I get back they take me to court, or they may kill me without trial because the hatred between Shia and Fatah still exists.”
Answer:
“I feared Lahad, and I feared everything.”
[20]The representative, asked if he had any further comments, stated:
“The client has put a lot of weight behind his case, about converting from Sunni to Shia.”
[21]The Secretary of State’s reasons for refusal were set out in a letter dated 18 September 2003. The contents of that letter are, in my judgment, consistent with confronting and dealing with the points the appellant had made at interview. There is a reference, in the letter, to the withdrawal of the Israeli army from the former security zone, and to Hezbollah effectively being in control of the area. The appellant prepared a document in reply to that letter. It refers to the groups in Lebanon:
“Hezbollah, Amal and other groups are still in control of everything in Lebanon and they can get anyone they want anywhere in Lebanon and Syria … I would like to mention that in Lebanon these groups are stronger than the government, they even have their own searching points throughout Lebanon.”
There is then a reference to the SLA still being in Lebanon, and a fear that they will return to reoccupy that country.[22]Mr Gill has submitted that the gravamen of the appellant’s case is the change of regime, and the lack of comprehension that the appellant was claiming that his fear on return related to reaction from Hezbollah because the appellant had been suspected of collaboration with Lahad and the Israeli authorities. The adjudicator wrongly focussed on past history and not on more recent events. I find it astonishing that if the appellant genuinely had fears, on the ground of the regime change in the south of Lebanon, this did not emerge either in the 2003 interview or in the document in reply to the Secretary of State’s decision.[23]The appellant had many opportunities in the course of the interview, in response to questions put to him, to make the point which at this hearing Mr Gill seeks to make, that the appellant’s fears are specific fears and must be seen in the light of the current situation in Lebanon. The change of regime was known to everyone. Mr Gill submits that it is not surprising that the appellant did not make the point during the 2003 interview. He says it did not need to be articulated, it was obvious.[24]Given the questions put to him, some of which I have cited, if there was substance in the appellant’s fears and in his claim that he was a refugee, he would have made mention of that fear in the interviews. He referred to a number of other matters, but not specifically to that one. References to Hezbollah are not linked with the fact that Hezbollah are now in control, or thought to be in control, of parts of Lebanon.[25]Mr Gill rightly draws the attention of the court to the fact that the interview was not tape recorded but the present complaint is not a formal matter, it is a matter of substance. Had the appellant’s fears been real ones, they would almost certainly have been brought out in the interview to which I have referred. The adjudicator was entitled to have regard to the contents of the interviews when considering the credibility of the appellant. He had every opportunity to consider that credibility, oral evidence having been given. In addition to the statements, the adjudicator had a written statement from the appellant which began with a note that he had been “legally advised as to the relevance and detail”; that is, in relation to the reasons for refusal given by the Secretary of State in his letter. In the statement, various fears are expressed and it is right to say that at paragraph 10 it is stated:
“I understand that the SLA is no longer a direct threat to me, but the Palestine extremist groups are still very active and also the other Lebanese groups such as Hezbollah and Amal would be interested in me. Furthermore, my father’s relatives still oppose my existence and they will make my life unbearable if I were to return to Lebanon.”
[26]Even there, no specific mention is made of the fact that Hezbollah controlled the south of Lebanon and this is the point which the appellant now wishes to emphasise. Detail was again given about the former fears in relation to Lahad. In paragraph 19 the appellant stated:
“I confirm that I cannot return to Lebanon. It would not be safe for me and I would not be able to live a normal life. I therefore humbly request that my application for asylum be allowed.”
[27]Application for permission to appeal to the IAT was made; that was drafted by counsel. There is no reference in the proposed grounds to the gravamen of the case at it is put before this court. Before the IAT itself the appellant was represented by counsel, although not by counsel who had drafted the grounds. The grounds of appeal stated:
“The persecution feared by the appellant is for reasons of his Palestinian nationality in Lebanon … “Where the state actively excludes a category of person the discrimination appears a particularly serious quality.”
Paragraph 9: 28. ”As found by the adjudicator in paragraph 32, the authorities deliberately discriminate against Palestinians in order to not make life comfortable for them.” In that document, it is his discrimination suffered as a Palestinian which is relied on and not the point which is now sought to be made.

Paragraph 9:

[28]Before the tribunal itself, counsel who settled the grounds did seek permission to amend his grounds; that was refused. What the permission sought, however, was not permission to introduce the present point, but permission to request a remittal to an adjudicator:
“To make clear findings of fact upon matters material to the issue before the tribunal.”
It is said that the appellant’s “particular circumstances were important”, but again no reference was made to the point which, of course, had been considered by the adjudicator, as to the perceived fear arising from the change of regime in southern Lebanon.[29]We have been supplied today with a note from the Home Office Presenting Officer present at the hearing. He noted that the application to amend had been made: ”Firstly, he [that is, counsel for the appellant] asked that the appeal be remitted as the adjudicator had not made findings in the appellant’s previous predicament in LBN.” It was sought also to seek an adjournment on a ground not relevant for present purposes.[30]There is no suggestion that the point now made of the appellant being a suspected collaborator was on instructions to be put forward. These points are not criticisms of the lawyers who have advised the applicant at different stages. They demonstrate the instructions given by the appellant and affect the credibility of the appellant’s entire claim that he is at risk of persecution on return to Lebanon. It is submitted that the tribunal erred in law in refusing to allow the amendment. I cannot accept that. It was well within their discretion to refuse the amendment which was sought and it was a decision which was fully justified.[31]The tribunal recorded at paragraph 12 of their determination that an application to amend had been made. There is no reference in that paragraph to the point now emphasised by Mr Gill, and emphasised to the extent that the word “collaborator” appears at least thirteen times in the helpful skeleton argument which he has submitted. Mr Gill did not appear at earlier stages and, as I have said, the considerations to which I have referred do not involve criticism of those who have advised the appellant.[32]I return to the question whether there is merit in the submission that the adjudicator made the credibility findings he did because of a serious misapprehension. That case is not, in my judgment, made out. The adjudicator was entitled on the material before him, and the way the case was put, to make the credibility findings he did, and to express them in the somewhat trenchant terms he did. A number of diverse points were taken before the adjudicator on behalf of the appellant. Of course an appellant does not wish to overlook or neglect points which he considers may have weight, but against the background of the evidence at the hearing before the adjudicator, in my judgment the adjudicator was fully entitled to reach the conclusion upon credibility he did. That being so, more sophisticated arguments as to particular findings of fact do not arise in the way they often would.[33]The second submission is in relation to the absence of findings of facts. Facts were found and, on appeal to them, the tribunal made assumptions, which they regarded as being assumptions in the appellant’s favour, as to the fact that he had lived in the south of Lebanon. Mr Gill submits that, for example, the adjudicator should have made a finding of fact as to why the appellant had lived in the security zone. In my judgment, his approach to the case cannot be criticised. He made such findings of fact as were necessary upon the case as presented to him, and upon his assessment of the credibility of the appellant.[34]Detailed consideration of the decision of the tribunal does not, in those circumstances, arise. They considered there was no error of law by the adjudicator, and there is no fresh error of law by them which might found an independent case. I agree with the conclusion that the adjudicator has not erred in law and I would dismiss this appeal.

LORD JUSTICE SEDLEY: Moses LJ gave permission to appeal so as to enable it to be argued that the appellant’s true case arising out of the collapse of the SLA and the consequent rise of Hezbollah had not been allowed to be advanced before the IAT. I do not, with respect, find it as surprising as Pill LJ does that the appellant himself had not put his case this way at interview. People do sometimes fail to put their best foot forward in such situations. It was the job of his representatives to present his case at its best, particularly at the appeal hearings.

[36]For my part, I have little doubt that if the IAT had had before them an application to amend the grounds so as to flag-up the change in the political situation as an issue which had not been properly dealt with in the adjudicator’s fact findings and decision, it would have been unjust to refuse the amendment. There was evidence, including the 2002 Amnesty Report, to support it, and Mr Gill has demonstrated, at least to my satisfaction, that the point, had it been advanced and admitted, had some life in it. I do not, with respect, accept Mr Kovats’ submission that it could not have availed the appellant in any event in the face of the adjudicator’s reasoning. The adjudicator’s disbelief of most of the appellant’s case was in large part predicated on its inconsistency with the situation before the withdrawal of the SLA. But nothing we now know indicates that the point was sought to be raised.[37]As to the draft amendment tendered in manuscript to the IAT, to which my Lord has referred - and with all due respect to its author it is so unspecific as to have invited the refusal which met it - there is no suggestion from Mr Gill that anything more specific was advanced orally in support of the application. The Home Office Presenting Officer’s file note, dated five days after the hearing, suggests that counsel’s application had been directed to the need for findings on “the appellant’s previous predicament in Lebanon.” It follows that, while I agree that this appeal fails, I do so not on the principal ground which has commended itself to Pill LJ, but on the ground that the case now relied on was at no stage acceptably advanced on the appellant’s behalf. The adjudicator, for his part, dealt with the case that he had before him and cannot be criticised for so doing. But I do not accept that in so doing he took into account the recent situation and matched the appellant’s case against it. Indeed, he did the reverse. At the end of paragraph 19, in a passage which Pill LJ has quoted, he took the change of situation, precisely because it had not been relied on as the source of a fresh well-founded fear, as demonstrating that the claimed fear of Hezbollah had simply been fabricated to take advantage of the new situation. It may be - Mr Kovats takes no formal position on it - that a fresh application, whether for asylum or for non-removal, would be entertained by the Secretary of State on the grounds now advanced by Mr Gill, at least if the failure to advance them sooner is adequately explained. But for the reasons I have given, and those only, I too agree that the appeal has to fail.

SIR PETER GIBSON: I too take the view that this appeal must be dismissed. I do so both on the ground that the tribunal made no error of law in refusing to allow the amendment to the grounds of appeal for the reasons given by Pill LJ and Sedley LJ, and also on the ground that there was no error of law made by the adjudicator in relation to his findings of fact and, in particular, in relation to the credibility of the appellant.

[39]On the first ground, I see no sufficient reason to interfere with the exercise of discretion by the tribunal in relation to what, on any footing, was a very late application to amend and in particular having regard to the imprecise wording of the grounds sought to be adduced. On the second ground, the adjudicator, who had the advantage of seeing and hearing the appellant give oral evidence as well as having the notes of both the port interview and the subsequent asylum interview, rejected in particularly strong terms the appellant’s allegations as to his fear of persecution. In my judgment, having regard to the questions which were raised in the interviews, and to the answers given by the appellant, the appellant had ample opportunity to state what were his true reasons for fearing to return to Lebanon. He chose to attack the interviews on various grounds as to the questions that were being put and as to the limited opportunity he had to answer the questions asked of him. In my judgment, the adjudicator was fully entitled to reject what the appellant said in this regard. It seems to me that there is no sufficient ground for saying that the conclusions which the adjudicator reached were not ones open to the adjudicator on the material before him, having regard to the way the matter was put by the appellant.[40]For these reasons I also would dismiss this appeal.

Order

Appeal dismissed.