De Sousa v Secretary of State for the Home Department [2006] EWCA Civ 183

Case No C5/2005/1724[2006] EWCA Civ 183
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
[AS/00333/2004]
Venue Royal Courts of JusticeDate Friday, 6 February 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE LAWS
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE CARNWATH
Between
DE SOUSAAppellant- 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)
MRS JOANNE ROTHWELL (instructed by the Immigration Advisory Service) appeared for Appellant.TREASURY SOLICITOR appeared for Respondent.
J U D G M E N T

LORD JUSTICE CARNWATH:

This

[1]is an asylum appeal relating to an applicant from Angola. She was born in February 1987 and came to this country in November 2003 when she claimed asylum. When she arrived she had one child who had been born in February 2003, and another was born in July 2004. She claimed asylum in December 2003 and was refused. She appealed to the adjudicator, who dismissed her appeal. Permission was granted for an appeal to the IAT, who also refused claim. She appeals to this court on two grounds. On one she was granted permission by Buxton LJ, on the other we granted permission at the beginning of the hearing.[2]The background facts can be taken from the decision of the adjudicator, who found her to be “in the main a credible witness”:
“9. In her statement the Appellant says that her father had been involved in politics for many years and was a member of FLEC. In 2003 her father became more involved in politics and started to hold meetings at the Appellant’s house. The meetings happened approximately once a week. When the meetings took place her father would tell the Appellant to leave the house and the Appellant would go across the street to a neighbour’s house from where she could see when people left her house and therefore when the meetings were over. “10. The Appellant’s mother would sometimes also attend the meetings and the Appellant could tell that the Appellant’s mother was worried about her father’s involvement in the meetings. However, the Appellant’s mother told the Appellant that she should not get involved or be interested in what was happening. The Appellant remembers that after the last meeting that took place at her house her mother and father were both extremely upset. The Appellant was scared to ask her mother why her parents were so upset because she had been told not to take an interest in the meetings. After that meeting her mother would not allow the Appellant out of the house, even to go to do her work of selling food in the street in Chibo. The Appellant sensed that both her mother and father were afraid of something but did not know what it was they were afraid about. “11. One day her father left the house and did not return. The Appellant’s mother said that her father’s disappearance was connected to his political activities but did but did not know where the Appellant’s father was and kept saying that she did not know if they had killed the Appellant’s father. “12. Approximately a week later two armed men wearing normal civilian clothes came to the house and put a gun to the Appellant’s mother’s head and asked where the Appellant’s father was. The Appellant’s mother said that she did not know but the men did not believe her and took her away with them. The Appellant assumes that the men were police because they were armed although they were not wearing uniforms. The Appellant added in her SEF statement the information that the men told her that if her mother were not telling the truth they would come back and kill her and her daughter. “13. Towards the end of that day a friend of the Appellant’s father, called Antonio, came to the house. Antonio had been one of the people who had attended some or most of the meetings which happened at the Appellant’s house. The Appellant felt that Antonio knew that something had happened because he was scared and kept asking the Appellant where her mother had gone. The Appellant was very upset and told him what had happened and that the two men had taken her mother away. Antonio was very scared himself and told her that it was not safe for her to stay there and that she and her baby would be killed if they did not leave.”
[3]The second part of paragraph 12 is a summary of the applicant’s written statement. The relevant passage reads as follows:
“A week after his disappearance I was at home when two men wearing civilian clothes came to our house and asked my mother the whereabouts of my father. I believe that the two men were policemen as they were armed. My mother told them that she did not know where my father was. The two men became angry and they pointed a gun at my mother saying that she was lying and they told her to follow them. They told me that if my mother refused to tell the truth they would come back and kill my daughter and me.”
[4]The adjudicator’s findings on the question of the circumstances in which she left Angola are set out in paragraphs 19 and 20:
“The Appellant has no evidence that her father was a member of FLEC, she simply assumes that he might have been because he held political meetings in his house. Similarly she does not know for sure that the men who came and took her mother away were police, she presumes that they were because they had guns but they were not in uniform. Given these facts, I find that, even on the low standard of proof applicable, the Appellant has not satisfied the burden upon her of showing that her father was a member of FLEC or of interest to the authorities. I note that, despite the armed men’s threats to her, she herself was not harmed. The fact that she was not taken away with her mother would appear to show that, whoever the armed men were, they did not think that she would have the information about her father that they were seeking. “I have taken into account the fact that a man called Antonio, who attended at least some of the meetings at the Appellant’s house, clearly thought that the Appellant was in danger. In the light of the objective evidence of abuses by the police and armed forces, I accept that, if the armed men who came to her house were indeed police, this may have been a realistic fear. Nonetheless, if the armed men were police they clearly thought the Appellant had no useful information to give them or they would have arrested her at the same time as her mother. I therefore find that, even if the Appellant’s father was a member of FLEC, no similar political opinion was imputed to the Appellant at the time of her mother’s arrest and that there is therefore no reason why the Appellant should be of interest to the authorities if she were returned to Angola when she ceases to be a minor.”
[5]So the adjudicator rejected the case that, at the time she left Angola, the applicant had a well-founded fear of persecution for a convention reason so as to qualify as a refugee. It is convenient at that point to note that the IAT upheld that part of the decision because they thought that it disclosed no error of law.[6]Going back to the adjudicator’s decision, she then went on to consider the consequences: first whether the applicant could be returned to Cabinda, and secondly if not, whether she could be returned anywhere else in Angola. It is important of course to bear in mind at this point that the adjudicator was considering the matter on the basis that she had found the applicant not to be a refugee under the Refugee Convention; but on the other hand it was necessary also to consider her position under the Convention of Human Rights.[7]As to the possibility of return, the adjudicator said this:
“I have taken into account the objective material on the risk of returnees to Angola. I note that the UNHCR considers that people cannot safely be returned to the Appellant’s home area of Cabinda. However there is no objective evidence before me as to why the Appellant should not return to another area of Angola when she is of age.”
That reference to the views of the UNHCR is a reference to a letter dated 1 June 2004 from a Government representative. It in fact related to a different asylum seeker. It contained the following statement:
“As you are aware from UNHCR’s paper on Angola, UNHCR position on return of rejected asylum seekers to Angola January 2004, clearly states that UNHCR is not permitting return to Cabinda province and continues to advise against any involuntary return of rejected asylum seekers to that province at this time. Armed conflict there continues between FLEC and FAC and the Angolan armed forces and both groups have allegedly committed abuses against civilians in Cabinda.”
On that basis the adjudicator accepted that the Appellant could not be returned to Cabinda. That was not challenged by the Home Secretary. However, the question of return to another part of Angola remained a live issue.[8]At this point it is necessary to turn to the IAT’s decision. The IAT accepted that there was an error of law in the adjudicator’s decision in that she had looked at the matter, not at the time of consideration, but at the future time when the applicant would be of age. It is unnecessary for me to consider whether that was indeed an error of law, because it was not a matter which has taken up time in this court. Having taken this view, the IAT felt it necessary to look at the question of return to Angola in rather more detail. Reference was made to the UNHCR letter and the other material. They commented:
“9. … The Appellant’s inability to return to Cabinda was not challenged on the grounds of appeal or in the submissions before us. We therefore consider the Appellant’s return to Luanda on the profile as found by the adjudicator. “10. The Appellant would be returning to Angola, [but] unlike the Appellant in FP without any political profile. There was no evidence presented that her father was such high profile as to be of interest to the authorities or that the authorities were actively seeking members of the Appellant’s family. The passages drawn to our attention by Mr Bild [for the applicant] highlighted human rights abuses in Cabinda but did not detail evidence of abuses against those originating from Cabinda living in Luanda or other parts of Angola. We are not satisfied on the evidence presented to us that the Appellant would face a real risk of persecution or serious ill- treatment on the basis of her Cabindan origins or her father’s involvement in politics in the Cabinda region. “11. The Appellant will be returning to Angola as a single female with two young children. We recognise that the humanitarian condition in Angola is still generally poor compared for example to standards in the west. However, that is not the test. As was noted in the case of FP (Angola) and as we also noted here the UNHCR letter before us does not suggest that the return of people to Luanda would breach their Article 3 rights. As Mr Bild also accepted the situation is improving. Paragraph 6.2 of CIPU notes that there have been substantial improvements made in the country although human rights abuses do continue. Whilst the Constitution provides for various protections for women it is clear from the documentation that these protections, in the fields of employment and domestic violence, are not always respected. The conditions are poor nevertheless the Article 3 threshold is a high one. Nothing in the submissions of the parties or in the objective evidence drawn to our attention supported a conclusion that the difficulties that the Appellant would experience on return would reach the threshold for treatment to amount to persecution or breach of Article 3.”
[9]The two issues which have been raised on the appeal relate, first, to the conclusions of the adjudicator on the question whether she was a refugee at the time she left Angola and, secondly, the conclusions whether she could return, not to Cabinda, but to Luanda.[10]On the first issue Miss Whipple for the Secretary of State says that the issue was one of fact for the adjudicator and the conclusion discloses no error of law. That was the view which appealed to Buxton LJ when he refused leave. However there are two points on which I would, for my part, regard the adjudicator’s decision as open to criticism as a matter of law. The first relates to the burden of proof when dealing with the question of the father’s political views and the identity of the people who took the mother away. The background material which we have been shown indicates reasonably clearly that political activity in the Cabinda area is largely associated with the body known as FLEC (Frente de Libertação do Enclave de Cabinda). The background material contains considerable evidence about their activities and disputes with the security forces.[11]On the facts, which the adjudicator accepted, the father was involved with political activity and people came to the house for that purpose. One has to bear in mind that this was a girl, at the time, of 16 only, and that she has since lost her mother and her father in tragic circumstances, and also that she was not someone who apparently was closely involved in politics herself. It seems to me that the adjudicator in those circumstances should have looked at her evidence against the background material and formed a view whether his involvement with political activity was at least “reasonably likely” to have been with FLEC (that being the appropriate test). The statement that “she simply assumes that he might have been because he held political meetings in his house” is understandable taken in the abstract, but taken against the background of an area where as far as we know the great majority of political activity was that of FLEC, the natural inference, applying the reasonable likelihood test, is that her father was so involved. The adjudicator seems to have turned the burden of proof against her. Similarly in relation to the people who took her mother away, taken in the abstract, and in other circumstances, the fact that people come to the house with guns and not in uniform may not suggest that they are necessarily police. But, against the background of conditions in the Cabinda Province as they are known to have been, and the evidence of relations between FLEC and the government forces, there seems little reason not to accept the applicant’s assumption.[12]The second point is the question of whether the Appellant herself was at risk. The adjudicator said in paragraph 20 that, even if they were police:
“… they clearly thought the Appellant had no useful information to give them or they would have arrested her at the same time as her mother.”
There is no mention there of the statement, which I have quoted from the Appellant’s own witness statement, that she had been told that if the mother were not telling the truth they would come back and kill her and her daughter. That seems to me all too clear an indication that they were interested in the daughter in her own right. I find it difficult to see how one can infer from that that she was thought to have no useful information. They might well have taken the view that they would try to get what they could out of the mother, and, if they failed, come back to get the daughter. In any event, the failure to refer at all to that particular part of the Appellant’s evidence indicates a failure to take account of a material factor and was itself, in my view, an error of law.[13]I turn then to the question of relocation. Even if Mrs Rothwell succeeds on the first point it does not follow that her client is entitled to remain here, if she could relocate to another area of Angola, or unless to return her would infringe her Article 3 rights. On that point, as I have said the focus of attention was on the position in Luanda, it being accepted that she could not be returned to Cabinda because of the position taken by the UNHCR. One consequence of that was that the question of her status as someone threatened with return to Cabinda was not examined in any detail. Miss Whipple says that the only reason why she could not be returned to Cabinda was because of the general embargo on returning asylum seekers to that area because of the conditions in that area, and that this is not to be taken as implying that she would be at risk of persecution for a convention reason, the adjudicator having found that she did not have any information of a political nature in her own right. Of course that begs the question as to the correctness of the adjudicator’s conclusion on that issue. For the reasons I have already given I would not accept that premise.[14]That still leaves open the third issue which is whether there would be a viable option of returning her to another part of Angola, as was found by the adjudicator and the IAT. On this point, as has been seen, the IAT placed considerable reliance on the parallel with the case of FP (Angola) [2003] UK IAT 00204. I turn to briefly to look at that decision. It was a country guidance case under a tribunal presided over by the then president, Ousley J. It concerned an asylum seeker from Cabinda, but in rather different circumstances. He was a man of over 35 who had, admittedly, been directly involved in political activities there. The issue with which we are concerned is the tribunal’s treatment of the possibility of returning him to Luanda. As they said at paragraph 24, the background evidence showed that he was someone who would be identified as coming from Cabinda because of his ignorance of Portuguese. It would also have become evident that he had a political background. Abuse of those suspected of political support for the War of Independence Movement was very probable. They concluded in paragraph 27:
“Taking all those factors in the round, we consider that the enforcement of these particular removal directions would involve a breach of the Refugee Convention and of Article 3 ECHR. “We add that insofar as the decision in Monteiro is read as expressing the view that the general situation in Luanda means that to return non-Luandans would necessarily involve a breach of Article 3, we respectfully consider that that goes too far. Even if the situation is unchanged from April 2002, which would not fully reflect the encouraging political signs in the October 2002 assessment, the advice of the UNHCR is primary although not exclusively related to living conditions in Angola generally, the security and human rights position generally. Failed asylum seekers can be returned to Luanda if they came from there or have connections there. That is to avoid increasing internal displacement. The stay on the return of others to Luanda is to avoid increasing the already large number of returned and displaced persons there. This is to avoid worsening the position and to make it more manageable; as those displaced resettle, others can be returned. This UNHCR statement does not suggest that the return of people to Luanda would breach their Article 3 rights if they came from Luanda or had relatives there, and would only do so if they did not. We do not in general accept that to return someone to live in the conditions in Luanda, wretched though they are for many, which the Angolan Government is struggling to improve rather than deliberately imposing, would involve a breach by the United Kingdom of its Article 3 obligations.”
[15]I make two observations on that case. First, the facts were very different. It concerned an adult male who in normal circumstances could be expected to cope for himself in most conditions, but who was held to be at particular risk in Luanda because his Cabinda background would be apparent and because of the threat to people involved in politics. That is completely different case to the present, where the applicant may have a much less striking political involvement, but on the other hand is a great deal more vulnerable because of her position as a young single mother with two very small children, who would be coming to Luanda with no connections of any kind that we know of, and who has lost her mother and her father.[16]Secondly, Miss Whipple fairly makes the point that one needs to distinguish, rather more clearly than some of the cases do, between the questions raised by the Refugee Convention, including whether internal re-location is a possibility, and the issues raised by Article 3 of the Human Rights Convention, which may also include the question whether a possible Article 3 problem may be met by returning someone to a different part of the country. In this connection, she referred us to a very recent case of this court, VNM v Secretary of State [2006] EWCA Civ 47. I think she accepts that, on the very extreme and distressing facts of that case, the conclusion was not surprising, but she (gently) suggests that some of the reasoning should be treated with care. I do not think I need say any more about that, particularly as detailed questions about the internal relocation alternative are going to be considered by the House of Lords in a case which is pending before them at the moment.[17]Returning to this case, it seems to me that the IAT may have given too much attention to the parallel of the FP (Angola) case, without sufficient regard to the special circumstances of this particular applicant. In particular, they make no reference to the particular categories who were said not to be at risk on return, that is those who came from Luanda or who had relatives there. The applicant fell into neither category. Accordingly, that case is a doubtful basis for a decision that a young mother in this position could be returned safely, without breach of her Article 3 rights, to a place where she has no connection of any kind and where conditions are such as has been outlined in the background material. In any event, the question under the Refugee Convention would have been different: would it be “unduly harsh” for her to be expected to go to Luanda? That was never considered.[18]In conclusion, it seems to me that the adjudicator and the tribunal were in error in holding that the Appellant had not established her claim to refugee status at the time she left Cabinda; indeed, I would go so far as to say that, on the material which was accepted by the adjudicator, the only reasonable conclusion was that at that time she was a refugee under the Convention. The rest of the case proceeded on the wrong basis. The question whether she could be returned to Cabinda did not arise because it was accepted that she could not, and therefore the question of her refugee status at that point was not considered. It should, however, have been considered in the context of the suggestion that she be returned to Luanda. For that purpose, it would have become necessary to decide whether she was to be regarded as a refugee under the Convention or whether one was simply concerned with her Article 3 rights. Having made the error that I found at the first stage, that question was not properly addressed. For those reasons, I would respectfully allow this appeal and I would remit the matter to the IAT.

LORD JUSTICE JONATHAN PARKER: I agree.

LORD JUSTICE LAWS: I also agree.

Order

Application allowed.

Cited in 1 later judgment