H v Secretary of State for the Home Department [2006] EWCA Civ 803

Case No C5/2005/2027

[2006] EWCA Civ 803

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL[AIT No. HX/08997/2004]

Venue Royal Courts of Justice

Date Friday, 5 th May 2006

Strand

London, WC2

B E F O R E:

LORD JUSTICE BUXTON

LORD JUSTICE LONGMORE

LORD JUSTICE NEUBERGER

CLAIMANT/APPELLANT

- v -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

DEFENDANT/RESPONDENT

(DAR Transcript of

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MR M HENDERSON (instructed by Refugee Legal Centre, LONDON, E1 2DA) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

J U D G M E N T

Between

HAppellant

Secretary of State for the Home DepartmentRespondent

LORD JUSTICE BUXTON:

This

[1]is an appeal brought with permission of Laws LJ from a determination of Mr Frank Appleyard, Immigration Judge, on 6 July 2005. The applicant, appellant as he now is, Mr H, is a Syrian Kurd. It was disputed below whether he was stateless or was a citizen of the Republic of Syria. The respondent has not sought to pursue that point before us; I proceed on the basis that H is indeed a citizen of the State of Syria. He came to this country on 2 September 2002 and claimed asylum on that day. The reason why his immigration status is still in issue is that he has appeared before not one but two adjudicators, the decision of the first adjudicator, which was unfavourable to him, having been remitted to the Asylum and Immigration Tribunal, (then following the 2004 Act, to a single immigration judge) by the Immigration Appeal Tribunal.

[2]Put shortly, Mr H’s claim had three elements. The first, which at the trial was the main element, was that whilst in Syria he had been a supporter of, and involved with, and a relation of persons involved with, a political party which is a subject of persecution by the Syrian authorities. Without trespassing upon an issue that I shall have to deal with later, that is the Kurdish Popular Union Party (“KPUP”). He gave circumstantial evidence about events that have occurred in Syria including his home being raided by the authorities and the fact that he had to leave the country under compulsion. A good deal of evidence was before the tribunal as to the nature of the regime in Syria and it is accepted, at least for the purposes of this case, that if a person falls within a category that is regarded as hostile by the Syrian regime he is at risk of being treated in a way that infringes his rights under the Refugee Convention.

[3]The second element in Mr H’s case was that he had taken part in at least two demonstrations whilst in this country, one outside the Syrian Embassy and one outside the Italian Embassy, to express his disapproval and that of other of his fellow countrymen in this country of the way in which Kurds are treated in Syria. The demonstration outside the Italian Embassy took place there because at the time that country held the Presidency of the European Union, and Mr H’s case was that he and his fellow countrymen wished to engage the European Union in their support.

[4]The third element in his case was, putting it broadly, that he fell into a category that he would be likely to be persecuted in any event if he returned to Syria, because he had left that country unlawfully. I will take these matters in a different order from those just set out.

[5]The first issue is Mr H’s claim to be a refugee sur place in respect of his activities just summarised. It is not doubted that he had indeed taken part in the activities he listed, and it is not suggested that there is any element of insincerity in his asserted opposition to the Syrian regime. Before the adjudicator was an expert report by a Dr Alan George, who gives a detailed history of involvement with and knowledge of affairs in the Middle East, and more particularly in Syria. I do not need to set out Dr George’s qualifications because it has not been suggested, in this case, that he is not a person with specialist knowledge of Syria and able to report on it. His report is lengthy, and it was pointed out by Mr Beard for the Secretary of State that only a small part of it deals with the question of Mr H’s claim as a refugee sur place. As to that, Dr George first in his paragraph 33 referred to Mr H’s evidence as to his having taken part in the various demonstrations, and confirmed that the organisation that Mr H claimed to be associated with, the Western Kurdistan Association, is a bona fide lobby group known to Dr George. Dr George contacted that group, which confirmed, and as I say it is not doubted, that the demonstration to which Mr H referred did indeed take place.

[6]In his paragraph 34, which is important, Dr George then said this: “In my view, Mr H’s participation in these anti-regime demonstrations will very likely have come to the attention of the authorities. I say this because it is standard practice for the Syrian security authorities to film and photograph demonstrations and other manifestations of actual or perceived anti-regime sentiment. My grounds for stating this are the accounts of Syrian human rights and pro-democracy activists whom I have interviewed in the course of my career and also the testimonies of Syrian asylum applicants for whose cases I have prepared Expert Reports and who were deemed to be credible by the Courts. In this regard I would also refer to a report issued in January 2004 by the Canadian Section of Amnesty International. Entitled ‘Concerns Regarding Risk of Return to Syria’, this states that the task of ‘Syrian secret service agents working abroad is to monitor the Syrian community and opposition abroad”.

[7]He then points out that he has relied upon the Canadian section of Amnesty for another part of his report.

[8]The immigration judge dealt with this matter very shortly. He said this in paragraph 33:

“It is submitted on behalf of the Appellant that his claim also relates to his sur place activities. I have seen the photographs within his bundle and also the video evidence. [I interpose that, if it has not been made plain already, those are photographs of Mr H taking part in the demonstrations.] Dr George states at paragraph 34 of his report that these anti-regime demonstrations will very likely have come to the attention of the authorities because it is standard practice for the Syrian security authorities to film and photograph demonstrations and other manifestations of actual or perceived anti regime sentiments. However, I conclude that even if the Appellant has taken part in such demonstrations in London there is absolutely no evidence of a record being taken by the Syrian authorities in such a way that might endanger the Appellant if he were to be returned.”

[9]The criticism of that analysis by Mr Henderson on behalf of Mr H is two-fold. The first point is that the immigration judge did not engage properly with Dr George’s evidence. Dr George says that it is common practice to film and photograph demonstrations, and secondly also that the Syrian Secret Service authorities take an active interest in the activities of dissentient Syrians abroad. When the immigration judge said that there was no evidence of a record being taken by the Syrian authorities in such a way as might endanger the appellant, he appears to be saying two alternative things: first that he is sceptical that a record would be taken at all; or, second, that recording would not endanger the appellant because it would not come to the attention of the authorities in Syria who might use it against him as and when he returned there.

[10]That complaint goes to the second of the points, which is that the immigration judge did not in fact ask himself the correct question. The question for the immigration judge on the evidence, albeit sparse, before him was whether there was a real risk of Mr H, when he returned to Syria, being identified as somebody who had taken an anti-regime stance in this country. It is not sufficient to say that there is no evidence of a record being taken in this case. One would hardly expect that to be so. The question is whether the general activities and posture of the Syrian authorities create a risk that this man may be persecuted when he returns to Syria. The failure of the immigration judge to ask himself the correct question means that this part of his determination cannot stand. He did not properly address Dr George’s evidence and he did not give a clear or rational account of why it was that he did not accept the sur place claim. I would therefore allow the appeal on that point.

[11]Secondly, and relevant to Mr H’s activities within Syria, the immigration judge found, in conclusive terms it has to be said, that Mr H was not a witness of truth. He gave many examples of why he did not accept Mr H’s evidence. He thought that, so far as the dispute with regard to whether he was or was not a Syrian citizen was concerned, that matters had been adduced at a late stage in order to bolster Mr H’s claim; and he said in his paragraph 32 that, generally speaking, he found that Mr H had been vague throughout and had not given details of the matters that he asserted. These are formidable difficulties, and this court will only with great caution be persuaded to go behind the findings of an immigration judge. The difficulty in this case, however – and this is the issue upon which, and only upon which, Laws LJ, sitting as a single Lord Justice, gave permission – is that Dr George had also given evidence to the immigration judge as to general circumstances in Syria, some part of which was relevant to some of the issues upon which the judge did not believe Mr H. Although I accept Mr Beard’s submission that the immigration judge in his general introduction makes reference to Dr George, when he came to deal with the individual matters that I am about to address he did not refer at all to what Dr George told him.

[12]The three matters are as follows. First of all, without I hope needing to go into detail, the point was taken against Mr H that he did not know, or he was muddled about, the name of the party of which he claimed to be a member in Syria. That, of course, if it were the case, did very serious damage to his submissions. The judge said in paragraph 30, last sentence: “It is utterly incredible that someone with a claimed detailed knowledge of a party and its history would make such an error when interviewed regarding it”, the error being giving the wrong name.

[13]The problem with all this is that when this gentleman was originally interviewed, the interview was interpreted by a person speaking Arabic. The immigration judge understood, and I am bound to say from at least the account we have of the submissions he can be forgiven for thinking, that the appellant’s complaint was that Arabic was not the appropriate language for him to be interviewed in. That, if it were the only point, would clearly be unfounded for the reason that the immigration judge gives in his paragraph 30. However, the underlying point is not so much that point, but rather that there was simply a muddle or misunderstanding between the various people speaking different languages as to the appropriate name of the party of which Mr H claimed to be a member.

[14]Dr George gave some sort of evidence – I hope I am forgiven for putting it in those rather lukewarm terms – in his paragraph 40. He refers to Mr H’s explanation of this, as he says, muddle, and then says:

“There was nothing in his explanation that struck me as unusual or implausible.”

That, no doubt, was not very obviously a matter for him; but he went on to say:

“I would add that several of the various Kurdish parties in Syria have very similar names, often leading to confusion when these names are translated into Arabic or English”

. That observation was relevant to the matter that concerned the adjudicator, and whilst, if this were the only point of difficulty in the adjudicator’s determination, I would not regard it as offsetting everything else he said, nonetheless it is a point upon which, to put it at its lowest, his determination would have been more persuasive had he at least addressed the matter that had been put before him by Dr George, of the similarity of names between the various Kurdish parties.

[15]Secondly, in his paragraph 31 and at some length, the immigration judge expressed serious scepticism about the alleged raid on this gentleman’s flat in June 2002, pointing out that his case was that his brother had been arrested and detained in 1998. If it was indeed the case (as the immigration judge understood Mr H to say) that it was regular practice in Syria to detain and persecute relatives of those who had been arrested and detained, it was incredible that the premises were not raided until 1 June 2002. It was that which led the immigration judge to think that that claim was not true. As to that, and again in somewhat muted terms, Dr George says at paragraph 38 that it is not the case that the Syrian authorities invariably and immediately target persons who are related to those who have been arrested. Again, it was necessary, with that evidence before him, for the immigration judge at least to explain why he did not find that evidence relevant. He does not mention it at all. This point is of some importance because it is relevant to paragraph 31 of the immigration judge’s determination, which seeks to demonstrate inconsistency going so far as being evidence of mendacity on the part of the applicant, and when a logical argument of that sort is put forward in a credibility case it is necessary to be clear that all the premises of the argument have been properly examined. That did not happen in this case.

[16]Thirdly, the applicant produced letters from the authorities of the relevant political party, KPUP, in exile in the Czech Republic, which stated that he had been doing secret work as a party supporter. Of that the immigration

judge said in paragraph 32:

“The information contained in the letters from the KPUP appears to contradict the Appellant’s own evidence regarding his activities on behalf of the party. The letter dated 28 January 2003 refers to the Appellant’s duties ‘in secret work as a party supporter’. These letters stem from the Czech Republic and there is no evidence as to how enquiries may have been made within Syria regarding any activities carried out by the Appellant. I consider that they are self serving and I attach no weight to them.”

On that issue, the immigration adjudicator did have positive evidence from Dr George in which he points out that the author is indeed the head of the Kurdish Popular Union Party’s foreign organisation, and explains that the party is in exile, is banned in Syria, and is subject, as Dr George says, to constant repression.

[17]Mr Beard says that nonetheless, none of that touches the ground that the immigration adjudicator had for rejecting this evidence; that is to say that it gives no account of how matters have been investigated in Syria. In reply to that Mr Henderson made what, if I may say so, seemed to be a good point, that if the situation of this party is as Dr George says that it is, it is most unlikely that it would wish to be explicit about its activities within Syria. I found this aspect of the case difficult, but I have to say that on these three points the complete failure to engage with the evidence of Dr George means that what are not the only, but are certainly the important, issues in the finding of credibility have not been adequately addressed. That being so, I would allow the appeal on that ground also.

[18]The third point, as I have already said, relates to danger on return. The evidence of Dr George on this is not, I have to say, completely clear, but my view was that it was open to the adjudicator to find that there was no evidence sufficient for him to show that a person who had not been active within Syria would be in danger of persecution simply on the grounds that he was returning as a former asylum seeker. That is based upon the case in the tribunal of SY, to which the adjudicator referred in paragraph 34 of his determination, and says this:

“I do not find that this Appellant has left Syria without authorisation and therefore returning without documentation which would enable him to enter the country without question is a person who faces a real risk of persecution or breach of their human rights”

[19]On the findings of the adjudicator, I would therefore not grant permission to appeal on this ground. However, the findings of the adjudicator as to Mr H’s activities within Syria are now open to question in view of the fact that I grant permission to appeal on the second credibility issue. Should the tribunal that hears this matter be minded to take a different view of Mr H’s credibility from that which attracted Mr Appleyard, then the third point, turning as it does on the evidence before Mr Appleyard on the nature of Mr H’s activities within Syria, necessarily comes back into issue.

[20]I therefore see no alternative to ordering that this matter be remitted for re-hearing, and be remitted for re-hearing generally on the various matters that were ventilated before Mr Appleyard. Some observations were made to us about the possibility of adducing further evidence. I can well see that it might be beneficial if the tribunal who is going to hear this matter had more thorough evidence than Mr Appleyard had about the sur place issue, and more particularly about the attitude of the Syrian authorities. I would therefore, if my Lords are of the same view, give leave for evidence so limited to be adduced, if so advised, before the Asylum and Immigration Tribunal. Any further wish to improve the evidence otherwise than in that limited respect will have to be the subject of an application to the AIT. On that basis, therefore, I would allow the appeal and remit the matter to the Asylum and Immigration Tribunal.

LORD JUSTICE LONGMORE: I agree with my Lord for the reasons he has given and I also agree with his proposed disposition of the appeal.

LORD JUSTICE NEUBERGER: I also agree.

Order

Appeal allowed.