US (Nepal) v Secretary of State for the Home Department [2009] EWCA Civ 208

Case No C5/2008/1090[2009] EWCA Civ 208
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No IA/13308/2007]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 27 th January 2009
Before
LORD JUSTICE WARDLORD JUSTICE SCOTT BAKERLADY JUSTICE SMITH DBE
Between
US (NEPAL)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms K Cronin instructed by (Messrs Brion & Co) appeared for Appellant.Mr J Beer (instructed by Treasury Solicitors) appeared for Respondent.
Judgment
[1]This is an appeal from the decision of the Asylum and Immigration Tribunal on 28 March 2008 dismissing the appellant’s appeal against the decision of the Secretary of State for the Home Department, who refused her leave to remain in this country under the Domestic Workers’ concession. The decision appealed against was made by designated Immigration Judge Woodcraft, to whom I shall refer as the second Immigration Judge. His decision was a reconsideration because Immigration Judge Lawrence, who had allowed the appellant’s appeal on 10 October 2007, had, so it is said, made errors of law.[2]The material facts in outline are as follows. The appellant is a female citizen of Nepal. She arrived in the United Kingdom on 8 January 1996 on a three-month visa as an employee of Princess Norhayati of the Brunei royal family. The appellant claims to have escaped from the Princess’s house in or about March 1996. Leaving her employment at that time would have put her in breach of the condition of her visa.[3]On 17 March 1997 the appellant made a false claim for asylum, claiming that she would be persecuted in Nepal for her political beliefs if returned there.[4]On 5 November 1997 she was interviewed for the purposes of her asylum claim. On 11 May 2000 her asylum claim was refused. As was later conceded by her, her claim was entirely false and fabricated.[5]On 5 June 2000 she lodged an appeal against her asylum claim but this was withdrawn on 21 January 2004. In the meantime, going back to 23 July 1998, the immigration minister had announced, by a written answer in Parliament, that abused domestic workers, who brought their situation to the attention of the Home Office by 23 July 1999, would be given a concession. There were subsequent amendments to that concession on 12 August 1998 and 27 October 1998. The appellant claims that she was unaware of the concession until some years later when advised by fresh solicitors, but she says that she told immigration officials about her allegation of abuse when interviewed in respect of the asylum claim. There is, however, no record of this in the questions and answers. She says that it was a response that she gave to a subsequent question by the immigration officer, who asked her why she had left her employment.[6]On 3 November 2004 the appellant applied for leave to remain as a domestic worker. Her application was refused by letter of 21 November 2005. On 6 December 2005 she applied for leave to remain in the United Kingdom under the long residence provisions. This was refused on 3 October 2006. On 29 January 2007 she applied for leave to remain on the grounds of 1) the concession; 2) her length of residence in the United Kingdom; and 3) Article 8 of the European Convention on Human Rights. This application was refused by the Secretary of State on 2 August 2007, and this is the decision which underlies the present proceedings.[7]She appealed against the refusal and her appeal came on first before Immigration Judge Lawrence. He allowed her appeal on 10 October 2007 and, in summary, he held that at the time the Secretary of State made her decision she knew of the abuse suffered by the appellant as a domestic worker with the Brunei royal family and 1) that she ought to have considered the appellant’s case under the Domestic Workers’ policy concession; 2) that the appellant satisfied the requirements of the concession as she had been in continuous employment as a domestic worker since she arrived in the United Kingdom; and 3) that a minute from the Home Office, dated 6 October 2005, confirmed that the appellant had mentioned the alleged abuse in the course of her asylum interview. That minute stated:
“In the HO letter refusing her asylum application, it was pointed out that the allegations of abuse were only made along with her asylum claim a year after [the Appellant] left her employment with [the Princess]... …the completed IS76 SAG contains no new information other than the allegations of abuse suffered as a domestic which was covered during her asylum claim”
[8]The Secretary of State sought a reconsideration of Immigration Judge Lawrence’s decision on the ground that he had made the following material errors of law: 1) that the Secretary of State had indeed considered the appellant under the Domestic Workers’ concession and the Immigration Judge was in error in concluding that he had not; 2) he failed to give adequate reasons for accepting that the appellant met the requirement of the concession, having continued to be employed in the domestic category and/or he failed to conduct any assessment of the appellant’s claim that she was a victim of domestic violence. A reconsideration was ordered and the appeal went to a second-stage reconsideration, which, as I have said, was decided by the second Immigration Judge on 28 March 2008. He did not accept that the appellant had been abused by her employer. He held that she had not shown continuity of employment in a domestic capacity and had not told the Secretary of State for the Home Department about any abuse at an early stage.[9]There are essentially two limbs to the appeal. First, did Immigration Judge Lawrence make any material error, or errors, of law justifying reconsideration, and 2) if so, is the second Immigration Judge’s decision sustainable, or did he make any material error of law? As to whether Immigration Judge Lawrence made a material error, or errors, of law, I am satisfied that he did. In short, his fact-finding and reasoning were inadequate, and the only course was for the whole matter to be considered afresh. The whole focus of this appeal has been on the second Immigration Judge’s decision and whether he made a material error of law.[10]It is common ground that the second Immigration Judge did not have before him the December 2002 Immigration Directorate Instruction (“IDI”) which sets out the current policy with regard to abused Domestic Workers and overtakes the three versions of the earlier policy to which I have already referred. This policy, it is submitted, was more liberal than its predecessors in a number of respects. 1) It allowed applicants to make a claim outside the so-called regularisation period, ie after 23 October 1999. This was important to the appellant because she did not any longer have to show that she raised the question of abuse in her 1997 asylum interview. 2) The 1998 policy required the applicant to have been in full time domestic work immediately prior to the application, whereas the IDI policy said that for those applying after 23 October 1999 the Home Office can choose to regularise stay where Domestic Workers have continued to be employed in a domestic capacity. (It is submitted -- but I shall return to this in a moment -- that continuing current employment is required in a domestic capacity, but not continuous unbroken employment. This too helped, it is submitted, the appellant, who had no documentary evidence to prove employment between 1996 and November 1998 but had got a statement showing employment at the date of the application.) (3) The 1998 policy required evidence that the respondent had left her employer through abuse or exploitation. The IDI required that evidence should be produced that the individual had been in fear or suffered abuse. So this has been widened to cover not just abuse but also fear falling short of abuse.[11]There is no doubt that the IDI up-to-date version of the policy ought to have been followed. Neither the respondent making the decision nor the first or second Immigration Judge appears to have been aware of it. Neither the respondent nor the appellant’s advisers drew it to either Immigration Judge’s attention. Indeed, on the hearing before the second Immigration Judge, the appellant’s solicitors specifically submitted to him that the earlier concession was still what was relevant.[12]The appellant’s case is that the failure by the respondent and by each tribunal to consider and apply the correct policy was contrary to law, and the associated inconsistent treatment of the appellant’s claim resulted in an injustice which can and should be remedied by a remittal and a fresh hearing of the whole claim by a different immigration judge, but in my view the question this court has to consider first is whether the second Immigration Judge’s failure to apply the correct policy amounts to a material error of law. There is no dispute but that it is an error of law; he should have applied the right policy but it was not his fault, because the right policy was not drawn by either side to his attention.[13]This court has, in my judgment, to ask itself what would have been the result if the Immigration Judge had applied the correct policy. Would the difference between the policy that he did apply and the policy that he should have applied made any difference? The appellant’s problem is that the second Immigration Judge went into the appellant’s credibility with a great deal of care and in a great deal of detail. He noted that there was before him, among other things: 1) the record of her asylum interview on 5 November 2007; 2) an undated statement made by her after withdrawal of her asylum claim, probably in 2004; and 3) her witness statement of 13 September 2007. He examined with considerable care the inconsistencies and contradictions between these various statements and between these statements and her evidence on oath to him. He did so in paragraphs 18 to 50 of his redetermination. He then went on to compare the appellant’s evidence with that of Ms Limbu, who had also given evidence and who had been employed by the same employer. He said at paragraph 56 that he found neither the appellant nor Ms Limbu to be a credible witness. He said this at paragraph 58:
“I have set out above at some length the discrepancies which have arisen between the three written accounts and the oral testimony of the Appellant. She has lied to the Respondent and I find she has lied to me, about a claim for asylum, the alleged abuse by the Princess, the alleged escape from the Princess, the next employer/Mr Serif Khan, her movements after that and even her current work with Mr Vader who it is claimed, implausibly, employs both her and Ms Limbu. Ms Limbu has also been inconsistent in her evidence as I have set out above such that I can have no confidence in her evidence either.”
He then added that the appellant’s credibility was important because in order to come within the concession she had to show she had suffered domestic abuse, had reported it to the respondent within the time limits laid down and that the respondent had failed to consider the matter properly or at all. He found as a fact that she could not show any of these matters. He was, of course, referring to the 1998 concession and not the 2002 concession.[14]It is true that the 2002 concession covered leaving the employer through fear as an alternative to having suffered abuse, but the appellant’s case had been advanced throughout on the basis of actual abuse. It seems to me totally unrealistic to envisage that the second Immigration Judge, or another immigration judge reconsidering the matter afresh, might have come to a different conclusion if he was considering not abuse as such, but only fear of it. The appellant’s whole case was advanced on the basis not of fear but that she had suffered really serious abuse. It seems to me that for a separate case of fear to be advanced she would have to abandon her claim of having been abused, persuade the court that that was entirely false and raise an entirely separate claim on a much lesser basis. That, as I have said, is in my judgment completely unrealistic. This was a case of abuse or nothing.[15]The judge gave very compelling reasons why he disbelieved the appellant and could place no reliance on her evidence. Not only were there numerous inconsistencies to which I have referred; there was also the fact that she had, on her own admission, made a bogus claim for asylum. The second Immigration Judge rejected her evidence that she did so because she was acting under the influence of rogue solicitors. She withdrew her asylum application when she realised that the respondent had proof in the form of her passport that her claim was bogus. Further, the appellant alleged that the Princess who employed her had confiscated her passport. The appellant was unable to give any satisfactory explanation as to how it suddenly reappeared many years later.[16]The second Immigration

Judge said this, at paragraph 61:

“I do not accept that the Appellant was abused by her employer and escaped, (alternatively left secretly one night), [because she had advanced separate claims at different times] nor that she told the Respondent about any of this at an early stage”
And a little later:
“I find the Respondent has correctly applied the concession in this case, that is that the Appellant does not come within it because no abuse occurred and no mention of such abuse was made within the time limits. Thus even if the Appellant could show that the abuse occurred, she would still not come within the terms of the concession because her claim was made too late.”
[17]There was, as is apparent, an issue before the second Immigration Judge about when the appellant first referred to abuse by her employers. The appellant claims to have mentioned abuse at the time of her asylum claim. The first Immigration Judge said, at page 50 in paragraph 4.1 of his findings:
“…the appellant provided a statement. In this statement she gives an account of her abuse and violence at the hands of her original employer namely the Brunei royal family. She attended an asylum interview on 5th November 1997. These events pre-date the date the aforementioned policy was published.”
That, of course, was the original Domestic Workers’ concession announced in Parliament on 23 July 1998. There is no mention of the domestic abuse in the asylum interview, but the appellant says that after the interview was over the immigration officer asked her why she had run away from the Princess, and she says she told him she had been abused and assaulted. In her statement she said at page 61, “after the interview was over the immigration officer asked why I had run away from the Princess. I told him that I had been abused and assaulted there”. Later a Home Office minute turned up dated 6 October 2005. This minute records, as I have already mentioned:
“In the HO letter refusing her asylum application, it was pointed out that the allegations of abuse were only made along with her asylum claim a year after she left her employment with the [Princess of Brunei]”
A little later:
“IS76 SAG contains no new information other than the allegations of abuse suffered as a domestic which was covered during her asylum claim”
[18]The Home Office letter refusing the asylum claim upon which this minute appears to rely, dated 11 May 2000, does not say this, and therefore it appears that the author of the minute was writing under a misapprehension. The second Immigration Judge deals with this at paragraphs 47 and 48. He concludes that it is not established and that the Home Office knew of the alleged abuse before 23 July 1999, which is the end of the twelve-month period of the first domestic abuse concession. Nobody has been able to provide any statement of the nature referred to by the first Immigration Judge in support of the asylum claim, the evidence appearing to show that no such statement was provided.[19]It seems to me that in this matter the second Immigration Judge’s finding is sustainable, which has this relevance and this relevance only. It simply shows that it was not just a year but a significantly longer time than that before any suggestion is made to anybody else by the appellant that she was indeed abused whilst she was working for the Princess.[20]Ms Cronin, who has appeared for the appellant and argued her appeal with great vigour, submits that it is of importance that the appellant is not the only person who left the employment of the Princess. There were some nine others. The evidence shows that one of those nine others -- Ms Limbu -- made an application under the Domestic Workers’ concession, and that, despite some doubts being expressed about her credibility by the Immigration Judge and the matter being appealed by the Secretary of State, her claim was eventually conceded.[21]The difficulty for Ms Cronin is that Ms Limbu gave evidence before the second Immigration Judge, was examined and cross-examined, and the second Immigration Judge did not believe her evidence any more than he believed the evidence of the appellant. As to the other eight employees, there is simply no evidence of what happened to them; no evidence that they did or did not make any claim themselves; and, for my part, I cannot see that this advances Ms Cronin’s argument at all. The real thrust of her submission, it seems to me, comes to this. The second Immigration Judge, when he considered the reconsideration, was aiming at the wrong target, because he was looking at the out-of-date original Domestic Workers’ concession, when what he should have been looking at was the document that we find at page 80 of the bundle, the Immigration Directorate Instructions of December 2002, which were more helpful to the appellant and others in the material respects, or possibly material respects, to which I have already referred.[22]Ms Cronin argues that in these circumstances the whole decision of the second Immigration Judge, quite without his fault, is tainted, because he was looking at matters that were not relevant matters to consider. But it seems to me that in the passages from his decision to which I have referred he made very strong findings indeed about the appellant’s credibility, and the most important of those findings is that she was not abused during the course of her employment with the Princess, and it seems to me that he would have come to exactly the same conclusion on that if he had been considering the relevant concession. It would only be if the error of law that he made was such as arguably (and I put it no higher than that) to upset the important credibility finding that it would in my judgment be a material error of law that the second Immigration Judge made and that in those circumstances it would be necessary for the case to be remitted for a fresh hearing.[23]Mr Beer, who has appeared on this appeal for the respondent, concedes that there has been an error of law but submits that it is not material for two reasons. First, he submits that both policies contained a requirement of abuse and that fear is inextricably linked with what in fact occurred. He submits, as I accept, that the second Immigration Judge‘s finding about abuse not having occurred is unassailable.[24]His second submission is that the appropriate policy -- that is, the policy in IDI at December 2002, at page 80 in the bundle -- contains a requirement of continuity of employment in a domestic capacity with which the appellant is in any event, and was at the hearing, unable to comply. In that regard, he drew the court’s attention to a number of documents and submitted that when they are looked at as a whole they plainly illustrate no continuity of employment. The first is page 11 of the court bundle, where the grounds of appeal to this court refer to continuous domestic employment from November 1998. The second document is at page 25 in the same bundle at paragraph 11, which is the outline submissions of the appellant:
“The Appellant managed to find alternative domestic employment soon after. But this too turned out to be with an abusive employer and by February 1997 she had left and returned to live with her friend Ms Limbu.”
The third document is her interview at page 119, when she was asked how she was supporting herself and she replied [this is the asylum interview]:
“My friends are supporting me”
. Then, point number 4 at page 27 in the court bundle, paragraph 17(iii), she admitted that she was not at work, and finally, at 5 in her statement of 13 November 2007, in, I think, paragraphs 11-16, she describes her work history, which illustrates a gap between February 1997 and November 1998.[25]For my part I am unable to accept without further argument that Mr Beer’s construction of the IDI of December 2002 is necessarily correct. His submission is that what is required is unbroken continuity of employment as a domestic. Ms Cronin submits that what is required emphasises the domestic nature of the employment, but there is no requirement for it to be unbroken. What is necessary is that the appellant at the material time of the application is employed as a domestic in a private household.[26]I can see formidable arguments both ways as to the true construction of the IDI, but it is unnecessary to resolve this question in the present hearing if my Lords take the view, as I do, that the second Immigration Judge’s finding about the lack of abuse is unassailable. I would prefer to leave the point open to be resolved after further argument in another case.[27]For these reasons I have come to the conclusion that, although there was an error of law on the part of the second Immigration Judge, it was not a material error and I would therefore dismiss this appeal.[28]I agree.[29]So do I.

Order

Appeal dismissed

Cited in 1 later judgment