West Law Report

No humanitarian reason prevents removal

From The TimesJune 6, 2008

No humanitarian reason prevents removal
European Court of Human Rights
Published June 6, 2008
N v United Kingdom (Application No 26565/05)
Before J-P. Costa, President and Judges Sir Nicolas Bratza, P. Lorenzen, F. Tulkens, J. Casadevall, G. Bonello, I. Cabral Barreto, B. M. Zupancic, R. Maruste S. Botoucharova, S. Pavlovschi, J. Borrego Borrego, K. Hajiyev, L. Mijovic, D. Spielmann, R. Jaeger and M. Villiger Deputy Registrar M. O’Boyle
Judgment May 27, 2008

The removal of an alien suffering from a serious illness to a country where the facilities for treating that illness were inferior to those available in a state party to the European Convention on Human Rights might raise an issue under the Convention but only in a very exceptional case where humanitarian grounds against removal were compelling.

The Grand Chamber of the European Court of Human Rights held, by 14 votes to 3, that there would be no violation of article 3, prohibiting inhuman or degrading treatment, if the applicant, Ms N, were to be sent back to Uganda from the United Kingdom. The Grand Chamber also held, by 14 votes to 3, that no separate issue arose under article 8, guaranteeing the right to respect for private and family life.

Ms N was a Ugandan national, born in 1974 and lived in London. She had Aids. The case concerned her allegation that her return to Uganda would cause her suffering and lead to her early death because of her illness. She came to the United Kingdom on March 28, 1998, under an assumed name. She was seriously ill and was admitted to hospital. On March 31, 1998, solicitors lodged an asylum application on her behalf, claiming that she had been illtreated and raped by the National Resistance Movement in Uganda and was in fear of her life and safety if she were returned.

The Secretary of State for the Home Department refused her asylum claim on March 28, 2001, finding that her claims were not credible, that there was no evidence that the Ugandan authorities were interested in her, that treatment of Aids in Uganda was comparable to any other African country, and that all the major antiviral drugs were available in Uganda at highly subsidised prices. The applicant appealed.

On July 10, 2002, her appeal was dismissed concerning the asylum refusal, but allowed in relation to article 3. The Home Secretary appealed against the article 3 finding.

The Immigration Appeal Tribunal allowed the appeal on November 29, 2002. The applicant appealed unsuccessfully to the Court of Appeal (The Times October 23, 2003; [2004] 1 WLR 1182) and the House of Lords ( The Times May 9, 2005; [2005] 2 AC 296).

The application was lodged with the European Court of Human Rights on July 22, 2005.

I Alleged violation of article 3

The Court summarised its case-law concerning expulsion cases where the applicant claimed to be at risk of suffering a violation of article 3 on the ground of ill-health, noting that it had not found such a violation since D v United Kingdom (Application No 30240/96) ( The Times May 12, 1997; (1997) 24 EHRR 423)) where very exceptional circumstances and compelling humanitarian considerations were at stake.

The Court recalled that aliens who were subject to expulsion could not in principle claim any entitlement to remain in the territory of one of the states which had ratified the European Convention on Human Rights in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling state. The fact that the applicant’s circumstances, including her or his life expectancy, would be significantly reduced if s/he were to be removed from the Convention state was not sufficient in itself to give rise to breach of article 3.

The decision to remove an alien who was suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness were inferior to those available in the contracting state might raise an issue under article 3, but only in a very exceptional case, where the humanitarian grounds against the removal were compelling, such as in D.

Although many of the rights it contained had implications of a social or economic nature, the Convention was essentially directed at the protection of civil and political rights. Furthermore, inherent in the whole of the Convention was a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

Advances in medical science, together with social and economic differences between countries, meant that the level of treatment available in the contracting state and the country of origin might vary considerably. Article 3 did not place an obligation on the contracting state to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A contrary finding would place too great a burden on the state.

Finally, the Court observed that, although the applicant’s case concerned the expulsion of a person with an HIV and Aids-related condition, the same principles had to apply to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which might cause suffering, pain and reduced life expectancy and require specialised medical treatment which might not be so readily available in the applicant’s country of origin or which might be available only at substantial cost.

Although the applicant applied for, and was refused asylum in the United Kingdom, she did not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated ill-treatment. Her claim under article 3 was based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country.

The evidence before the national courts indicated that if the applicant were to be deprived of her current medication, her condition would rapidly deteriorate and she would suffer ill-heath, discomfort, pain and death within a few years. According to information collated by the World Health Organisation, antiretroviral medication was available in Uganda, although, through lack of resources, it was received by only half of those in need.

The applicant claimed that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she came. It appeared that she had family members in Uganda, although she claimed that they would not be willing or able to care for her if she were seriously ill.

The United Kingdom authorities had provided the applicant with medical and social assistance at public expense during the nine-year period it had taken for her asylum application and claims under articles 3 and 8 to be determined by the domestic courts and the European Court. However, that did not in itself entail a duty on the part of the United Kingdom to continue to provide for her.

The Court accepted that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. Currently, however, the applicant was not critically ill.

The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, involved a certain degree of speculation, particularly in view of the constantly evolving situation as to the treatment of HIV and Aids worldwide. Concluding that the applicant’s case did not disclose very exceptional circumstances, the Court found, with Judges Tulkens, Bonello and Spielmann dissenting, that her removal to Uganda would not violate article 3.

II Alleged violation of article 8

The Court held, with the same three judges dissenting, that it was not necessary to examine the complaint under article 8. Full text at http://www.echr.coe.int

AA (UGANDA) v HOME SECRETARY

Last Updated: 3:18PM BST 04/06/2008
Court of Appeal (Civil Division) Buxton, Carnwath and Lloyd LJJ May 22, 2008
Asylum and Immigration Tribunal – Asylum seekers – Error of law – Humanitarian Protection – Internal relocation – Misdirections on law – Prostitution – Uganda – Undue harshness of returning young woman to Kampala – Art. 3 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – Refugee or Person in Need of International Protection (Qualification) Regulations 2006

FACTS

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The appellant (X), a 22-year-old Ugandan, appealed against the Asylum and Immigration Tribunal’s decision that it would not be unduly harsh to return her to Kampala. X’s parents had both been killed in Uganda, and she went to live with a succession of family members who all treated her brutally. She came to live in the United Kingdom with an aunt, but the aunt’s husband raped her. She then attempted suicide, and was taken into the residential care of a project for vulnerable young people. X’s claim under the European Convention on Human Rights 1950 art. 3 and art. 8 was rejected. When it came before the AIT for reconsideration the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 had come into force, under which persons who did not qualify on other grounds should be granted humanitarian protection if they were in danger of suffering serious harm in their country of origin. Such a grant was not available if the person could avoid the serious harm by relocation to another part of his home country and could reasonably be expected to stay in that part of the country. An expert report before the AIT stated that X, who suffered from anxiety and depression, would be especially vulnerable, would be unable to find secure and decent housing, and would only be able to find employment as a sex worker. The AIT based its decision on, among other things, a finding that X would be able to turn to the church in Uganda for support.

ISSUE

Whether it would not be unduly harsh to return X to Kampala.

HELD (appeal allowed)

(1) The AIT’s conclusions about the role of the church were not based on relevant evidence and were perverse. There was no evidence from which the AIT could properly conclude that the church would make a difference to X’s life in Kampala that offset or protected her from the dangers described in the expert report.

(2) It was difficult or impossible to apply the jurisprudence of AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2007] 3 WLR 832 to the instant case. There, the conditions in the place of relocation involved poverty, disease, and the living of a life that was structured quite differently from the refugees’ previous way of life. On the evidence accepted by the AIT, X was faced not merely with poverty and lack of any sort of accommodation, but with being driven into prostitution. Even if that was the likely fate of many Ugandan women, it was not conceivable that either the AIT or the House of Lords in AH (Sudan) would have felt able to regard enforced prostitution as coming within the category of normal country conditions that the refugee must be expected to put up with. The instant case called for an enquiry as to whether conditions in Kampala were unacceptable to the extent that it would be unduly harsh to return X to them even if the conditions were widespread there. In not addressing that enquiry, the AIT had acted irrationally and its determination could not stand. It was clear that it would be unduly harsh to return X to Kampala.

(3) Even if it had been open to the AIT to hold that it would not be unduly harsh to return young women generally to Kampala, it was still necessary to consider whether X had characteristics that would render remission unduly harsh in her case. The AIT had erred in failing to address the question of whether X was as well able as most to bear conditions in Kampala, and had erred in applying the art. 3 standard in relation to all of the medical issues in the case, for the purposes of the art. 3 claim but also in relation to undue harshness. On the basis of the medical evidence, there was no doubt that X was manifestly less able than most to bear the conditions in Kampala.

(4) (Per Carnwath LJ) The observation in AS (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289, Times, April 16, 2008 that Baroness Hale’s guidance in AH (Sudan) about the “limited role of this court” extended to “decisions by a specialist tribunal on points of law” was troubling, to the extent that it implied that the House of Lords had modified the Court of Appeal’s established approach to correction of errors of law by lower courts or tribunals. R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, [2005] Imm AR 535 stated authoritatively that errors of law had to be “material” to justify intervention on appeal. If the court in AS (Libya) intended to suggest that the test of “materiality” in the formulation in R (Iran) was to be replaced by one which limited review to errors of law which were “quite clear”, then it was wrong to do so. It was doubtful that Baroness Hale so intended, and there was nothing in the speech of Lord Bingham, with whom all the members of the House agreed, which was inconsistent with the established principles, or indicative of a wish to change them.

Peter Morris (instructed by Kingston and Richmond Law Centre). Claire Weir (instructed by Treasury Solicitor) for the respondent.

Returning refugees to safe third country

From The TimesMay 20, 2008

Returning refugees to safe third country
Court of Appeal

Published May 20, 2008

Regina (Nasseri) v Secretary of State for the Home Department

Before Sir Anthony Clarke Master of the Rolls, Lord Justice Laws and Lord Justice Carnwath Judgment May 14, 2008

A provision which prevented the Secretary of State for the Home Department from considering whether certain listed countries would return asylum seekers in violation of their human rights did not enact an absolute bar, but was limited in scope.

It did not preclude a general consideration of whether a listed state’s laws and practices complied with the right not to be subjected to torture or ill treatment contrary to article 3 of the European Convention on Human Rights and therefore was not incompatible with article 3.

The Court of Appeal so held, allowing the appeal of the Home Secretary from Mr Justice McCombe (The Times August 3, 2007; [2008] 2 WLR 523) who had made a declaration that the deeming provision in Schedule 3 Part 2 paragraph 3(2) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was incompatible with the rights of the claimant, Javad Nasseri, under article 3. Mr Robert Jay, QC and Ms Lisa Giovanetti for the Home Secretary; Mr Andrew Nicol, QC and Mr Mark Henderson for the claimant.

LORD JUSTICE LAWS said that Schedule 3 Part 2 paragraph 3(2) of the 2004 Act applied in every case where the Home Secretary proposed to return an asylum or human rights claimant to any one of 28 states listed in Schedule 3 Part 2 paragraph 2 on the basis that that state was a third country responsible for determining the merits of the claimant’s asylum or human rights claim. The Home Secretary was empowered to add states to the list but not to delete any state from it.

The claimant, a national of Afghanistan, made an asylum claim in Greece. That was refused. He left Greece and entered the United Kingdom unlawfully. When his presence was discovered he claimed asylum.

The Home Secretary declined to deal with the substance of the claim and set directions for his removal to Greece pursuant to Council Regulation (EC) No 343/2003, the Dublin II Regulations, (OJ 2003 L50/1). Those regulations essentially preserved the rule that an asylum claim would be substantively decided by the first Convention state where the claimant arrived.

The claimant resisted removal to Greece because of a claimed fear that the Greek authorities would return him to Afghanistan without properly considering his asylum and human rights case, and he would be ill treated there. That was not accepted by the secretary of state.

Violations of article 3 could extend to cases where a person was sent to a state which might remove him to a third state where he could face such a risk: see R (Yogathas) v Secretary of State for the Home Department (The Times October 18, 2002; [2003] 1 AC 920).

There was no free-standing duty to investigate the risk of loss of life or torture, but in order for a state to avoid a breach of article 3 by removing a person to another territory where he might be ill treated or whence he might be sent elsewhere and ill treated there, the authorities of the first state clearly had to apprise themselves of the relevant law and practice of the place to which removal would be effected. Otherwise they could not know whether or not their actions would violate article 3.

That was a necessary incident of the substantive obligation to fulfil article 3, underlined by the need for rigorous scrutiny of an individual’s claim that removal would expose him to article 3 treatment.

The opening words of Schedule 3 Part 2 paragraph 3(1) limited the application of paragraph 3(2) to the actual process of an executive or judicial determination of whether a person’s removal would contravene the relevant rights.

Consideration of such a question or, more generally, of a listed state’s laws and practices for the purpose of forming a view as to whether a state should remain on the list, the secretary of state’s function, or deciding whether a declaration of incompatibility should be made vis-à-vis any particular state, the court’s function, was not precluded or inhibited in any way. That result flowed from the language of the statute.

Given that the secretary of state was obliged to monitor the states on the list to ensure individual compliance, and the court was entitled, on an application for a declaration of incompatibility, to investigate by evidence whether any particular state infringed article 3 in a specific case or generally, the list system was not incompatible with article 3.

There were currently no removals from Greece to Afghanistan, and no reports of unlawful refoulement to any destination. That was critical. On the evidence the presence of Greece on the list did not offend the United Kingdom’s Convention obligations. It followed that there was no case for a limited declaration of incompatibility relating only to Greece.

The list system rendered the United Kingdom’s compliance with article 3 of the Convention fragile. In the absence of individual examinations of the merits of individual cases by those responsible for specific executive and judicial decisions in those cases, the whole weight of compliance fell on the measures and systems in place for monitoring law and practice in the listed states, and did so in circumstances where government had no discretion to take a state off the list but had to seek main legislation. Those measures and systems would need to be muscular.

The Master of the Rolls and Lord Justice Carnwath agreed.

Solicitors: Treasury Solicitor; Ms Sonal Ghelani, Aldgate.

HOME SECRETARY v E & ANR

Last Updated: 1:26AM BST 07/06/2007
Court of Appeal (Civil Division)
Pill, Wall and Maurice Kay LJJ
May 17, 2007

May 17, 2007 Conditions precedent – Non-derogating control orders – Prosecutions – Restrictions – Right to liberty and security – Impact of control order on rights under Art. 5 European Convention on Human Rights 1950 – Secretary of state’s continuing duty to review prospects of prosecution – Art. 5 European Convention on Human Rights 1950 – Art. 3 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 8(2) Prevention of Terrorism Act 2005
FACTS

The appellant (P) appealed against a decision ([2006] EWHC 1226, [2006] Ch 549) that highly objectionable images of children recovered from his computer following the execution of a search order made in intellectual property proceedings should be disclosed to the police. P had permitted the search of his premises to take place, but asserted that he would rely on his privilege against self-incrimination in respect of any material that the search might disclose. An employee of the company responsible for “imaging” the computer had discovered the offending material and applied to the court for directions. The judge below proceeded on the basis that, by reason of Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, before the Human Rights Act 1998, the privilege against self-incrimination would have applied to permit a defendant in civil proceedings not only to refuse to answer questions or produce documents by way of discovery, but also to refuse to produce any incriminating article found in the course of a search of premises pursuant to a court order.

The judge held that since the 1998 Act and by reason of the decision in Saunders v United Kingdom (19187/91) [1997] BCC 872, the privilege did not apply in criminal proceedings in relation to pre-existing or “independent” evidence. Accordingly, the judge held that, since it was illogical for the privilege to be wider in civil proceedings than in criminal proceedings, the court could modify the common law doctrine as laid down in Rank and could rely on the partial exception to the doctrine of precedent set out in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465. The issue for determination was whether P could invoke the privilege to prevent disclosure of the material to the police. P submitted that it was not permissible for the court to use the 1998 Act when no human rights were engaged in order to justify departing from the law laid down by precedent. The Attorney General, intervening, submitted that, whilst the judge had ultimately made the right decision, there was never any difference between the civil law and the criminal law, and the rationale for the privilege had no application to independent evidence.

ISSUE

(i) Whether the restrictions in the control order did not constitute a breach of Art. 5. (ii) Whether the judge had been wrong to find that he had breached his duty to consider and review the prospects of prosecuting E.

HELD (appeal allowed)

(i) The degree of physical restraint on E’s liberty was far from a deprivation of liberty in terms of Art. 5, Guzzardi v Italy (A/39) [1981] 3 EHRR 333, Engel v Netherlands (A/22) (1979-80) 1 EHRR 647 and Trijonis v Lithuania (Admissibility) (2333/02) considered. E lived in his own home with his family, and was able to leave his home for 12 hours a day with no geographical restriction on where he could go. E had ample opportunity to engage in everyday activities and make a wide range of social contacts, Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141, [2006] 3 WLR 866 distinguished. While the state of a controlled person’s health, and possibly other “person-specific” characteristics, might have an impact on the severity of the effect of the restrictions imposed, the judge below was correct in finding that, in the instant case, only very limited weight could be given to that factor. The judge had been right to conclude that the control order was likely to be renewed on expiry of the relevant 12-month period and to consider the restrictions on that basis. The judge had not erred in considering matters relevant to arguments under Art. 3 and Art. 8 in his consideration of Art. 5.

(ii) When properly considered in its statutory context, the duty under s. 8(2) of the 2005 Act to consider and review the possibility of prosecution was not a condition precedent to the making or renewal of a control order. The judge below had been right to find that the secretary of state had breached his duty to keep the possibility of prosecuting E under review. It was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution. The duty extended to a duty to take reasonable steps to ensure that the prosecuting authorities were keeping the prospects of prosecution under review; it did not extend to the secretary of state becoming the prosecuting authority. The secretary of state had breached his continuing duty of review by omitting to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration, Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, [2006] 3 WLR 839 applied.

(iii) The judge had erred in describing the Belgian judgments as “evidence” giving rise to a realistic possibility of prosecution. He had erred in law in holding that the secretary of state’s breach justified the quashing of the control order, and ought instead to have further analysed the consequences of the breach.

R Tam QC and A O’Connor (instructed by the Treasury Solicitor) for the appellant. K Starmer QC and H Southey (instructed by Birnberg Pierce & Partners) for the respondents. A McCullough (instructed by Special Advocate Support Office) for Special Advocate.

No breach of rights in expulsion to Uganda

European Court of Human Rights

Published April 23, 2008

Nnyanzi v United Kingdom (Application No 21878/06)

Before L. Garlicki, President and Judges Sir Nicolas Bratza, S. Pavlovschi, L. Mijovic, D. Thór Björgvinsson, J. Šikuta and P. Hirvelä Section Registrar L.

Early Judgment April 8, 2008

There was no reason to belive that an applicant who unsuccessfully sought asylum, on the basis of her father’s political activities in Uganda, would be ill treated on her expulsion to that state.

The European Court of Human Rights held, unanimously, that the rejection of the applicant’s asylum application and the ensuing decision to remove her to Uganda would not give rise to a violation of article 3, prohibiting inhuman or degrading treatment, article 5, protecting the right to liberty, or article 8, guaranteeing the right to private and family life, of the European Convention on Human Rights.

The applicant, Evarista Evelyn Nnyanzi, a Ugandan national, was born in 1965 and lived in London. She was the daughter of Evaristo Nnyanzi, a former Ugandan government minister from 1985-1986 and Treasurer-General of the Democratic Party. He was charged with treason in 1998. Her mother and younger siblings lived in Kenya.

In its judgment, the Court held:

I Alleged violation of article 3

The Court noted that the most severe form of persecution that the applicant experienced in Uganda before coming to the United Kingdom in 1998 was an arrest and one-day detention and questioning in 1987.

After examining the individual circumstances of the applicant in the light of the current general situation in Uganda, the Court found, unanimously, that no substantial grounds had been established for believing that she would be exposed to a real risk of torture or inhuman or degrading treatment within the meaning of article 3 if expelled.

Accordingly, her expulsion to Uganda would not be in violation of article 3.

II Alleged violation of article 5

In the light of its conclusions on the applicant’s article 3 complaint, the Court held, unanimously, that no separate issue arose under article 5.

III Alleged violation of article 8

Her proposed removal to Uganda was in accordance with the law and motivated by a legitimate aim, namely the maintenance and enforcement of immigration control.

As to the necessity of the interference, the Court found that any private life that the applicant had established during her stay in the United Kingdom when balanced against the legitimate public interest in effective immigration control would not render her removal a disproportionate interference.

Accordingly, the Court was of the unanimous view that the applicant’s removal to Uganda would not give rise to a violation of article 8.

AS (LIBYA) & ANR v HOME SECRETARY & ANR

Posted in Art. 3 European Convention on Human Rights, Torture, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 4:13 PM BST 29/04/2008
Court of Appeal (Civil Division)

Sir Anthony Clarke MR, Buxton and Smith LJJ

April 9, 2008

Deportation – Inhuman or degrading treatment or punishment – Libya – Memorandums of understanding – National security – Torture – Art. 3 European Convention on Human Rights 1950

FACTS

The appellant secretary of state appealed against a decision allowing the appeals of the respondent Libyan nationals against deportation. Both respondents had been served with a deportation order on the grounds that their presence in the United Kingdom was not conducive to the public good because they were a danger to national security. Their appeals against deportation were allowed by the Special Immigration Appeals Commission on the basis that there were substantial grounds for believing that the respondents faced a real risk of suffering ill-treatment contrary to the European Convention on Human Rights 1950, art. 3, if they were returned.

A memorandum of understanding had been entered into between the UK and Libya that provided the UK with assurances that anyone deported from Libya would be properly treated. It was accepted by the secretary of state that, in the absence of the memorandum, there would be substantial grounds for believing that there was a risk of the respondents being tortured on their return. It was accepted on behalf of the respondents that if Libya complied with the memorandum there was no such risk. The commission found that Libya’s motivation and reasoning might change and that it might not honour the memorandum.

The secretary of state submitted that the commission (1) failed to direct itself as to the correct test to measure the degree of risk that the respondents would suffer ill-treatment contrary to art. 3 on return by repeatedly stating that the question was whether there was a real risk of the respondents suffering torture contrary to art. 3 on return, rather than asking itself whether there were substantial grounds for believing that the respondents would face such a real risk; (2) failed to give sufficient weight to the evidence of an expert diplomatic witness (L) and/or wrongly substituted its own assessment for L’s and/or failed to give sufficient reasons for rejecting his evidence; (3) erred in lowering the test for risk on return to take account of the unpredictability of future events in Libya; (4) had come to the conclusion that there were substantial grounds for believing that the respondents faced a real risk of suffering ill-treatment contrary to art. 3 based on findings of fact that did not warrant or support that conclusion.

ISSUES

(1) Whether the commission failed to direct itself as to the correct test to measure the degree of risk that the respondents would suffer ill-treatment contrary to art. 3 on return.

(2) Whether the commission failed to give sufficient weight to the evidence of an expert diplomatic witness.

(3) Whether the commission erred in lowering the test for risk on return to take account of the unpredictability of future events in Libya.

(4) Whether the commission had come to the conclusion that there were substantial grounds for believing that the respondents faced a real risk of suffering ill-treatment contrary to art. 3 based on findings of fact that did not warrant or support that conclusion.

HELD (appeal dismissed)

(1) The submission that the commission misstated the relevant test involved the assertion that it had made an inexplicable error. The correct approach was to consider the judgment of the commission as a whole and to only hold that it had erred in law if it was quite clear that it had done so, AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2007] 3 WLR 832 applied. It was common ground that the correct test was whether substantial grounds were shown for believing that the respondents would face a real risk of suffering ill-treatment contrary to art. 3 of the Convention on return to Libya and that meant no more than that there must be a proper evidential basis for concluding that there was such a real risk, Saadi v United Kingdom (13229/03) Times, February 4, 2008 ECHR (Grand Chamber) applied. A considerable amount of evidence was put before the commission, which considered it with care and, on the basis of it, concluded that there would be a real risk of torture. The commission had applied the correct test. As to the formulation of the test, it would be very surprising indeed if the commission misunderstood or misstated it. If the commission was mistaken in the instant case, it was precisely the kind of egregious and inexplicable error that was referred to in AH (Sudan). It was inconceivable that it made such a mistake. The commission had not made an elementary error and had not misstated or misapplied the test.

(2) The commission had not failed to have proper regard to L’s evidence. The commission fully described L’s experience and expertise and approached his evidence entirely properly and appropriately. Although it relied heavily on his evidence it had not accepted L’s evidence that a breach of the memorandum would be almost unthinkable. It was clear that when the commission’s reasoning was taken as a whole it had due regard to the strong views expressed by L.

(3) The commission had not lowered the test to take account of the unpredictability of the future. It understood that the risk of ill-treatment was contingent on other events occurring but that would often be the case. The commission fully understood and applied the correct test.

(4) There was no basis for holding that the findings of fact, namely that there were substantial grounds for believing that there was a real risk of torture, despite the terms of the memorandum, were not capable of satisfying the test or were otherwise irrational.

Philip Sales QC, Robin Tam QC, Tim Eicke and Andrew O’Connor (instructed by Treasury Solicitor) for the appellant. Edward Fitzgerald QC, Raza Husain, Danny Friedman, Hugh Southey (instructed by Birnberg Peirce & Partners) for the respondents. Michael Fordham QC and Tom Hickman (instructed by in-house solicitor) for the intervener. N Garnham QC and J Farbey (instructed by Special Advocates’ Office) as the Special Advocates for the first respondent. A Nicol QC and J Farbey (instructed by Special Advocate’s Office) as the Special Advocates for the second respondent.

MA (PALESTINIAN TERRITORIES) v HOME SECRETARY

Last updated: 4:13 PM BST 29/04/2008
Court of Appeal (Civil Division)

Maurice Kay, Lawrence Collins LJJ and Sir William Aldous

April 9, 2008

Appeals – Asylum seekers – Inhuman or degrading treatment or punishment – Palestine – Persecution – Statelessness – Denial of re-entry to a stateless person – Palestinians – Art. 3 European Convention on Human Rights 1950 – Convention relating to the status of refugees

FACTS

The appellant asylum seeker (M) appealed against a decision of the Asylum and Immigration Tribunal upholding the respondent secretary of state’s refusal of his asylum and human rights claim. M, a Palestinian Arab from the West Bank, had entered the United Kingdom and claimed asylum on the basis that he would be persecuted if returned. The secretary of state refused his application on asylum and human rights grounds and he appealed. The adjudicator dismissed his asylum appeal but allowed the human rights appeal. The adjudicator held that whilst on return M would be subjected to controls and restrictions by the Israelis that treatment was not such that it could amount to persecution but would amount to degrading treatment for the purpose of European Convention on Human Rights 1950 art. 3. The secretary of state appealed and the AIT concluded that the adjudicator’s determination contained an error of law in that, if restrictions on M engaged art. 3 of the Convention M was also at risk of persecution. The matter was referred for a second-stage reconsideration where the AIT dismissed M’s appeal and held that, as a Palestinian being forcibly returned from abroad, M would not be allowed to re-enter the West Bank but would have to turn back to Jordan, and he would not be persecuted. M contended that (1) the secretary of state’s grounds of appeal had not contained an arguable error of law on the part of the adjudicator; (2) the AIT at the first-stage reconsideration had not found a material error of law, only an arguable one; (3) the AIT’s finding that the denial of re-entry to M as a stateless person would not amount to persecution was erroneous.

ISSUES

(1) Whether the secretary of state’s grounds of appeal had not contained an arguable error of law on the part of the adjudicator.

(2) Whether the AIT at the first-stage reconsideration had not found a material error of law, only an arguable one.

(3) Whether the AIT’s finding that the denial of re-entry to M as a stateless person would not amount to persecution was erroneous.

HELD (appeal dismissed)

(1) Whilst a point of law had to be apparent on the face of the grounds of appeal a stringent process of construing the document would be inappropriate, Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481 applied. What was required was a fair and reasonable examination of the grounds of appeal to ascertain whether a point of law was identifiable. The grounds of appeal, fairly and reasonably construed, disclosed a perversity challenge to the adjudicator’s decision.

(2) Read as a whole the reasoning of the AIT at the first-stage reconsideration amounted to a finding of an actual and not just an arguable error of law. There was a logical inconsistency between the findings of the adjudicator on degrading treatment and his findings on persecution, torture and inhuman treatment, notwithstanding that the threshold test of the requisite level of severity was the same in each case.

(3) At the second-stage reconsideration the AIT had not erred in holding that the denial of re-entry to a stateless person was not, in itself, persecutory under the Convention relating to the Status of Refugees 1951 (United Nations). It was not persecutory to deny a stateless person re-entry to the country of his former habitual residence. There was a fundamental distinction between nationals and stateless persons and the denial did not interfere with a stateless person’s rights in the way it did with the rights of a national, AK v Secretary of State for the Home Department [2006] EWCA Civ 1117, [2007] Imm AR 81 considered.

Jane Collier (instructed by Refugee Legal Centre) for the appellant. Jeremy Johnson (instructed by Treasury Solicitor) for the respondent.