C/2000/6288
Neutral Citation Number: [2000] EWCA Civ 385
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
The Royal Courts of Justice
The Strand
London WC2A

Wednesday 18 October 2000
Before:

LORD JUSTICE SIMON BROWN

LORD JUSTICE RIX

LADY JUSTICE ARDEN

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THE QUEEN

upon the application of

BEATRICE TIENTCHU
Appellant
‑v‑

THE IMMIGRATION APPEAL TRIBUNAL
Respondent
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Tel:  020 7421 4040
Official Shorthandwriters to the Court
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MR D JONES (instructed by Gill & Co, 37 Gray's Inn Road, London WC1X) appeared on behalf of the Appellant
MR K QURESHI (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
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JUDGMENT
Wednesday 18th October 2000 
1.	LADY JUSTICE ARDEN: This is an appeal with permission granted by this court against the order of Jackson J dated 28 February 2000, whereby he refused permission to apply for judicial review of the decision of the Immigration Appeal Tribunal dated 20 July 2000, in turn refusing leave to appeal against the decision of the special adjudicator, Mr Walters, dated 25 June 1999. On this appeal Mr Jones, who appeared below, has appeared for the appellant and Mr Qureshi, who did not appear below, appeared for the respondent.
2.	The appellant arrived in the United Kingdom on 22 October 1996 from Cameroon and claimed asylum. She was interviewed. On 10th August 1998 the Secretary of State for the Home Department refused her application for asylum. The Secretary of State set out the facts concerning her membership of the Social Democratic Front (“SDF”) (a recognised opposition party in Cameroon), the fact that she had participated in an anti‑government strike in January 1996, that she had been arrested and detained for two weeks, sentenced to eight months, released because of the forthcoming legislative elections, and then received two summonses to appear before prison authorities and a wanted notice. She was then advised to flee the country. The Secretary of State, however, concluded that that claim lacked credibility. The Secretary of State also considered the political situation in Cameroon, and concluded that he did not consider the appellant would suffer persecution solely by reason of her membership of the SDF. The Secretary of State also found that the appellant had (contrary to her evidence) had a passport and would have been able to leave through normal channels.
3.	Notice of refusal was served on the appellant on 22 September 1998. On 28 September 1988 the appellant filed a notice of appeal. The case was heard by a special adjudicator. In his decision, the adjudicator set out the evidence and the facts as he found them to be. He found that the appellant was a member of the SDF, a major and recognised opposition party whose basic policies were to promote democracy and human rights in the Cameroons.
4.	Upon her arrival the appellant said that she was a secretary of propaganda in a small town in Cameroon. She became involved because of alleged cheating by the Government in exams which favoured the alleged supporters of the ruling party. She said she was arrested on a march on 21 January 1996. She said that the government did not allow marches. She claimed that she was put in a police station cell for two weeks, beaten up and held in detention. She was released in on 7 October 1996. She engaged again in political activity, such as distributing leaflets, and it is recorded that there were no problems when the president of the SDF came to her town. In October, however, she was sent two summonses to return to the police station. She did not know the reason why. Her uncle said it was very frightening that they should send the summonses so soon after her release. Her uncle decided that she should leave and made the arrangements. She was only told she was travelling to the United Kingdom when she was on the plane. She gave a detailed account and she said that she had never had a Cameroon passport.
5.	She said if she was returned to the Cameroons she thought that she would be killed. Her mother was an important member of the SDF and provided it with funds but had not encountered the same problems as her. She told the adjudicator that she had been opposed to the government cheating in exams so as to prefer people friendly to them, but had not mentioned this in her asylum interview or subsequent statement. She said her mother had visited her in prison. There was an incident when the police were searching for her but she did not know the reason why.
6.	The special adjudicator then considered the state report, which disclosed, among other things, serious abuses of human rights in the Cameroons.
7.	In his determination, the adjudicator said that he had to consider whether the appellant had a well‑founded fear of persecution, and whether this subjective fear was justified. He held as follows. (1) He held that he had not been told the whole truth by the appellant. (2) He accepted that she was a member of the SDF. (3) He held that there was evidence which supported criticism of the conduct of elections in the Cameroons, in that members of the SDF had been arrested and held without trial, contrary to court orders. (4) He held that her failure to mention her claimed political activity in the Cameroons over examination cheating undermined her overall credibility. (5) He was prepared to accept the appellant's account of her arrest and detention. (6) He accepted that she was released on the date she contended. (7) He found that her reasons for her arrest were not clear. The appellant contended that it was because she had been involved in an anti‑government march. She said that at the police station she was told that a letter had been received from the authorities indicating that SDF supporters were not allowed to march. The adjudicator said (p 55):
“It seems to me that, according to the Appellant, there is evidence for suggesting that whatever activity the Appellant was engaged in when marching, it was not an activity that was permitted by the State. Such evidence as there is from the Appellant is more suggestive of arrest and detention in the course of prosecution rather than persecution.” 
8.	(8) The adjudicator accepted that the appellant was detained by the police for two weeks. She said she was beaten but not questioned, but she was then moved to the central prison at Douala, where she remained for eight months. The adjudicator did not accept her account of treatment and questioning while in detention. (9) The adjudicator found that the summons and wanted notice which had been served in October 1997 were, without more, suggestive of prosecution rather than persecution. He found that the authorities could have got at her for illegitimate reasons had they wished to do so while she was in prison. (10) He found that her account of her departure from the Cameroons was at odds with that of Bridget Wilson, an immigration officer in Douala at the time from the United Kingdom, who said that Miss Tientchu had a passport with her and claimed to be going to Roumania, for which she had a visa. The special adjudicator accepted Ms Wilson's account and rejected the appellant's account of her departure from the Cameroons. Lastly, the adjudicator looked at all the circumstances and on the question of the standard and burden of proof he directed himself according to Sivakumaran and Kaja.
9.	The adjudicator accepted that there was evidence to support the view that there had been flaws in the 1996 election in the Cameroons. He found that the major part of the appellant's activity was to criticise the government's “cheating” in examinations but, as I said, she failed to mention that in her initial interview and her failure to mention examination cheating as part of her asylum claim undermined her claim. There were other matters which he did not accept, as I have mentioned, including her account of treatment in detention.
10.	The matter went to the Immigration Appeal Tribunal, who refused permission to appeal. The matter then came before Ognall J, who refused permission to appeal on the papers. The matter then came before Jackson J. He held that the appeal really related to the adjudicator's findings of fact rather than a question of law. He noted the adjudicator's findings regarding the credibility of the appellant and his finding that she had been detained for reasons of prosecution rather than persecution, and he held that the adjudicator was entitled to find that the arrest of the applicant was in relation to a proposed prosecution and that it was not open to the Immigration Appeal Tribunal or the court to interfere with those findings. He therefore held that the appeal had no realistic prospect of success and refused the application for judicial review.
11.	Mr Jones, for the appellant, made a number of submissions. He has submitted on her behalf that the adjudicator made only a limited assessment of the issue as between prosecution and persecution, and that the Immigration Appeal Tribunal misdirected itself in stating that credibility was the determining feature of the appellant's challenge. Mr Jones submits that the determination of the question whether the applicant would face prosecution or persecution is a question of fact but involves the proper determination of a number of complex criteria. An offence such as sedition may be intrinsically political or it may be imbued with a political aspect as a result of the political motivations of the actors or the disproportionate response of the state. The UNHCR Handbook suggests that prosecution for an offence against public order (for example, the distribution of pamphlets) could be a vehicle for the persecution of an individual because of the political content of the pamphlet. The prosecution may be politically motivated or the punishment extreme. The handbook recommends that regard be had to the personality of the applicant, his political opinions, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives.
12.	Mr Jones also relied on T v Secretary of State for the Home Department [1996] 2 AER 365 as showing that a crime may be political if it is committed for a political purpose. He submitted that deprivation of a fundamental civil liberty would automatically convert any prosecution into an absolute political offence. He criticised the adjudicator's finding that the arrest and detention was in the course of prosecution and that the notice of summons was evidence more of prosecution than persecution. He submitted that the adjudicator failed to assess the background in order to ascertain whether there was an underlying and improper purpose for the action commenced. He submitted that the purpose of the action of the state was subverted by the unreasonable force and subjection to inhuman conditions, but, of course, on this point the adjudicator did not accept the contentions made by the appellant regarding her treatment. Mr Jones submitted that the appellant's detention was not in accordance with the penal code of Cameroon, and that her detention must therefore have been commensurate with the suppression of public disorder. Alternatively, the effect was to deprive her of her right to freedom of expression, which is a fundamental human right, and accordingly any proceedings under the law in question would, without more, amount to persecution. He submits that the past persecution of the appellant supports her claim as to the risk of persecution in the future and that the adjudicator disabled himself from properly evaluating prospective risk. He also submitted that the adjudicator's decision was flawed because he made no objective review of the materials.
13.	For the respondent, Mr Qureshi has submitted that the appellant was detained, tried and sentenced to imprisonment and that was indicative of prosecution. Her evidence was found incredible and her account of the events which she narrated (including her treatment and questioning in detention, the subsequent service of summonses and the wanted notice, and her account of her departure from the Cameroons) was not accepted.
14.	The question is whether the appellant has shown a reasonable prospect of success on appeal in showing that the adjudicator misdirected himself in law or made a determination which no reasonable adjudicator could make. Thus, in my judgment, the essential question is whether the adjudicator's determination that there was no well‑founded fear of persecution, because the evidence suggested that she had been wanted for contravention of the law rather than persecution, was reasonable. The essential question is the issue between persecution and prosecution. Prosecution has to be distinguished from persecution. Of course, as counsel has submitted, a prosecution for legitimate and acceptable reasons will not amount to persecution. But if it is politically inspired or being used to repress political activity, it may amount to persecution. Alternatively, persecution may be demonstrated by excessive or disproportionate or criminal acts on the part of a state, thus suggesting a political motive for its actions.
15.	Whether a prosecution amounts to persecution depends on a consideration of all the facts. It is, in effect, a question of fact. It is not the case that every political activity is necessarily legal, but the adjudicator has to determine on the facts presented to him whether the prosecution in fact is really a disguised persecution.
16.	In approaching this case, there seem to me to be two distinct episodes. The first occurred in January 1996, when the appellant was detained. This appears to have arisen out of a strike. Mr Qureshi, for the respondent, contends that the appellant was convicted and sentenced to a period of eight months' imprisonment. He makes that contention on the basis of answers given in the course of the appellant's asylum interview. But there is no finding to that effect, and I have proceeded on the basis that she was detained but not that that she came before a court and was convicted and sentenced. It is, however, a reasonable inference from the fact that she was held and from the surrounding evidence that it was for a public order offence. The question was thus whether it was a politically motivated detention and whether the penalty was proportionate or disproportionate. The adjudicator held that she was being detained for an illegal activity. The second episode occurred in October 1996, when the two summonses and the wanted notice were served on the appellant. The wanted notice states that the person concerned is the subject of legal proceedings, but then adds:
“. . . in respect of the carrying out of illegal political activities and incitement to strike.” 
17.	I now move on to the way the adjudicator approached these two episodes. The critical passage is at page 55 of the court's bundle. In the first complete paragraph of that page, the adjudicator stated that he was prepared to accept, on the lower standard of proof, the appellant's account of her arrest and detention. He also accepted her account of the date of her release and said that her account was one that could substantially be relied on. He then proceeded as follows. He said:
“What is not clear from the evidence adduced before me is the reason for the Appellant's arrest. She claims that it was merely because she attended a march of SDF supporters against the government and that a number of SDF supporters, including her, were arrested by the police and taken to the police station. At the police station, the appellant claims that she was told a letter had been received from the authorities indicating that SDF supporters were not allowed to march. It seems to me that, according to the Appellant, there is evidence for suggesting that whatever activity the Appellant was engaged in when marching, it was not an activity that was permitted by the State. Such evidence as there is from the Appellant is more suggestive of arrest and detention in the course of prosecution than persecution.” 
18.	The last sentence of that paragraph is the conclusion, that the evidence from the appellant was more suggestive of arrest and detention in the course of prosecution than persecution, and thus constitutes the adjudicator's determination that the episode amounted to prosecution rather than persecution. But the immediately preceding sentence was, as I have read, that according to the appellant there was evidence for suggesting that whatever activity the appellant was engaged in when marching, it was not an activity that was permitted by the state. I would observe that there was some ambiguity about what was meant by “marching” in this case. It could be that “marching” was a term used interchangeably with “striking”. It is not altogether clear, and it may be that the adjudicator used the words “whatever activity the appellant was engaged in when marching” because he too was unclear as to what exactly had taken place.
19.	I read that penultimate sentence in the light of the sentence before, which states that the appellant claimed that she had been told that marching by SDF supporters was unlawful. The adjudicator seems to have reasoned that, because the marching activity was unlawful and was an activity not permitted by the state, that meant that the arrest was more suggestive of prosecution than of persecution. But, as I see it, that would be an incorrect conclusion on the law, because the mere fact that a person is subjected to a criminal prosecution, or is the subject of detention by the police, does not mean that he is the subject of legitimate prosecution rather than persecution. As it seems to me, the adjudicator started the inquiry at the right place by asking what the reason was for the appellant's arrest, but has not pursued the matter through to its conclusion. He had to ascertain, in relation to detention or court proceedings, whether that was by way of persecution or prosecution, and the mere fact that the activity was unlawful did not resolve that question by that very fact.
20.	The same point can also be made about the way the adjudicator approached the second episode. The relevant passage is at page 56 of the court bundle. He refers to the two summonses, and he refers also to the wanted notice which contains the passage which I have already read. He then continues:
“No issue has been taken with regard to the authenticity of the document before me, although, if it is genuine, the existence of such a notice, or warrant of arrest, is, without more, evidence which is suggestive of the Appellant being wanted for a contravention of the law and therefore amounting to prosecution rather than persecution.” 
21.	He then adds an additional reason: 
“Furthermore, if the authorities had any adverse interest in the appellant for anything other than legitimate reasons, they had some eight months or so during her detention to impress their adverse interest upon her. The Appellant's account is without credibility.” 
22.	Here again, it seems to me that the learned adjudicator has assumed that because the appellant was wanted for an activity which was described as “illegal activity”, therefore the evidence showed that it was more in the way of prosecution rather than of persecution. But that conclusion, as I have said, is not one which would automatically follow as a matter of law. Mr Qureshi has argued that the adjudicator is entitled to assume that the prosecution was for legitimate purposes once he saw a document such as the summons but, as I see it, the adjudicator was bound to review all the circumstances and consider all the evidence and take account of, for instance, such factors as the description of the nature of the enquiry in the wanted notice itself.
23.	The manner in which the findings have been made suggests to me that the adjudicator did not consider all the circumstances, but merely drew the conclusion I have said; that, because the proceedings were apparently regular, it was a case of prosecution and not of persecution. Therefore, as I see it, the appeal has to be allowed and the matter remitted to a different adjudicator from the adjudicator who has already heard this matter. That is the appropriate course, given that there are ambiguities in the existing findings.
24.	Mr Qureshi has argued that the adjudicator in this case was placed in a very difficult position, and submitted that the adjudicator did not have enough facts before him. The onus is on the appellant to provide evidence, albeit on a lower standard of proof. However, the adjudicator also found that the appellant had not told the whole truth; that is at the very outset of his determination. He found, for instance, that she had lied about the circumstances of her departure, and counsel point to at least four other occasions on which he rejected her evidence. It was indeed an unsatisfactory application and the fact that this appeal has been allowed should not be seen as an encouragement to the appellant that evidence should be given which is not thoroughly truthful. Nonetheless, I reach the conclusion that this appeal should be allowed.
25.	LORD JUSTICE RIX: I agree. The adjudicator found upon good evidence that the appellant had lied about the immediate circumstances of her departure from Cameroon. In those and other circumstances referred to in his determination regarding her credibility, the adjudicator could in theory have found that the appellant was not credible in the substance of the account which she had given concerning what had befallen her in Cameroon in 1996. However, with commendable care and fairness, the adjudicator did not proceed in that way. On the contrary, he made careful findings regarding particular matters to which my Lady, Lady Justice Arden has referred, regarding her arrest and detention and the length of that detention. So on those matters, he was prepared to believe the appellant, despite the background in general of her evidence.
26.	In the critical passage, at page 55 of the court bundle, in which the adjudicator deals with the reason for the appellant's arrest, the adjudicator appears to me to make no finding either way as to that reason. He neither says that he does, or does not accept the appellant's account. But he was prepared to proceed upon the assumption that the appellant's account was correct. In the passage which my Lady has cited, he reasons that “according to the appellant” “such evidence as there is from the appellant” entitles him to conclude that the appellant was subjected to prosecution rather than persecution. However, the mere fact that some conduct is the subject of prosecution does not mean that it is not the subject of persecution. Accepting for the sake of argument, as he was prepared to do, the appellant's account in evidence of the reasons for her arrest, he was in my judgment not entitled to conclude that there was no persecution.
27.	For good measure, the objective background of the circumstances in the Cameroon gave corroborative support to the appellant's account, if one gets as far, as the adjudicator did, of accepting it even for the purpose of argument. It is sufficient for me to refer to an extract from Amnesty International's paper dated 16 September 1997 about Cameroon and, in particular, the passage at pages 7 and 8 of that document regarding the harassment and arrest of political opponents, including the members and supporters of the SDF both in 1996 and 1997.
28.	For the same reasons, it seems to me that the adjudicator erred in his treatment of the October 1996 warrants and wanted notice. Those were accepted as genuine documents and the adjudicator erred in inferring, without more, that the reference to illegal political activity was inconsistent with persecution.
29.	For those reasons, in addition to the reasons given by Lady Justice Arden, I would agree with her conclusion on this appeal.
30.	LORD JUSTICE SIMON BROWN: Seldom can there have been a sounder basis than in this case for a special adjudicator making strong adverse findings upon an asylum seeker's credibility. The evidence of the chief immigration officer, Bridget Wilson, about her chance encounter with this appellant at the point of departure from Cameroon, amply justified perhaps, indeed, compelled the conclusion that the appellant's evidence could not be relied upon. If, moreover, it was so unreliable as to the circumstances of her departure then, inevitably, grave doubts too were cast upon her credibility regarding other aspects of her case. Indeed, additional reasons existed for doubting her evidence upon these other matters.
31.	All that said, I reluctantly conclude, in common with Lady Justice Arden and Lord Justice Rix, that this special adjudicator's determination, and thus the IAT's refusal of leave to appeal against it, was materially flawed and cannot be sustained. The most critical single paragraph in the adjudication has already been quoted, but for convenience I repeat it:
“What is not clear from the evidence adduced before me is the reason for the Appellant's arrest. She claims it was merely because she attended a march of SDF supporters against the government and that a number of SDF supporters, including her, were arrested by the police and taken to the police station. At the police station, the Appellant claims she was told a letter had been received from the authorities indicating that SDF supporters were not allowed to march. It seems to me that, according to the Appellant, there is evidence for suggesting that whatever activity the Appellant was engaged in when marching, it was not an activity permitted by the State. Such evidence as there is from the Appellant is more suggestive of arrest and detention in the course of prosecution rather than persecution.” 
32.	That paragraph has, of course, to be considered in the context of a finding by the special adjudicator that, whatever lies the appellant might have told, her membership of SDF and her account of her arrest and detention were established to his satisfaction. The central question therefore which he had to address was whether that arrest and detention fell to be ascribed to what may be called proper prosecution and detention, or whether they would rather be regarded by the international community as plainly improper: prosecution and detention well‑recognised by the case law and the commentators to amount to Convention persecution.
33.	The difficulty with the quoted paragraph is that the special adjudicator appears to be deciding no more and no less than that (1) on the occasion of her arrest the appellant was engaged in an activity forbidden by the state; (2) she was arrested and detained because of that non‑permitted activity; (3) that incarceration was therefore in the course of prosecution; and (4) accordingly it was not persecution.
34.	If, as appears, that was the special adjudicator's process of reasoning, it is clearly flawed. The real fear here, perhaps even the probability, is that none of the evidence before the special adjudicator, and certainly nothing that the appellant had said (and it was upon the latter that the special adjudicator appears to have relied) justified the view that the state was entitled to treat her as it did consistently with proper law enforcement practice, and that it was not rather political persecution.
35.	No doubt the special adjudicator could have decided simply that he did not believe a single word that the appellant had told him in evidence; but having accepted, as he did, certain parts of her evidence (limited though in one sense these were) in my judgment he could only properly have refused her claim for asylum, given the wealth of evidence before him of the gravest human rights abuses in Cameroon, had there been some evidence truly pointing towards this applicant having committed a non‑political offence, rather than having acted in a way which the international community would surely regard as involving the legitimate expression and advancement of a political view.
36.	These reasons, I recognise, do no more than reiterate in my own language the reasoning already given by the other members of this court. I too would accordingly allow this appeal.
37.	Rather than that the matter should be remitted to the IAT for them to grant permission and deal with the appeal appropriately, it seems to me that the proper result is that that step should be by‑passed, the adjudicator's determination also should be quashed and the matter remitted for fresh determination of the appellant's appeal against the Secretary of State's refusal of refugee status; that to be heard by a different special adjudicator.
ORDER: Appeal allowed with costs. Public funding assessment granted
(Order not part of approved judgment)