C/2002/0954
Neutral Citation Number: [2002] EWCA Civ 1512                                               
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
THE IMMIGRATION APPEAL TRIBUNAL 
Royal Courts of Justice 
Strand 
London, WC2 

Monday, 7 October 2002
 
B E F O R E:

LADY JUSTICE ARDEN 

LORD JUSTICE DYSON 
 
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ESAM HUMAIDI
Applicant 
‑v‑
 
SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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MR N BLAKE QC AND MR E WAHEED (instructed by Southerns Solicitors, Nelson B69 7JS) appeared on behalf of the Applicant
The Defendant did not appear and was not represented. 
 
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J U D G M E N T
                                      Monday, 7 October 2002 

1.	LADY JUSTICE ARDEN:  I will ask Lord Justice Dyson to give the first judgment.
2.	LORD JUSTICE DYSON:  This is an application for permission to appeal against the decision of the Immigration Appeal Tribunal of 7 March 2002, by which the Tribunal dismissed the appellant's appeal against the dismissal by the Adjudicator on 14 September 2001 of his appeal against the refusal by the Secretary of State of his asylum claim.  
3.	The appellant is a Yemeni subject.  He entered the United Kingdom in October 1995 and was given six months leave to enter.  He applied for asylum on 25 April 1996 on the basis of a well‑founded fear of persecution of Yemen on grounds of his anti‑government activities.  He was not interviewed until October 2000.  His case, in summary, was that he had been a member of the army between 1991 and 1994 but had deserted in 1994 when civil war broke out.  He then joined the Al‑Wahdewi party and spoke out against the government at many meetings.  He left the country with his father's help.  Sometime after his arrival in the United Kingdom he learnt that a warrant had been issued for his arrest.  It was dated 22 January 1996, and it has assumed some importance in the proceedings. 
4.	The Secretary of State refused the asylum claim saying this:  
"5.  The Secretary of State notes that you have never attended rallies, demonstrations, you have never been arrested and that neither you nor any member of your family has ever been involved in any political activity or experienced any harassment, persecution or detention at the hands of the Yemeni authorities.  The Secretary of State concludes that you have not demonstrated that you are likely to be of adverse interest to the authorities should you return to Yemen.  
The Secretary of State considers the warrant for your arrest to be an example of prosecution not persecution ... 
He is satisfied however that if there are any charges outstanding against you, and if they were to be proceeded with on your return, you could expect to receive a fair trial under an independent and properly constituted judiciary.  
Further doubts as to your alleged fear of persecution can be drawn from the fact that you did not leave Yemen until October 1995.  The Secretary of State holds the view that if your fear of persecution was genuine you would have left Yemen at the earliest opportunity and the fact that you did not casts doubt on your credibility." 
5.	The Secretary of State also decided that he was not satisfied that the appellant should be allowed to remain in the United Kingdom on European Convention and Human Rights grounds.  
6.	The appellant gave evidence before the Adjudicator which was summarised in the determination.  The Adjudicator stated at paragraph 16 of his determination that he did not find the appellant to be a credible witness.  He said: 
"16.  I did not find the Appellant to be a credible witness.  His account about joining and leaving the army was vague particularly when cross‑examined about how his father had enabled his release from the army.  I also found his descriptions about the meetings, which he held to be vague.  At one stage he was saying the meetings were attended by at least 35‑40 people however, at other times he said the meetings were in his friend's house.  Further he says he never spoke about religion however, he says when the two army officers visited him they said he had been speaking about religion.  He also said that in his talks he never spoke about religion because it was far too dangerous, if he spoke about religion he would be killed.  However it appears to me that (if what he is saying is that he believes so much in the anti‑government anti‑regime doctrine he has been speaking about that he cannot stop himself being outspoken about it) it does not follow that he can so easily control what he says about religion.  In short it doesn't add up.  I also note amongst the discrepancies between his written statement and his oral statements before me where at paragraph 12 he says that on his return home his father and mother pleaded with him to stop his political activities and addressing public meetings.  He then says he told his parents this would be impossible and he reminded them about his uncle having killed himself for his beliefs.  However, in his oral evidence today he says that when he returned, and told his parents about this threat, his father had accused him of being just like his uncle.  Although this is perhaps a minor discrepancy it is significant when looking at the appellant's overall credibility."
7.	He then considered the asylum claim and referred to the fact which had impressed the Secretary of State that the appellant claimed to have spoken at more than 80 public meetings criticising the government, and yet had never been arrested, detained or questioned, save on one occasion when he was staying at his friend's house in Ta‑Izz and was visited by two army officials who he said told him that he was a well‑known dissident, that he must stop his activities and that if he continued with them he would be killed.  
8.	The Adjudicator then referred to the warrant for his arrest which the appellant claimed corroborated his claim for asylum.  It was in these terms: 
"To whom it may concern
There are orders to arrest Isam Yahia Hammadi and deliver him to the authorities as soon as possible or to provide information with regard to his whereabouts.  We appreciate the help of anyone who may provide information." 
9.	Of the warrant the Adjudicator said this, at paragraph 23 of his determination page 68 in the bundle: 
"I do not find such a warrant convincing.  The Appellant has already said how his father was able both to get him in and out of the army and that he would send him documents which he should take to the authorities in the UK in order to seek asylum.  If the document is authentic it is likely that his father was able to provide such a document.  The document does not say why the Appellant should be apprehended.  Of course this fits with the Appellant's story.  If the appellant had come to the attention of the authorities he would have been detained either whilst he was speaking or very shortly after." 
10.	It is to be noted that the Secretary of State did not challenge the authenticity of the warrant before the Adjudicator.  The Adjudicator dismissed both the asylum and the human rights claims.  The appellant was given leave to appeal on grounds that it was arguable that the discrepancies in the appellant's account, which had been relied upon by the Adjudicator, did not justify the finding that he was not a credible witness; and that in the light of the Secretary of State's failure to challenge the authenticity of the arrest warrant there was "some cause for concern" as to the Adjudicator's conclusions on this point.  
11.	The Tribunal dealt with the Adjudicator's conclusion that the appellant was not a credible witness.  They said that the minor discrepancy highlighted by the Adjudicator in paragraph 16 about the appellant's uncle was one to which he, the Adjudicator, should not have attached any weight.  They went on to say, however, that this was not the only discrepancy or vagueness in account that had been relied upon by the Adjudicator.  In paragraph 12 of their decision, the Tribunal said this: 
"The adjudicator noted that at one stage the appellant said the meetings he addressed were attended by at least 35‑40 people whereas at other times he said the meetings were in his friend's house.  He also noted that the appellant said quite different things about whether he had ever spoken about religion at these meetings.  Mr Wahid [who was appearing for the appellant] said that the adjudicator's assessment of these two further matters as discrepancies rested on a misunderstanding of the appellant's evidence.  We take a different view.  If anything, the difference in the appellant's accounts of these two matters went further than even the adjudicator described them.  The appellant's emphasis on meetings in a friend's house is difficult to square with the account he gave in his written statement which described mainly meetings held in public.  And when asked at the hearing about religion, the appellant was adamant that he did not speak out against religion because that would have been fatal.  Yet in his interview he said that in his speeches he was sometimes 'blasphemous' and had been talking to people about 'politics, religion'.  And a statement submitted in support by Moneef Shaibani said that in his speeches 'Esam criticised both the political system and indeed the religious system in the Yemen.'" 
12.	The Tribunal also noted correctly (at paragraph 13) that the Adjudicator had not only relied upon the vagueness of account identified by the Adjudicator, but had also relied on the vagueness of the appellant's account about joining and leaving the army as a major reason for finding the appellant to be lacking in credibility as a witness.  
13.	The Tribunal then turned to the warrant of arrest.  At paragraph 17 they said this: 
"17.  However, we do not think these flaws fundamentally undermine the adjudicator's determination.  There are real difficulties with the arrest warrant as a reliable piece of evidence.  One is that averted to in the adjudicator's last sentence of paragraph 23.  If the authorities had considered the appellant to be a threat to their regime the time to have issued an arrest warrant was surely much earlier.  On the appellant's own account he had spoken out against the government at numerous public meetings in 1994/5 ‑ he gave the figure of over 80.  We know from background country materials that public meetings of a political nature were likely to have been closely monitored.  Yet he on his own account he was never arrested, detained or questioned save on one occasion at his friend's house when he said he was threatened by two people who were probably from the army.  Instead the authorities are said to have delayed over eight months until after he left the country to issue this warrant (it is dated 22 January 1996).  Whilst the fact that it does not mention charges shows nothing on its own, it also means that it does not show it was in respect of his claimed political troubles either.  If the appellant had deserted from the army there might be a legitimate reason for an army warrant of arrest.  Additionally the document was sent to him, he said, by his father, someone who on his own account had used bribes to obtain a false document from the Ministry of Foreign Affairs to support the visa application.  In such circumstances, it does not seem to us that the adjudicator can be faulted for declining to accept the arrest warrant as (in his words) 'convincing.'"  
14.	The Tribunal did not make any express finding as to the authenticity of the document, but concluded that the Adjudicator was entitled to conclude that it weakened rather than strengthened the claim.  
15.	In submitting that permission to appeal from the decision of the Tribunal should be granted, Mr Blake has identified three flaws in the Adjudicator's decision which were so identified by the Tribunal.  These are first, the discrepancy mentioned by the Adjudicator relating to the appellant's uncle which was described by the Adjudicator as a "minor" discrepancy; second, the fact that the authenticity of the arrest warrant was not in issue before the Adjudicator or indeed before the Tribunal, and yet was relied upon by both of them as casting doubt on the strength of the appellant's case; and third, that the Adjudicator said that he took into account against the appellant in relation to his credibility the timing of his asylum application, whereas the Tribunal said at paragraph 19 of their determination that he should not have done so.
16.	Relying on those three flaws, as Mr Blake describes them, Mr Blake submits that the Tribunal was faced with a choice between two courses.  They should either have remitted the appeal for hearing afresh, or they should themselves have heard evidence from the appellant and from the witnesses whom he wished to call and made fresh findings of fact in the light of that evidence.  The fact that they took neither of these courses, Mr Blake submits, is fatal to the decision of the Tribunal.  Moreover, he submits that, having wrongly decided the appeal without the benefit of evidence from the appellant and any other witnesses whom he wished to call, the Tribunal compounded their error by making incorrect findings of their own.  For example, they said that in his interview the appellant had stated that his speeches were sometimes "blasphemous" whereas in fact the notes of interview show that he said that sometimes other people used to say that he was blasphemous.  
17.	Next, the Tribunal made the point that, when asked at the hearing about religion, the appellant said that he had not spoken out against religion, and yet in the notes of interview he is recorded as having said that he had been talking to people about religion.  The fact remains, however in my judgment, that the Adjudicator's point remained good, namely, that in evidence to him, the Adjudicator, the appellant had said that he never spoke about religion; that was, in my judgment, a relevant discrepancy which has not been impugned.  
18.	Mr Blake also makes a point about the discrepancy described by the Adjudicator as "vagueness" about whether the meetings at which the appellant spoke were in public or at a friend's house.  Mr Blake says that this was not necessarily an inconsistency because the friend's house might have been large enough to accommodate 35 to 40 members of the public.  But the Adjudicator noted at paragraph 16 of his determination that at paragraph 12 of the appellant's statement, the appellant had said that his parents had pleaded with him to stop his political activities "and addressing public meetings."  In my view the Adjudicator and Tribunal were entitled to treat this reference to "public meetings" as being different from meetings in a private house.
19.	Mr Blake has skilfully exposed some shortcomings in the reasoning of the Adjudicator and Tribunal; but the question is, has he shown that there are reasonable prospects of overturning the Tribunal's decision on grounds of error of law?  In my view it does not necessarily follow from the fact that, because shortcomings in the reasoning and approach of the Tribunal have been exposed, permission to appeal should be given.  It seems to me that the real reason why the asylum claim was rejected by the Adjudicator was not because there were discrepancies of detail, or vagueness as to the detail of the appellant's alleged anti‑government activities.  It is because if the appellant had spoken at more than 80 public meetings, as he contended, it is highly improbable that he would not have been arrested, detained or questioned.  Moreover, on the one occasion of which he spoke, namely the 1995 incident when he was visited by the two army officers, he was neither arrested nor detained.  In these circumstances it is highly improbable that a warrant for the appellant's arrest on unspecified grounds would have been issued, let alone many months after he had left the country.  Still less would such a warrant have been issued on grounds which would have formed a proper basis for a well‑founded fear of persecution.  It seems to me that that was the essential reasoning that led the Adjudicator to reject the asylum claim at paragraphs 22 to 25 of his determination, and the human rights claim at paragraph 30.  It is also the reason why the Secretary of State rejected the claim in the first place; and finally, it is also the reason why the Tribunal rejected the asylum appeal at paragraphs 17 to 20 of their decision and held that there was no factual basis for considering that the appellant was at risk of a violation of Article 3 of the European Convention of Human Rights.
20.	I draw particular attention to the passage at paragraph 17 of the Tribunal's determination, where they say: 
"On the appellant's own account he had spoken out against the government at numerous public meetings in 1994/5 ‑ he gave the figure of over 80.  We know from background country materials that publish meetings of a political nature were likely to have been closely monitored.  Yet he on his own account he was never arrested, detained or questioned save on one occasion at his friend's house when he said he was threatened by two people who were probably from the army."
21.	In these circumstances I have no doubt that, if the appellant had given evidence before the Tribunal, the outcome of his appeal would have been the same.  He could give no explanation to the Adjudicator which accounted for the fact that he was not arrested or detained or for the late issue of the warrant of arrest.  Nor has he ever provided such an explanation.  Similarly, although some of the shortcomings in the appellant's account relied on by the Adjudicator and Tribunal as casting doubt on his credibility have been exposed by Mr Blake as lacking in substance, some shortcomings remain.  But more fundamentally the essential reason for rejecting the claim to which I have referred has not been touched.  
22.	For these reasons I would refuse this application.   
23.	LADY JUSTICE ARDEN:  Notwithstanding the helpful submissions of Mr Blake QC, I agree this application should be dismissed, for the reasons my Lord has given.  

 (Application refused; Community Legal Services funded assessment).