C5/2005/2149
Neutral Citation Number: [2006] EWCA Civ 927
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT NO. AS/07121/2004]
 
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 26th May 2006
B E F O R E:
LORD JUSTICE RIX
LORD JUSTICE MOSES
MR JUSTICE HEDLEY
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M
CLAIMANT/APPELLANT
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
DEFENDANT/RESPONDENT
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(DAR Transcript of 
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR M HENDERSON (instructed by Sonal Ghelani, Refugee Legal Centre, E1 2DA) appeared on behalf of the Appellant.

MR S KOVATS (instructed by The Treasury Solicitor, London WC2B 4TS) appeared on behalf of the Respondent.
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J U D G M E N T 

1.	LORD JUSTICE MOSES:  This is an appeal, with leave, from a decision of the Asylum and Immigration Tribunal dated 22 August 2005.  The appellant is a citizen of Zimbabwe.  The AIT rejected her claim to asylum and pursuant to Articles 3 and 8 of the Convention.  Their rejection followed the IAT’s Vice President grant of permission to appeal to the Secretary of State, following this appellant’s successful appeal to an adjudicator on both asylum and Article 3 grounds.  The decision of the adjudicator, Mr Ievins was promulgated on 4 June 2004.  The issue on this appeal is whether the IAT was entitled to reject the claim in the light of the facts found by the adjudicator, on the ground that there was an error of law in the findings of the adjudicator and, significantly, on the basis of the grounds on which the Secretary of State had sought to appeal against the adjudicator’s findings of fact. 

2.	Let me turn to facts relating to this appellant which were not in dispute.  She was born in Zimbabwe in 1974 and she joined her parents in the United Kingdom in about 1980.  Her parents had been recognised as being entitled to refugee status.  Following independence, the family returned to Zimbabwe in 1981.  There she studied and worked until March 1999, when she returned to the United Kingdom and worked with leave as a holidaymaker.  She married her partner in 2001 and applied for leave on that basis, but before the determination of that application the marriage had unfortunately broken down and, typically of her frankness in immigration matters, the appellant notified the Home Office of that fact in 2002 and withdrew her marriage application.  In short, she is a shining example of the way those subject to immigration control ought to behave.  

3.	The Home Office extended her leave to remain as a student and she studied for an MBA.  She was granted an extension until January 2004 to complete her dissertation for that purpose.  In December 2003 she had returned to Zimbabwe to meet potential employers following completion of her MBA.  She travelled to Botswana with her uncle, and it transpired that her uncle was associated with and a supporter of the opposition, the MDC; he was travelling for that purpose.  

4.	On her return in January 2004, as the adjudicator found, she was in her uncle’s house during a raid by the governing party, the Zanu-PF; it was suspected that her uncle’s house was being used for MDC meetings.  The result of that was that she was detained, imprisoned in that house for three days, questioned about MDC activities once her travelling details to Botswana had been discovered, as well as details of her journey to the United Kingdom.  She was beaten and she was sexually assaulted by forcible penetration of her vagina with one of the assailant’s hands.  She was taken to what might be described as a safe house, where supporters of the MDC lived, after a medical examination.  She was taken to the police by the MDC, but the police, consistent with what is known from the objective evidence, were uninterested.

5.	The adjudicator found as a fact that the appellant’s account of those incidents was true.  It is important to appreciate that the Secretary of State had not accepted her credibility, and his letter of refusal had specifically identified grounds for disbelieving her.  It is, therefore, all the more important to appreciate that, having heard her and considered the background evidence, the adjudicator explicitly found that her account of her experiences in Zimbabwe in January 2004 was true.  

6.	Before considering any further facts, it is necessary to place the factual decision of the adjudicator allowing her appeal in the context of the procedural history and the proper procedural framework.  The Secretary of State had a right of appeal, with permission, pursuant to section 101 of the Nationality and Immigration and Asylum Act 2002 (“the 2002 Act”).  Crucial to the ambit of permission and the appeal were the grounds upon which permission was sought.  It should be recalled that prior to the introduction of the new system of appeals, grounds of appeal could include both errors of law and errors of fact, but that was changed and by the time of the Secretary of State’s application for appeal in the instant case, the only ground of appeal was on error of law.  

7.	In those circumstances, the grounds of appeal upon which permission to appeal was sought, and the permission itself, were of crucial importance.  They set the limits of the jurisdiction on error of law of any appeal, were permission to be granted; they identified what error of law could be the subject of the appeal.  

8.	This point was made clear by the then Master of the Rolls, Lord Phillips, in B v Secretary of State for the Home Department [2005] EWCA Civ 61 at 18.  In that paragraph the Master of the Rolls said, n relation to an appeal by the Secretary of State, when it was contended that not too critical a view of grounds of appeal should be taken, this:

“While a court will always wish to ensure that the substance of the case is not lost just because of poor drafting, the grounds form the agenda on which the IAT considers the grant of permission and, if granted, conducts the appeal.  As this case shows, with the recent limitation of the jurisdiction of the IAT it is particularly important that the grounds should clearly establish that the appeal does at least in form fall within that jurisdiction. […]  Where the Secretary of State seeks to appeal against an adjudicator’s decision it is important that the grounds of appeal should be settled by someone who is capable of identifying clearly the points of law on which it is alleged that the adjudicator has erred.”

9.	It is essential therefore, for the purposes of this appeal, to bear in mind that the IAT’s consideration of the Secretary of States application for permission should have been limited to the grounds advanced.  This strict approach is enforced by the fact that, although a Vice President of the IAT might identify another ground of appeal on point of law, it would be then up to him to suggest an amendment and then only consider that ground once an amendment had been made.  In this case, no application to amend was made; no need to amend was identified. 

10.	Once permission was granted, as it was in this case, under the transitional arrangements reconsideration was to be by an Asylum and Immigration Tribunal.  The transposition of the jurisdiction of the IAT to the AIT was achieved through the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, commencement number 5 and Transitional Provisions Order 2005, article 5.  It is important also to bear in mind rule 62(7) of the Asylum and Immigration Tribunal Procedure Rules 2005, which provided in the full-out words:

“The reconsideration shall be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal.”

11.	With those strict rules in mind, I then turn to consider the grounds upon which permission to appeal against the adjudicator’s decision was sought.  There were three grounds.  The first and third have since been abandoned, but that of course reveals that it was not a particularly promising start which the Secretary of State made, when one bears in mind that permission was granted in relation to all three grounds. It makes one certainly cautious about the processes and decisions reached in the course of this appeal.  It is necessary to focus, though, on the second ground which read:

“The Secretary of State further submits that the adjudicator has failed to apply the appropriate standard of proof when considering risk on return.  The Secretary of State would highlight [they would then set out four bullet points, I will read them one to four]:
1) The appellant is ‘not political’ (paragraph 10),
2) The appellant was able to leave Zimbabwe using her own travel documents,
3) Even taken at its highest, the appellant’s claim is based on a single isolated event and that ‘up until January 2004 she had had no problems in Zimbabwe’ paragraph 10. 
4) That the adjudicator had found that ‘it may be that there is a degree of exaggeration in that I do not suppose that Zanu-PF activists would really follow this appellant … (paragraph 12).”

12.	Then it continues:

“However, the adjudicator finds that ‘in Zimbabwe as it is today there is a serious possibility that were she to be returned to Zimbabwe the same thing would happen again’ (paragraph 12).  The Secretary of State submits that the adjudicator has erred by failing to provide sufficient reasoning as to how the appellant discharges the burden to the appropriate standard and that it is complete speculation on behalf of the adjudicator to find that the appellant faces persecution because of perceived MDC links on the evidence before him.”

13.	Vice President Perkins considered those grounds and granted permission.  In his reasons for decision he said:

“The grounds of appeal show an arguable case that that adjudicator’s findings of fact are perverse or otherwise unsustainable because they do not show proper regard for the evidence as a whole.  Additionally it is arguable that the adjudicator did not give proper consideration to any possibility of the claimant seeking protection within Zimbabwe.  I give permission to appeal on each ground.”

14.	There are a number of observations it is necessary to make about that grant of permission.  Firstly, it does not confine itself to the grounds upon which permission to appeal was sought.  In that, it seriously erred.  The Vice President, absent any application for an amendment or suggestion of an amendment, had to confine his consideration of his jurisdiction to the grounds of appeal which were advanced.  He failed to do that, and applies broad and unfocused reasoning related to perversity on the evidence as a whole.  This was not and never had been a ground of appeal advanced.  

15.	Secondly, in the second paragraph he goes off on what could only be described as a frolic of his own relating to internal flight, which had never been a basis upon which the adjudicator had reached his conclusion, and again was referred to at paragraph 3 by the Secretary of State, misleading the Vice President, but having no basis in the decision actually the subject of challenge.  

16.	The only thing, therefore, which saved this grant of permission was the final words: “I give permission to appeal on each ground.”  Not, however, a particularly firm basis when one appreciates that now the Secretary of State abandons the first and third ground.  But it saves the second ground, if in truth that was a proper ground of appeal.  

17.	So the first question in relation to this appeal, which must be viewed in that context, is whether the second ground did in fact form a ground susceptible to an appeal on error of law.  Mr Henderson, on behalf of the appellant, points out that the opening words of paragraph 2 refer to a failure to apply an appropriate standard of proof.  That has not been pursued and was wholly unsustainable.  There was no basis whatever for saying that the adjudicator, who referred to the correct standard of proof in his adjudication, had not applied the appropriate standard of proof.  But in my view there was to be found within ground 2 sufficient, just, to amount to an alleged error of law; namely ,what is described as complete speculation in relation to the risk the appellant faces on return because of perceived MDC links.  That was a ground that can be found within the grounds advanced by the Secretary of State that would, if sustainable, amount to an error of law and was a basis upon which the Vice President could grant permission.  

18.	It must be remembered that there was no challenge, as there could have been, by way of an application for judicial review, of the grant of permission, so this court has to focus on whether there was indeed an error of law in the adjudicator’s conclusion that there was a risk to this appellant on return.  Before the AIT in its determination of 22 August 2005, it was argued that there was such an error of law, and the AIT concluded that that was well founded.  It said at paragraph 7 of its decision: 

“It appeared no more than the adverse consequences of the ill-fortune of being in the company of her uncle at the time of the detention and sexual abuse; but for her presence there and thereafter being seen in his company no interest would have been taken in her whatsoever.  We bear in mind that when she first came here at about the age of 25 at that stage had she faced problems with political activities or her family’s political activities she would have sought protection.  Likewise after the various times when she returned.”

19.	Paragraph 8:

“At the date the matter came before the Adjudicator the appellant was nearly 30 years of age.  We can find no reason why on return to Zimbabwe she would be at real risk of proscribed ill-treatment.  There is nothing to indicate why the entire misadventure and sexual abuse, which was not rape, would be likely to recur.  There is nothing particularly identifiable about her and nor had anybody picked on her before by reason of any association or perceived association with the MDC.  
9. For these reasons, therefore, we find that the Secretary of State’s argument is right that the adjudicator made a material error in his consideration of the issue of internal flight and risk posed.  We note in passing that the appellant does not have any intention to participate in MDC politics or opposition to the ruling regime.  There was no real risk of proscribed ill-treatment on return.”

20.	In the light of my views that in ground 2 of the application for permission there was just sufficient basis for advancing that assertion that there was such an error of law, the question then arises as to whether the AIT was correct in identifying that as being an error of law in the adjudication.  In paragraph 9 the AIT refers again to the issue of internal flight. If these cases are to be subject to anxious scrutiny, it is somewhat dismaying to see that the error originally triggered by the grounds of appeal was continued by the AIT. I repeat: there was no reference whatever in the adjudication to internal flight and it escapes me as to how that error persisted in the decision of the AIT.

21.	I pass over the fact that, in drawing its decision adverse to this responsible and respectable citizen of Zimbabwe, the tribunal saw fit to refer to the fact that the sexual abuse was not rape.  Technically it might not have been, but that was a wholly irrelevant fact.  It was insensitive of the tribunal to refer to it; it must have caused particular misery to this appellant, who had had her application for asylum turned down at such a late stage.  It should never have found its way into the determination and there was no reason for it to do so.  

22.	But that does not grapple with the essential point of the appeal, which requires revisiting the adjudication and the determination of Mr Ievins.  The question is as to whether he did find sufficient facts to justify his conclusion that there was a risk on return.  In my judgment he clearly did, and it is not even arguable to the contrary, although the Vice President had thought that it was.  At paragraph 5 of the decision, the adjudicator correctly summarises that facts that he was subsequently to find.  I have already identified those: the detention and sexual assault within the house to which she and her uncle had gone.  

23.	The important feature of those facts is that this appellant was imprisoned and beaten and assaulted because of a perceived association with the MDC.  She was not herself a member of the MDC, but she was associated with it because she had been seen with her uncle.  It is important to note that she was threatened by two Zanu-PF members, one of whom, as the adjudicator recalls, recognised the appellant from an earlier attack.  Thus her association had led to those attacks upon her.

24.	In paragraph 27 of the decision the adjudicator stresses that he finds her account of her experiences in Zimbabwe to be credible.  He points out that there have never been discrepancies between her initial account and what she has said subsequently.  She described a situation where she thought that she was being followed around in Zimbabwe and the adjudicator commented:

“It may be that there is a degree of exaggeration in that. I do not suppose that Zanu-PF activists would really follow this appellant but it is not at all implausible that she would come across someone who knew her and was involved with Zanu-PF by chance.  The appellant’s account of her confusion and distress I find to be entirely plausible.  Taking the appellant’s account of her experiences as a whole I do not find that she has made it up. In Zimbabwe as it is today there is serious possibility that were she to be returned to Zimbabwe the same thing would happen again.”

25.	Mr Kovats, with his usual care, consideration and frankness, has assisted us today, as he has so often assisted this court in the past, by making sensible and fair submissions.  His submissions have persuaded me that it was sufficient in the grounds at paragraph 2, for the reasons I have already given, to justify an appeal, but he has wisely not taken time in repeating what he has fairly set out in his skeleton argument.  He pointed out that there were only limited facts found in relation to association with her uncle and contends that that was insufficient to found a finding of risk on return.  

26.	I disagree.  Properly understood, the findings of fact of the adjudicator make it perfectly plain that it was only a perceived association with supporters and members of the MDC that had led to a serious attack on her before.  In the light of the objective evidence, never challenged and never capable of any challenge, of the sort of conditions that attract such strong criticism from this government, who would have her return, the suggestion that she is at real risk on return is far from fanciful.  Sufficient facts were found to provide that basis, once one appreciates that it is focused upon the dangers that she suffered from and the dangers in the future from a mere association through members of her family with the MDC.  

27.	In those circumstances, I for my part think there was nothing whatever in the suggestion that there was no basis in fact for the conclusion that she was at risk on return.  On the contrary, there was, in my view, ample evidence to support the adjudicator’s conclusion.  As I have said, there was no basis whatever for a challenge to this decision. It never should have been challenged, nor should there have been an appeal. 

28.	In all the public complaints about the manipulation of the immigration system and the pursuit of unfounded appeals by unscrupulous lawyers, it is a pity, and dispiriting, that the Department in the instant case have set so poor an example by attempting to appeal on grounds which amount to no more than a dispute of fact in relation to a country whose behaviour is so frequently and vociferously condemned by the Government which sought to return this unfortunate appellant. 

29.	I would allow this appeal.

30.	MR JUSTICE HEDLEY:  I agree, not only with the result proposed by my Lord, but with all that he has said.

31.	LORD JUSTICE RIX: I agree. Towards the end of the adjudicator’s careful determination, in paragraph 27, he said this:

“There is a serious possibility or reasonable likelihood or real risk that she would be persecuted on account of her imputed political opinions as a person perceived as associated with the MDC and what might happen to her can also be described as inhuman or degrading treatment contrary to Article 3 of the Human Rights Convention.”

32.	Against the background of the appellant’s evidence, recited and accepted by the adjudicator, there was ample evidence for that conclusion.  That conclusion in a single sentence made it impossible, in my judgment, for an appeal on the grounds of perversity to succeed.  The essential argument before the adjudicator was that the appellant was not a credible witness.  That defence entirely failed.  There was no subsidiary argument that I can find that, even if she was accepted as a credible witness, nevertheless upon a true understanding of her evidence, it amounted to nothing more than being in the wrong place at the wrong time, as it is now submitted.  

33.	I agree the appeal must be allowed.

Order:  Appeal allowed.