Case No: C5/2007/1069
Neutral Citation Number: [2007] EWCA Civ 977
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL 
[AIT No. AA/09797/2005]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 21st August 2007

Before:

LORD JUSTICE SEDLEY
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Between:

DG (IVORY COAST)	
Appellant
	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent

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Mr P Lewis (instructed by Messrs Fisher Meredith LLP) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment

Lord Justice Sedley:
1.	The applicant, represented today by Mr Lewis, lost her asylum and human rights appeal before Immigration Judge Bircher.  She sought reconsideration but this was refused on the mistaken ground that the application was out of time.  Silber J therefore remitted the case for reconsideration.  Senior Immigration Judge Warr, in what was clearly intended to be a first-stage reconsideration, found no legal flaws in the Immigration Judge’s determination and dismissed the challenge to it.  

2.	I have read the Immigration Judge’s decision with care and, in the event, concern.  It is a harsh one, finding effectively everything told to her by the applicant to have been implausible or invented.  Pill LJ, refusing permission to appeal on the sight of the papers, I think recognised this but considered that Senior Immigration Judge Warr had nevertheless been entitled to reach the conclusion he did.  Mr Lewis’s case is, in effect, that Senior Immigration Judge Warr was wrong to reach the conclusion he did.  This is because of a number of factors.  

3.	The Immigration Judge’s adverse findings are in part based upon the absence of the originals of certain important documents, and in part upon the failure to call two potentially important witnesses or explain their absence.  She also finds implausible, without further explanation, things which it is cogently submitted by Mr Lewis are perfectly plausible.  She holds against the applicant, as being an embellishment of her case, the late disclosure of a rape which, Mr Lewis submits with some force, the applicant had never claimed as part of her case for asylum; it was simply that her pregnancy had been caused by a male relative who had raped her.  There was also the total dismissal, without giving any evaluation of it at all, of the written evidence of the two witnesses who were not being called.  

4.	Although he continues to rely upon these challenges, Mr Lewis has, at this very late stage, and because his instructions have only recently come to him, introduced something which was not put to the Immigration Judge or to Silber J or to Senior Immigration Judge Warr: namely that the applicant, who is francophone and was unrepresented at the original hearing, had been let down by an organisation -- a bona fide organisation but with limited representation rights -- known by the acronym AFRIC (The African Francophone Resource and Information Centre) to whom she had paid £300.  They had undertaken to prepare her witness statement and a full bundle of documents, both of which they did using originals with which the applicant had supplied them; but, contrary to what she says she had been led to believe, nobody from AFRIC turned up to represent her at the hearing, and she also now asserts that she was told by AFRIC that neither of her witnesses need attend the hearing.  This she also says she told the immigration judge, although there is no record of it in the immigration judge’s determination.  

5.	At the very end of the immigration judge’s determination, in paragraph 31, there is what is capable of being regarded as a finding in favour of internal relocation, but it is sketchy and unspecific and nowhere features in the conclusions which follow as a discrete finding.  I accept Mr Lewis’ submission that it would not be right to let this application go off upon any such suppositious finding or holding.  

6.	I have to say that I am influenced in the decision I have come to by my unease at the entire approach and tone of the immigration judge’s determination.  It seems to me at present so uniformly dismissive of every aspect of the applicant’s case as arguably (I go no further at this stage) to call its objectivity in question.  It is for that reason as well as for the specific reasons that I have touched upon that I propose to grant permission to appeal in this case.  

7.	That said, the appeal must of course depend, in the first instance anyway, upon the particularity of Mr Lewis’s criticisms of its fact findings.  These, however, seem to me to be sufficiently numerous and sufficiently well-founded to make it possible that the court would conclude that the errors of fact are such as to undermine the conclusions at which the determination arrives.  

8.	In addition I would expect the Treasury Solicitor as respondent to co-operate in trying to establish by common consent what it was that transpired between the appellant, as she will now be, and the organisation AFRIC, and why it was that she came before the immigration judge without her witnesses.  There are enormous difficulties in the way of the admission of these late statements, absent agreement about their factuality; but it would be in the best traditions of the Government Legal Service not to take a stand upon such a point if, upon proper enquiry, they are satisfied that any of these matters are capable of going to the justice received by the applicant and are correct.  

9.	On that footing, Mr Lewis, you have permission to appeal.

Order: Permission granted.