KH

Heard at Field House

on  17 January 2003

[2002] UKIAT 00070 E (Georgia)

IMMIGRATION APPEAL TRIBUNAL

                                                                                Date Determination notified:

                                                                                          10.09.03

Before:

Mr D K Allen (Chairman)
Mr F Jamieson

APPELLANT

and

Secretary of State for the Home Department

RESPONDENT

RULING ON PRELIMINARY ISSUE

1.	The appellant appeals with leave to the Tribunal against the determination of an Adjudicator, Mrs A K Simpson, who dismissed his appeal against the respondent’s decision of 27 June 2000 issuing directions for his removal from the United Kingdom, asylum having been refused.

2.	The appeal was listed for hearing before us on 17 January 2003.  Miss F Webber for A S Law appeared on behalf of the appellant, and Mr M Blundell appeared on behalf of the respondent.

3.	On this occasion we were concerned solely with the preliminary issue of whether Miss Webber could expand or extend her grounds of appeal.  We have benefited from very helpful submissions from both representatives in this regard.  At the time we heard the submissions we considered that it would not be appropriate to deal with the matter immediately and therefore adjourned the hearing to enable us to provide a preliminary ruling on this particular matter as a consequence of which the appeal could take whatever course commended itself to the representatives in the light of our ruling. 

4.	The Adjudicator found the core elements of the appellant’s claim to be credible.  He claimed to be at risk of persecution by the Georgian authorities because of the Zviadist activities of his brother and his attempted assassination of President Eduard Shevardnadze.  The Adjudicator considered the objective evidence in this regard and concluded that the claim was not made out.

5.	The appellant also claimed that if he were to be returned to Georgia he would be at substantial risk of persecution by ultra orthodox extremists.  The Adjudicator considered the objective evidence and concluded that the ill-treatment feared by the appellant from individual members of the ultra orthodox extremists was not of sufficient severity as to cross the threshold of persecution, and additionally concluded that there was a sufficiency of protection available to the appellant from the state authorities.  At paragraph 45 of her determination she stated the following:

“Religious intolerance and ill-treatment does not cross the threshold of severity and persecution, even if taken cumulatively, unless there are particularly strong and credible elements.”

6.	Leave to appeal was sought essentially on two grounds.  The first of these, under the heading “Definition of Persecution” challenged the Adjudicator’s finding that the feared ill-treatment was not sufficiently severe to cross the threshold of persecution.  It was argued that the finding that for ill-treatment on grounds of persecution to cross the threshold of severity into persecution required there to be particularly strong and credible elements implied the need for stronger elements of such a claim than those involved in persecution for any other Convention reason.  It was argued that the expert evidence before the Adjudicator from Robert Chenciner had not been properly taken into account and that the Adjudicator had failed to take into account the subjective element when considering risk of persecution.  It was also argued that the Adjudicator had adopted an excessively narrow interpretation of what comprised persecution.

7.	The other ground was concerned with sufficiency of protection.  It was argued that the Adjudicator was in error in finding that there was a sufficiency of protection for the appellant from the Georgian State authorities and set out reasons for this, in part quoting from the objective evidence from such sources as the Human Rights Watch Report and the US State Department Report.

8.	Leave to appeal was granted in a determination promulgated on 1 November 2002.  In the light of the argument as it is set out before us we consider that it is proper to quote this in full.  

“This is an application for leave to appeal from a decision of an Adjudicator (Mrs A K Simpson), dismissing an asylum and human rights appeal by a citizen of Georgia.  Dealing so far as necessary with each of the grounds of the application which raises any reasoned complaint against the adjudicator’s decision

1	It is not clear why the adjudicator should have said (paragraph 45) that “Religious intolerance and ill-treatment does not [sic] cross the threshold of severity into persecution, even if taken cumulatively, unless there are particularly strong and credible elements”; whether she meant that as expressing a higher standard than for other types of claim, or how far it affected her decision.  The Tribunal can consider these points.”

9.	Miss Webber put before us a skeleton argument which deals not only with this preliminary matter but also with the substantive matters, and also attached various authorities.  She explored these in further detail in her submissions before us.  The main reason for Miss Webber wishing to expand the grounds of appeal or perhaps more precisely we should describe it as relying on an actual ground of appeal in relation to which leave was not granted was that she wishes to argue with the sufficiency of protection point.  One of the points she made to us was that if the Adjudicator’s findings on sufficiency of protection cannot be reconsidered by the Tribunal then it nullifies the effect of the grant of leave on the other point.  There was therefore on the face of it particular significance in Miss Webber being able to argue this point if she is right that the essence of any argument before the Tribunal is precluded by the restriction, if it is a restriction, on the grant of leave.  

10.	A starting point is the very terse provision in rule 21 of the Immigration and Asylum Appeals (Procedure) Rules 2000.  This states as follows:

“The grounds of appeal may be varied by the appellant with the leave of the Tribunal. 

10.	This provision was considered by the Tribunal in its determination in Wondemagegn [2002] UKIAT 05496.  Again it is appropriate to quote the terms of the grant of leave in that case.

“In my judgment the Adjudicator was clearly correct to proceed to hear the appeal.  There is nothing in the grounds or material enclosed to cause me to question his assessment of credibility or his findings in relation to the asylum appeal.  It is however arguable that he misdirected himself in relation to the human rights aspect of the appeal.  Any representative should be fully prepared to argue that aspect before the Tribunal.  Leave to appeal is granted as above stated”.

11.	Before the Tribunal Counsel sought to renew orally the application for leave to appeal in respect of the first of the grounds of appeal considered by the Vice President who granted leave and it was dealt with as a preliminary issue.  The Tribunal was of the view in that case that rule 21 applied to variation of grounds submitted in an application for leave in respect of which leave has been granted and the word “varied” did not cover reinstatement of grounds which had been rejected in a determination considering the application for leave.  The Tribunal saw a clear difference between variation and reinstatement and considered that rule 21 made it quite clear that grounds which had been accepted by the Tribunal in granting leave might be varied by the appellant with the leave of the Tribunal but the jurisdiction of the Tribunal did not extend to reinstating grounds that had already been rejected by a previous Tribunal in considering the application for leave.  The Tribunal was of the view that if Parliament had intended to give the Tribunal such jurisdiction this would have been expressed in the rules, and it had not been.

12.	Miss Webber took two alternative approaches to this determination.  On the one hand she argued that in Wondemagegn leave was specifically refused on a particular ground, whereas in the instant appeal the Vice President had seen merit in ground one and did not necessarily go on to consider the other grounds.  She also made the point that if it were right that rule 21 allowed for variation rather than reinstatement as indicated by the Tribunal in Wondemagegn then this effectively benefited the lazy representative who had not put a particular matter in his grounds of appeal as opposed to the industrious representative who had given thought to matters and yet had had a particular matter ruled out expressly when applying for the grant of leave.   

13.	Mr Blundell argued that it would be odd and disrespectful to suggest that the Vice President who granted leave in the instant appeal did not consider ground two albeit that he did not refer to it.  He argued that the Vice President had considered it and decided to refuse leave on it.  The Tribunal was referred to the introduction in the grant of leave and the reference to “any reasoned complaints” which indicated that the only matter in relation to which the Vice President considered there was merit was the specific matter in relation to which he granted leave.

14.	We consider that there is force to Mr Blundell’s contention in this regard.  It seems to us on a proper reading of the grant of leave that the Vice President considered that the only matter in relation to which he granted leave was the only matter raising any reasoned complaint against the Adjudicator’s decision.  It must be taken by implication therefore that he did not consider that ground 2, if we may so describe it, had merit. In that sense, therefore, the distinction which Miss Webber sought to draw from her first line of argument between the situation in this case and that in Wondemagegn is not one of substance.  It is true that the Vice President did not expressly refuse leave in relation to ground 2, but we consider that it is clear that he considered it and did not consider it appropriate to grant leave on that point.  

15.	Miss Webber’s alternative submission was that Wondemagegn was wrong.  One point that she made concerned the decision of the Court of Appeal in Akewushola [2000] 2 All ER 148 and the judgment of Sedley LJ where he stated as follows:

“For my part I do not think that, slips apart, a statutory Tribunal – in contrast to a superior Court – ordinarily possesses any inherent power to rescind or review its own decisions.”

At paragraph 16 of Wondemagegn it is clear that the Tribunal regarded this as a significant matter in leading it to conclude as it did that it had no jurisdiction to set aside or vary the determination of the Tribunal in granting leave.  Miss Webber argued in her skeleton argument and before us that the remarks by Sedley LJ in Akewushola were not meant to apply to a situation such as that before the Tribunal, in that the “decision” was the grant of leave, not the specific reasons for grant, which the procedure rules expressly allow the Tribunal to vary.  

16.	The decision in Akewushola was a decision by a Vice President of the Tribunal, sitting alone, to rescind the determination of a Tribunal chaired by him which had determined an appeal subsequent to which the Chairman was informed that an adjournment application had been made in connection with the hearing before the Tribunal and had been entirely overlooked.  We consider that there is force in Miss Webber’s point in this regard.  The decision which was purportedly rescinded in Akewushola is different in kind from any amendment to or amplification of grounds of appeal.  We consider that Miss Webber is right to say that the decision is the grant of leave rather than the reasons for that grant.  As she pointed out, the grounds of appeal may be varied by the appellant with leave to the Tribunal under rule 21.  

17.	Miss Webber also prayed in aid the decision of the Court of Appeal in Kulek [2002] EWCA Civ 1408 which emphasised the point contained in the definition section of the Immigration and Asylum Appeals (Procedure) Rules 2000 at paragraph 2 providing a definition of the word “determination” as meaning the decision of the Appellate Authority to allow or dismiss an appeal and the reasons for that decision.  As had been pointed out by the Court of Appeal at paragraph 28 in that judgment, the determination of the result of an appeal is by no means the same thing as determination of any issue arising on the appeal, and Miss Webber concluded from this that although the Tribunal could not and should not rescind a determination it could review the grounds upon which it was taken.  

18.	To a significant extent the problems that have arisen in this appeal arise from the relative opacity of the wording of rule 21 of the Procedure Rules.  In interpreting it as we are required to do we are among other things conscious of a further point made by Miss Webber concerning the need for a purposive construction of the rule in accordance with the need to give it effect to the intentions behind the Refugee Convention.  She argued that a meritorious ground should not be precluded from being argued in a substantive hearing before a Tribunal that could have a significant effect on the ability of an appellant to argue that he faced a real risk on return on account of a particular matter raised in that ground.  

19.	We do not consider that rule 21 has the effect of precluding the opening or reopening before the Tribunal of a matter in relation to which leave has not been granted by a Vice President when giving leave.  It seems to us that on a proper construction of rule 21, provided that a matter has indeed formed part of the grounds of appeal when leave is sought, that the Tribunal has a discretion as to whether or not it will enable the matters before it as defined by the grant of leave to be varied to that extent.  We are conscious of the point made by Miss Webber that it would be unfortunate if the alternative interpretation of this rule effectively benefited the idle representative who brought a point afresh to the Tribunal on the day of the hearing as opposed to the more conscientious representative who had argued that point in his or her grounds and had it refused.  Clearly, there can be no assumption properly made by or on behalf of an appellant before the Tribunal that the Tribunal will be prepared to entertain argument on a point in relation to which leave had been refused or not expressly granted.  The assumption must be that if leave has not been granted on a matter as clearly on the one hand if, as in Wondemagegn, it has been expressly excluded, or as if in the appeal before us by implication it was not regarded as meritorious, then that appellant will face an uphill struggle in persuading the Tribunal at the substantive hearing that the point has merit.  We do not consider that there is anything in the authorities we have cited or in the wording of rule 21 that precludes us from reaching the view that either in a case where a matter is specifically excluded by the Vice President granting leave or by implication excluded as not being specifically dealt with, that the matter can nevertheless be ventilated before the Tribunal at the substantive hearing.  Representatives must, however, be aware of the standard directions, and representatives who arrive at an appeal hearing without giving notice of their intention to seek to raise a point in this sort of manner are likely to find the Tribunal unsympathetic to such an attempt.  With some trepidation we find ourselves in disagreement with the conclusions of the Tribunal in Wondemagegn, in that we do not consider that what we are proposing involves the setting aside or variation of a determination of another Tribunal bearing in mind the points made in Kulek, nor do we interpret the reference in Akewushola, as we have stated above to apply to a grant of leave rather than to the particular reasons for that grant.  

20.	The effect of this ruling is that it is open to Miss Webber to seek to persuade us that ground two is properly arguable before us.  This appeal will accordingly be listed for hearing to enable her to make that argument and Mr Blundell to challenge it if he so wishes, and as a consequence of our ruling on that matter the appeal will either proceed with us hearing that point or if we are against Miss Webber she will be required to make such argument as she can on ground one.  We understood her in her submissions to indicate that that ground would not get her very far if she were not able to argue ground two, but that is a matter for her at the renewed hearing.  

D  K  Allen
Vice President