UK - Court of Appeal, 22 February 2011, PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132

Country of Decision:
Country of Applicant:
Date of Decision:
22-02-2011
Citation:
[2011] EWCA Civ 132
Court Name:
Court of Appeal
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Headnote: 
This case concerned the manner in which Country Guidance case law is reported in the UK, particularly with reference to the reporting of the headnote and, as in this case, the inversion of the guidance. The factual consideration of this case considered whether there was sufficient protection for victims of human trafficking.
Facts: 
The applicant was a victim of human trafficking. Her appeal against the refusal of her asylum claim was allowed by a single Immigration Judge. The Secretary of State for the Home Department appealed and was granted permission for the case to be reconsidered. On reconsideration a different Immigration Judge dismissed the appeal. The applicant then appealed to the Court of Appeal which remitted the appeal to the Immigration Appeal Tribunal. The Court of Appeal expressly preserved the original findings that PO was at risk of persecution in her home area, and that she was a member of a particular social group and other findings quite specific to the applicant.
 
The Tribunal designated the appeal as a county guidance case and having heard extensive evidence, issued a country guidance decision PO (Trafficked women) (Nigeria) CG [2009] UKIAT 0046.
 
Both parties relied on expert evidence. The Tribunal required the applicant’s expert to be available for cross examination and made this a condition of receiving her report. The applicant’s expert gave evidence from Nigeria over a telephone and during her evidence stated that the applicant would not be admitted to a shelter because she now had a baby. In response, the Secretary of State’s representative having emailed her expert, tendered the emailed reply, which contradicted the applicant’s expert.
 
The applicant’s representative objected to the reception of the email, but also served a further report from her expert which maintained the position in relation to facilities for women with babies and which referred to independent supporting evidence.
 
The Tribunal dismissed the applicant’s appeal finding that the applicant and her child would receive adequate care in a shelter in her home area and that as a victim of an individual rather than a gang she was not in an enhanced risk category. In the alternative the Tribunal held that the applicant could reasonably relocate to a different part of Nigeria.
 
The applicant appealed again to the Court of Appeal on two grounds. The first was on the general country guidance on shelters in Nigeria and to some extent raised a question of fairness and the second ground concerned the application of the country guidance to her case.
Decision & Reasoning: 
The court noted that the Tribunal relied on the emailed evidence, which it had not permitted to be the subject of cross examination, despite requiring the applicant’s expert witness to be subject to cross examination. It also noted that the Secretary of State’s representative had chosen not to cross examine the applicant’s expert about her second report and that the second report was supported by material from independent sources.  Given the last point, this was not simply a matter of fairness. The appeal was allowed on the first ground.
 
The second point is of more general significance. Country Guidance determinations by their nature are often long and complex and much evidence is received. The Tribunal in this case provided a head note, which was not an accurate summary of the Tribunal’s reasoning. The head note placed a burden on the applicant, which was significantly absent from the guidance at paragaph 192 of the country guidance.
 
"192… .It must always be remembered that within Nigeria there are gangs of people traffickers operating who generate enormous sums of money from their activities. The evidence seems to us to be clear that where a victim escapes the clutches of her trafficker before reaching the target earnings, then the traffickers are very likely to go to extreme lengths in order to locate the victim or members of the victim's family to seek reprisals.
In the absence of evidence that a trafficked victim has been trafficked by an individual, it should be borne in mind that it is likely that the trafficking will have been carried out by a collection of individuals, many of whom may not have had personal contact with the victim."
 
The error of law was to misapply the Tribunal’s own guidance to the preserved findings of fact.
Outcome: 
The appeal was allowed and the country guidance status of the Tribunal’s decision was withdrawn.
 
The applicant had been granted indefinite leave to remain before the hearing before the Court of Appeal.
Observations/Comments: 
The fairness points and issues around the engagement of Art 4 of the ECHR were not explored but flagged up for future consideration.

The second Judgement of Carnworth J, who is currently President of the Tribunal commented unfavourably on the length of the Tribunal’s determination, advising that it was neither necessary or helpful to set out in full detail  or to quote extensively from the evidence “save as is required to explain the Tribunal’s findings and reasoning on the material points.”
 
He also supported the Tribunal reporting committee’s practice of drafting a headnote but suggested that a review may be necessary, with the panel judges themselves drafting the summary of the guidance.
 
Finally Carnworth LJ appended the paragraphs of the Tribunal determination which he considered safe to stand as interim guidance.  
 
The Tribunal issued a determination of excessive length and complexity. The brief guidance, (which is annexed to the Court of Appeal judgement), was misrepresented in a headnote which was then applied to the facts of the applicant resulting in an injustice to her and potentially many others.

The uneven approach of the Tribunal towards the expert witnesses was also a cause for concern. All the fairness issues were not fully examined by the court and remain to be determined in other proceedings.  The court did repeat the concern often expressed in the higher courts that the Home Office and the lower Tribunals fail to apply “anxious scrutiny” to asylum and human rights cases.    
Other sources cited: 
Council of European Convention on Action Against Trafficking of Human Beings (16th May 2005).
Case Law Cited: