PO (Nigeria) v Secretary of State for the Home Department – case note

PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132

Background

PO is a citizen of Nigeria and a victim of human trafficking. She was brought to the UK by a man who promised her financial security that would enable her and her aunt – her only family except for a child born in the UK – to escape from poverty in Benin City. It was only after PO  arrived in this country that she discovered his true purpose: to use her for his sexual gratification and to exploit her for prostitution.

PO was required to earn and hand over large sums of money. Her treatment was described by the Court to be ‘horrific.’ She escaped in 2005 and was soon arrested by the Police to whom she explained her ordeal. She was then handed over to the UKBA and it was at that stage she applied for asylum.

After protracted proceedings in the tribunal and higher courts PO’s case was identified as suitable to give ‘country guidance’ (CG). Such decisions are to be treated as “an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the Tribunal…” They are therefore binding upon the tribunal in similar cases subject to a material change of circumstances in the country in question, or material differences on the facts.

At the CG hearing in this case, the tribunal held that PO could secure shelter on return, and was not at enhanced risk from a gang (as opposed to an individual). By the time the case reached the CA, the SSHD had granted PO leave to remain.

Shelter

The tribunal hearing took place on three days over three months. PO’s expert was cross-examined via a telephone link with Nigeria. She expressed the view that PO would not be accepted in a shelter because she had a baby.

The SSHD’s representative secured email evidence to the contrary. PO objected to the reception of this email as evidence but her expert had already filed a detailed addendum report together with other country evidence.

The tribunal admitted the email and the latest expert report on condition that the expert was made available for further cross-examination by telephone link. The tribunal placed significant reliance on the email. Recalling another case, the Court affirmed that tribunals must apply “anxious scrutiny” to asylum cases, not least when considering background evidence in a country guidance case, and where the safety of a child was concerned.

The Court held the email to be a flimsy basis for the tribunal’s conclusions because ‘its content was hotly contested’ and because the author was not permitted to be the subject of cross-examination even though availability for cross-examination was imposed as a condition for receiving the expert’s detailed report in response. It was also significant that the HOPO chose not to challenge that report by cross-examination and that it was supported by recent material from objective sources.

The CG Headnote

The Senior President of Tribunals, Carnwarth LJ, considered that ‘the present case suggests that there may be a need to review the current practice of the tribunal giving country guidance.’

He emphasized two related points. First, lengthy decisions (90 pages or so in this case) tend to detract from the clarity of its exposition. He said it is  ‘neither necessary nor helpful to set it out in full detail, nor to include extensive quotations, save so far as is required to explain the tribunal’s findings and reasoning on the material points.’

Second, he commented on the ‘headnote’ which is intended to provide a convenient shorthand summary of the effect of the decision. He said that whilst useful, ‘it is important that it should accurately reflect the relevant guidance contained in the determination itself.’

On the latter  point, the Court held there to be a ‘mismatch’ between the guidance given on gangs in Nigeria and (a) the way in which the tribunal applied the guidance to the case before it, and (b) the way in which the guidance is summarised by the tribunal in its ‘headnote.’ Although PO had leave, it was in the public interest to identify and facilitate the correction of the discrepancy because it led to not only a gloss on the guidance but imposed an inappropriate burden that honest and meritorious victims would often be unable to discharge.

Analysis

Review of CG practice in the tribunal is welcome. This is not the first time the Court of Appeal has found the tribunal to have got things wrong. In FK (Kenya) the Court similarly held that in giving guidance the tribunal failed to consider the case before it with ‘sufficient specificity.’

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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