IN THE ASYLUM AND IMMIGRATION TRIBUNAL 
    
AS (Rule 30.1: when reply required) Liberia [2005] UKAIT 00151

Heard:  	25.10.2005
Signed:  	27.10.2005
Sent out:	3rd November 2005       	  

NATIONALITY, IMMIGRATION AND ASYLUM ACTS 1971-2004

Before:
John Freeman (a senior immigration judge)
Keith Kimnell (an immigration judge)  and
Mrs AJF Cross de Chavannes

Between:  

appellant 

and:
   Secretary of State for the Home Department,
respondent

Miss F McCrae (counsel instructed by Brar & Co, Newcastle upon Tyne) for the appellant
Mrs R Aslan for the respondent 

DETERMINATION AND REASONS

(This case is reported only for the point in the keyword: see § 10.)

This is a case where permission was given the Home Office to appeal from a decision of an adjudicator (Mr RG Handley), sitting at North Shields on 4 May 2004, allowing an asylum and human rights appeal by a citizen of Liberia. Under the transitional provisions of the 2004 Act, the case proceeds as if it were a reconsideration following review by the Asylum and Immigration Tribunal; but only (see r. 62.7 of the 2005 Procedure Rules) on the grounds on which permission was given. These were that the adjudicator’s conclusions were inadequately reasoned, especially as to the availability of internal flight: essentially the argument before us was that they were speculative.
2.	The adjudicator gives the relevant individual history at §§ 6-9. In 2001 LURD rebels had attacked the appellant’s village, killing his parents. He escaped, but returned the following day and was caught; however he was released after a week. On reaching government-controlled territory, he was arrested on suspicion of being a rebel or collaborator, but released after he had given information about the whereabouts of his previous captors. He went back to his uncle’s, where he continued, under pressure, to provide government forces with information about the rebels. Again the rebels started attacking the appellant’s village, and in January 2003 caught him and kept him in a cell till two of them brought him out and told him he was to be executed. Nonetheless he managed to escape, with gunshot wounds, to another village, where he was looked after till his host began to fear for his own safety. In October 2003 the appellant fled by air to Sierra Leone, and thence here in December.
3.	At §§ 44-45 and 47 the adjudicator accepts that history, in the light of the background evidence and the medical evidence before him. There is no difficulty about that; but one is raised by his §§ 46 and 50, which go on to draw conclusions on it. At § 46 the adjudicator begins by accepting the plausibility of the appellant having been detained by government forces as a suspected rebel, with information of possible use to them, having himself been detained by the rebels, if only for a short time; so far there is no challenge to his conclusions, but he goes on
Given that the appellant was working in a plantation he would have had contact with large numbers of people and would be in a position to acquire information which could be passed to Government soldiers. When the rebels started attacking the village again, it is plausible that they would have accepted that the appellant collaborated with Government soldiers. The appellant was asked at the Hearing how the rebels would have known that he was passing information to Government soldiers. The appellant did not attempt to offer any explanation and simply stated that he didn’t know. However he did suggest that they might have received this from relatives or others.
4.	The adjudicator gives his own conclusions on that at § 50:
I accept that in general it would be safe for many refugees to be returned [sc. to Monrovia] However the appellant worked in a large plantation where he came into contact with a large number of people. It is likely that some of those people he worked with were aware that he was passing information to Government soldiers.
The adjudicator does not explain exactly why this should now put the appellant at risk in government-controlled territory; but that conclusion is supported by Miss McRae with reference to background evidence. First there is the extract from Amnesty International’s annual report on Liberia, 25 May 2005, which refers to 
… power struggles within the National Transitional Government of Liberia, which comprised representatives of the former government of Liberia and of the two armed opposition groups, Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL), as well as by internal leadership disputes within the LURD.
5.	Then there are further references in the Human Rights Watch briefing paper of 30 September 2005: both of these reports date from after the adjudicator’s decision, but, as we told Miss McCrae, we were entirely prepared to look at them on the basis that anything they said about the continuing situation was capable of supporting that. What Human Rights Watch say (at pp 9-10 of their paper) is this:
The 1996 peace accord granted a general amnesty to faction fighters for abuses committed “in the course of actual military engagements.” Those responsible for committing some of the worst atrocities during the war were neither punished for their actions nor effectively demobilized. For the next six years at least, former faction fighters – particularly of  [former President Charles] Taylor’s faction, the NPFL – continued to act with impunity and remained a serious impediment to continued peace. Human Rights Watch believes that the failure to adequately [sic]  ensure justice for past crimes had catastrophic consequences for civilians and greatly contributed to Liberia’s failed transition in 1997.
In Liberia currently, the continued existence of the command and control structures of the former factions means that former commanders can mobilize ex-fighters quickly. The continued impunity of those commanders who committed or organized the most serious atrocities during the war could well serve to embolden them and undermine Liberia’s chances of lasting peace and stability.
Since at least 1980, Liberian police officers were reputed to be not only corrupt but also prone to commit criminal acts against Liberian citizens. During both wars, members of the Liberian police, especially those within special elite police units, were frequently involved in the targeting and repression of civilians accused of supporting armed insurgencies.
There is further evidence at p 12 about the number of police officers and applicants negatively reported on for their past conduct by the United Nations Mission in Liberia [UNMIL] human rights section (large), and the number disqualified for human rights abuses by UNMIL’s civilian police component [CIVPOL].
6.	The adjudicator’s conclusions, taken together with his findings on the appellant’s evidence, depend on the assumptions that he would 
a)	while working in the up-country plantation from 2001-03, have had information of interest to Government soldiers; and
b)	would in early 2003 have been suspected by the rebels of collaborating with them; and
c)	would still in late 2005 be the object of their ire and malevolence over it; and
d)	would, despite the current preoccupations of the LURD, incur their active hostility over it in Monrovia.
As both the appellant and the adjudicator acknowledged, there was no evidence at all of how the rebels might have developed their suspicions, which the adjudicator derives from the fact of the appellant working on a plantation, apparently with many others. There is no suggestion that he was interrogated in any way following his capture in the attack on his village in January 2003, so nothing to show that what was apparently a bungled attempt to shoot him was an act of vengeance directed against him personally, rather than simply part of the general notorious savagery of the Liberian civil war. 
7.	We do not see any evidence to support the adjudicator’s conclusions that the appellant would now be at real risk in Monrovia, even from LURD elements now taking part in the transitional government there. Even if there were any basis for them to be ill-disposed to him at the present time, none of the background evidence to which we were referred by Miss McCrae suggests that those elements have had either the liberty or the inclination (in the course of whatever power struggles may be going on) to settle old scores. The Human Rights Watch report is essentially dealing with the failure to deal with past events, not with any present risk.
8.	
When we announced this decision, we asked Miss McCrae whether there were any reason why we should not proceed to determine the appeal (as Mrs Aslan had made clear she would invite us to do). The only further consideration cited by Miss McCrae involved the appellant’s current medical condition. Whereas at the date of the hearing before the immigration judge his gunshot wounds had left him “… with some residual disability and some slight mobility problems” (see letter Dr Olufunwa 14 January 2004), for which a reference to an orthopaedic surgeon had been recommended, this had now taken place. The result, so far, was a letter from Mr RJ Montgomery (a consultant orthopaedic surgeon, though he does not give his qualifications), which Miss McCrae faxed down to us at our request, saying the appellant was
…at present undergoing lengthy and rather complicated corrective surgery …It would certainly make no sense at all to send him home half way through his treatment. Hopefully at the end of the treatment he will have a limb that is back towards its normal length and alignment. It will be weak to start with and it will be a rather long and hard job to try and regain the range of movement in his knee, which has become rather stiff. I would expect therefore a fairly lengthy course of physiotherapy after the external fixator frame has been removed, which will probably be towards the end of the year or early next year.
9.	The result of that process seems likely to be that the appellant may be left with some limitations on his use of his leg, but that they are unlikely to be significant, provided he is allowed to complete that course of physiotherapy. Clearly there can be no question of removing him before the frame is removed, and we do not think any humane Home Office would do so, as long as he is co-operating with regular physiotherapy advised by a consultant surgeon: so much for the practical aspect.
10.	On the jurisprudential side, the appellant’s medical condition was not relied on before the immigration judge as showing that it would amount to “inhuman or degrading treatment” to return him to Liberia; but simply on the credibility (which was accepted) of his account of how he got away from the rebels. If the former were to be treated as an independent reason for affirming her decision, then in our view it needed to have been raised no later than five days before the hearing, by way of reply under r. 30.1 of the 2005 Procedure Rules (required where a party “… contends that the Tribunal should uphold the initial determination for reasons different from or additional to those given in the determination …”. 
11.	It follows that the appellant’s appeal is dismissed, subject to the note of caution about when he ought to be removed. If his treatment does not progress as expected, it will be open to him to make a further application to the Home Office.
The original Tribunal made a material error of law and the above decision is accordingly substituted.
 John Freeman
approved for electronic distribution