R v. Secretary of State, Ex parte Ejon
- Author: High Court (Queen's Bench Division)
- Document source:
-
Date:
9 October 1997
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE EJON
Queen's Bench Division
Sullivan J
9 October 1997
'Seven years on, it was only with the greatest difficulty that Ms Ejon was able to give an account of the real nature of the torture she fled. Many rape survivors find it extremely difficult to talk about their experience. For those still traumatised by rape, talking can be too painful to contemplate. Even when she was surrounded by friends and family and in a supportive environment, it may be impossible for a woman to describe what happened to her, or when she does speak, there may be particularly painful aspects of what happened that she still is unable to articulate. Research shows that rape is even more difficult to speak about than other traumatic experiences (see Appendix II), because of the intense feelings of shame, guilt and hatred which are a common feature of rape trauma syndrome, and because of the victims' fear that instead of receiving sympathy they will be held responsible for the attack, or condemned as worthless and soiled, and be ostracised. Unfortunately such fears often turn out to be well-founded. We have found that women who were raped many years ago have in some cases told no one at all until they were specifically asked about this violence, in confidence, by an organisation which specialises in helping rape survivors or victims of trauma. In England, only one in 12 rape survivors report rape to the police or other authorities. Women raped by soldiers or others in authority, over a long period of time, and in circumstances of severe stress, with their lives threatened at every moment, are even less likely to report it, or be able to talk about it to other people, especially to those in authority.
It is even more difficult for young women to speak about rape, because of greater embarrassment, shame and inexperience in speaking about sexual matters. Our research showed that less than half of those who were raped or sexually assaulted when aged 16-19 never told anyone about it at the time. In addition to the traumatic nature of the events it must be remembered that Ms Ejon was still a teenager, from a rural society, and at the time of the first rapes had no sexual experience at all. She was completely unused to discussing sex. Recounting what happened, especially to strangers or those in an official capacity, or in an unfamiliar environment, would have been particularly difficult for her.
The report concluded:'Conclusions:
The deep distress and intense pain which Ms Ejon showed during the course of several interviews left us in no doubt about the horrific violence she has undergone. The real nature of the persecution which forced her to flee for her life has only begun to be uncovered in our interviews. This is not unusual given the trauma she experienced as a result of rapes, brutality and humiliations she suffered, together with the insurmountable pain of speaking of her ordeal. She is suffering profoundly from rape trauma syndrome.
In our many years' experience with rape victims we have not yet met anyone who has suffered such appalling sexual violence and who has witnessed so much pain and agony over a longer period of time as Ms Ejon has. The interviewer herself felt deeply upset at the obvious stress and suffering of Ms Ejon when recalling her ordeal.
Her responses were consistent with a severe degree of trauma, which we normally see only when rapes are repeated and prolonged, happen early in life, or are for some other reason exceptionally devastating.'
The medical evidence confirmed that she had at some stage suffered violent sexual abuse on an unprepared young woman, Dr Mackinnon diagnosed chronic post-traumatic stress disorder and explained in his report that it was a feature of her disorder that she would have an 'inability' (his word) to disclose information as to the causes of the trauma. In effect, she would be persistently seeking avoidance of any stimuli associated with it. There was also information of a more general kind from the UNHCR as to the reasons why refugees may be reluctant to report incidents of sexual violence against them. The fresh information, less the psychiatric report, was sent to the Secretary of State, who responded by letter of 24 September 1996. These proceedings were launched and, having had sight of the material within the application (including the psychiatric report), the Secretary of State responded to the judicial review challenge in a letter of 29 November 1996. Turning first to the letter of 24 September 1996 that sets out the terms of para 346 of the Immigration Rules in a way which is not contentious:'Paragraph 346 of the Immigration Rules states that the Secretary of State will compare further representations with a claim that has been rejected. The renewed claim will be treated as a fresh application if it is sufficiently different that, in his opinion, there is a realistic prospect that the claimant will meet the requirements of the rules for granting asylum. Such a prospect will normally only be realistic if the further representations alter the fundamental basis of the claim. The Secretary of State is entitled to disregard any material which in his opinion is not significant, or which is not credible, or which was previously unavailable.
The Secretary of State has determined that your representations do not constitute a fresh claim. He considers that the renewed claim repeats the claim advanced previously which has been determined.
The Secretary of State considered the fresh information submitted in support of Miss Ejon's claim, he notes that medical reports support her claim that she has been the victim of repeated rape attacks over a period of 2 years and that she had been unable to disclose these attacks as a direct result of the trauma she experienced. The Secretary of State is aware that Miss Ejon has had ample opportunity to present the Secretary of State with all available evidence relating to her asylum claim. He is also aware that she has significantly varied her account during the consideration process, embellishing her story at each successive interview.'
The remainder of the letter dealt with the situation in Uganda and whether there was a compassionate case on medical grounds. In the letter of 29 November 1996, the Secretary of State says that he is familiar with the tests set out by the Court of Appeal in R v Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768 and does not accept that he has considered the matter incorrectly within the terms of that judgment. The letter then continues:'In the light of the several different versions of her experiences given by Miss Ejon, the Secretary of State is not prepared to accept the latest account set out in the report by Women Against Rape at p 23. The Secretary of State does not consider it credible that a person claiming to fear persecution and to be in need of international protection would keep silent for nearly 7 years from her arrival in this country about traumatic events which are now said to be central to her asylum claim.
No mention was made of Miss Ejon having been raped until 22 July 1996, despite her having been interviewed in depth about her claim, which as you will know was refused on 11 February 1994. Her appeal to a special adjudicator was dismissed on 3 August 1994. Your client sought a judicial review in 1994 of the refusal of the independent appellate tribunal to grant leave to appeal against the special adjudicator's determination, but that was withdrawn at court on 14 December 1994 when the Secretary of State agreed to consider further representations. There was a second application for leave for judicial review, challenging the Secretary of State's decision on those representations, but that was dismissed by Buxton J on 22 July 1996. It was only then that you submitted representations that Miss Ejon had been the victim of repeated rapes by soldiers of Uganda which led to her coming to this country.
The Secretary of State has taken note of the report of Dr Mackinnon and his conclusion that Miss Ejon is suffering from post-traumatic stress disorder. It does not appear that Dr Mackinnon, in accepting your client's latest account, was provided with detail of the previous inconsistent accounts given by Miss Ejon, as set out in the special adjudicator's determination, or was told of the special adjudicator's conclusion that your client's account lacked credibility. Dr Mackinnon states that he has no doubt that the threat of death to your client persists and would almost certainly take place if she were to return to Uganda, but he does not state on what evidence he bases this conclusion Dr Mackinnon also considers that the failure of Miss Ejon to mention these events previously was because of efforts to avoid thoughts or feelings or conversations associated with her experiences and a feature of this disorder is an inability to disclose relevant information. However, Miss Ejon was able to give graphic detail of the killing of her boyfriend Samakulla by her father when interviewed in connection with her asylum claim on 14 May 1992. On that occasion she said: "My father came inside the house and stabbed my boyfriend with a knife when he saw my boyfriend's army uniform, dragged him outside, cut my boyfriend's throat and wiped the blood from the knife".
The Secretary of State does not accept that Miss Ejon was capable of giving detail such as that in May 1992 but incapable of giving the account which she now has and he considers that the latest version of events set out in the report by Women Against Rape has been put forward in an effort to prevent her being removed from this country. In the circumstances, the Secretary of State is not prepared to attach significant weight to the report and conclusions of Dr Mackinnon.
In the Medical Foundation report by Dr G. Hinshewood, there is reference to perineal scarring consistent with very violent sexual abuse of an unprepared young woman. The Secretary of State is prepared to accept your client may have suffered some degree of sexual abuse but he does not accept this occurred in the manner put forward or that this gives rise to a well-founded fear of persecution, under the Convention.
Having dealt with the position in Uganda, the Secretary of State concluded that Miss Ejon had 'significantly varied her account throughout the consideration process' and that her story 'had been embellished on each occasion, at interview and by the numerous representations submitted'. He concluded that he 'doubted the veracity of any statements made and that Miss Ejon's credibility has been seriously undermined'. He therefore concluded that she had failed to demonstrate a well-founded fear of persecution for a Convention reason. I should add that the Secretary of State dealt with the position in Uganda because it was being urged on the applicant's behalf by way of background that the situation in Uganda had worsened as a result of the activities of the Lord's Resistance Army ('LRA'). The way in which the applicant's claim for asylum had been put in 1994 is summarised in a letter from the Home Office dated January 1994. The gist of the claim was that the applicant feared persecution because of her association with her father, who had been active in the rebel cause. Soldiers looking for her father had arrested, beaten and questioned her. She had fled into the bush, eventually come to a Christian mission and left that mission disguised as a nun in order to avoid (as it was put at that stage) being arrested, raped and taken into the army. Her father stabbed Samakulla (described at that stage as her 'boyfriend') and she was fearful of reprisal from Government troops. In essence, in 1994 the Secretary of State rejected the claim because of what he saw as various discrepancies and improbabilities that were contained within it. He concluded it was not credible and also that the situation in Uganda had in any event improved. Those conclusions were accepted by the special adjudicator in rejecting the claimant's appeal in August 1994. It will be noted that although the claimant had alleged a degree of mistreatment by way of beating (which was subsequently explained during the appeal process as 'slapping'), there was no suggestion that she had been raped or indeed that there had been any really serious violence done to her. Mr Supperstone refers to a decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Coskun Boybeyi [1997] INLR 130 which, whilst it endorses the principles set out in Onibiyo points out the difficulty occasioned by the Secretary of State's role as judge of two questions: first, whether the new claim is indeed a fresh claim for asylum; and secondly, if so, whether it ought to be acceded to or rejected. In the course of his judgment in Boybeyi, Nourse LJ referred to the then Master of the Rolls' judgment in Onibiyo. He then drew attention to the distinction between the apparent credibility of an applicant's new evidence and whether in fact that evidence was credible. He went on to say that in that case counsel for the Secretary of State had submitted that the Secretary of State was not bound simply to accept the applicant's evidence as it stood, and he was, for the purpose of deciding the first question, entitled to make inquiries of his own. Nourse LJ accepted that as a general proposition, and went on to say (at 136C):'But I repeat that the evidence on which he relied here does not displace the apparent credibility of the applicant's evidence. It is also important to emphasise that the requirement embodied in the acid test is that there should be a realistic prospect that a favourable view could be taken of the new claim. That sort of test is very familiar to all of us. It is not a very high test.'
In Onibiyo, the Master of the Rolls (as he then was) had said, in considering the question of fresh claim (at 783B):'It was accepted for the applicant that a fresh "claim for asylum' could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. There had, counsel acknowledged, to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. If the fresh claim depended on new evidence, then it has to satisfy tests, analogous to Ladd v Marshall [1954] 1 WLR 1489, of previous unavailability, significance and credibility.'
Having considered certain dicta of Stuart-Smith LJ in Manvinder Singh v Secretary of State for the Home Department (unreported) 8 December 1995, the then Master of the Rolls said this:'There is danger in any form of words which can too easily be regarded as a binding formula. In Manvinder Singh... Carnwath J held that a change in the character of the application was required. I am content with that statement, provided it is not taken to mean that there must necessarily be a change in the nature of the persecution said to be feared. The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim.
The reference to the Ladd v Marshall test of unavailability involves a consideration of the question whether the evidence now sought to be produced could have been obtained by reasonable diligence at an earlier stage. Mr Supperstone submits that, applying the acid test, the new evidence relating to the rapes (and, as a subsidiary point, relating to the LRA's activities in Uganda) if apparently credible is so different from the claim presented in 1994 that there is a realistic prospect that a favourable view could (not would) be taken of the new claim. He submits that the new evidence should not be excluded on the basis that it was previously available because the applicant was not simply unwilling to give evidence as to the rapes at the earlier stage but was unable to do so because of what is described in the WAR report as rape trauma syndrome, or in the psychiatric report as post-traumatic stress disorder. So far as the position in Uganda is concerned, in 1994 he says that the Secretary of State took the view that it appeared to be improving, whereas the new evidence showed that in 1996 conditions were markedly different and worsening as a result of the LRA activities. He says that the Secretary of State in his letters appears to have elided the two questions that I have earlier referred to, namely: 'Is this a new claim and, if it is not, do I accept or reject the material He has implicitly accepted that there is a new claim because he goes on to say in the letters that he is aware of the activities of the LRA, but then adds further information that the Government is beginning to get the problem under control. In effect, he is responding with new information to a new claim. Mr Tam for the Secretary of State at the outset of his submissions accepted that the third requirement of Ladd v Marshall - that is, apparent credibility - was met. He did not seek to advance any separate submissions in respect of the criterion of significance. His submissions under that heading were subsumed, in effect, under the heading of the acid test. He submitted first that the first criterion of unavailability was not satisfied. The applicant may have been unwilling to present evidence about the rapes earlier, but she was not unable to do so. Secondly, if it was unavailable, and so to be looked at, the new evidence did not amount to a fresh claim applying the acid test. He emphasised the point that the relevant question is whether there is a well-founded fear of persecution for the future -that is to say, if the applicant is returned. The mere fact that there had been persecution in the past does not bring one within the terms of the Convention, but of course he accepts that evidence of past persecution is plainly relevant in assessing the risk of future persecution. Mr Tam's acceptance in this court that the new evidence passes the threshold of apparent credibility sits uneasily, in my view, with the terms of the Secretary of State's decision letters, which I have already read. I accept that the two letters should be read as a whole, and in a commonsense and not a legalistic manner. I also bear in mind that it is the practice of the Secretary of State, even if he concludes that there is not a fresh claim, still to consider the new evidence to decide whether, notwithstanding his decision, the applicant might none the less qualify for asylum. Bearing all these matters in mind, it still seems to me that, on any commonsense approach to the letters, lack of apparent credibility was an essential plank of the Secretary of State's rejection of the argument that this new evidence amounted to a new claim. The first letter in September 1996 deals with the matter very briefly, simply saying that the Secretary of State is aware that Miss Ejon has had ample opportunity to present all the available evidence relating to her asylum claim. Then there immediately follows a sentence making the point that she has significantly varied her account during the consideration process, embellishing her story at each successive interview. The first effective paragraph of the second letter in November 1996 says that the Secretary of State does not consider it credible that a person claiming to fear persecution and to be in need of international protection would keep silent for nearly 7 years from her arrival in this country about traumatic events which are now said to be central to her asylum claim, and concludes by saying that the Secretary of State doubts the veracity of any statements made and that Miss Ejon's credibility has been seriously undermined. Once the new evidence is accepted as being apparently credible (as it now is), to categorise someone suffering from the degree of trauma described in the reports as 'unwilling to give evidence', as opposed to 'unable to give evidence', as Mr Tam submitted, is in my judgment perverse. In Ladd v Marshall, the Court of Appeal had rejected the assertion that the witness in question had been in fear of her husband or there had been any form of coercion. So the issue which arises in this case was not considered in Ladd v Marshall and no authority directly on the point has been cited to me. In my view there is a danger in interpreting the word 'unavailable' too literally. Just as a person may be unable, due to physical injury, to disclose evidence at an earlier stage, so they may be unable to do so because of psychological damage. Looking at the letters as a whole, the Secretary of State does not address the question, given that this evidence is apparently credible, and given the this apparently credible evidence itself contains an explanation as to why the applicant was unable (not merely unwilling but unable) to speak about her experiences at an earlier stage, can he (the Secretary of State) maintain the argument that evidence was available at an earlier stage in the sense that the applicant was able to disclose it but was simply unwilling to do so, or was that unwillingness more properly described on apparently credible evidence as an inability to produce the evidence at an earlier stage? Turning to the acid test, Mr Tam submits that this is not a new claim but simply an embellishment of the old. The essence of the claim is the same, he says. Because of the Government soldiers' interest in her father, they mistreated the applicant. He submits that even if the new evidence discloses much more serious mistreatment, that does not amount to a different cause of action. He submits, as I understood it, that no matter how much more serious the mistreatment was, that could not amount to a new claim because it would not be a new cause of action. The cause would be essentially the same, mistreatment. In my judgment, that is an artificially rigid approach, and I remind myself of what the then Master of the Rolls said in Onibiyo, namely there is a danger of any form of words being regarded as some form of binding formula. Of course I accept that, where ill-treatment has been alleged, further elaboration of that ill-treatment (particulars of more kicks or more punches or longer periods of arbitrary imprisonment than had hitherto been disclosed) will not normally amount to a new claim. But on any reasonable view, the evidence of the repeated and sustained rapes in this case, if apparently credible (as is conceded), was in an altogether different league from the isolated incidents of beating which amounted to no more than slapping, that had been described in the earlier claim. Of course the issue is not was the applicant badly treated in the past but has she a well-founded fear of persecution if she is returned. Looking at the risk of return, the new evidence presents, in my judgment, a wholly different picture as to what the applicant may have to fear by way of persecution if she has to return to Uganda. I stress the word 'may' because the sole question at this stage is could the Secretary of State reasonably conclude that this was not a new claim. The merits of that new claim, if it is a new claim, are for subsequent determination by him and, if he rejects it, by the special adjudicator. Having accepted the new evidence as apparently credible, he could not, in my view, having regard to the gravity of the sexual violence alleged, reasonably have come to the conclusion that this was not a new claim but was simply an embellishment of the old. Another way of approaching the matter is this. The acid test requires one to compare the new claim with that which was earlier rejected, excluding material on which the claimant could reasonably have been expected to rely in the earlier claim. If the new evidence as to the rapes is excluded because the view is taken that it was previously available (see the first letter), then it is hardly surprising that one comes to the conclusion that the new claim is not substantially different from the former claim. If, on the other hand, it is accepted (as in my judgment it should be) that the new evidence should not have been excluded on the grounds that it was available (because there was apparently credible evidence which explained why it was not available), then the conclusion as to whether what is presented amounts to a new claim may be very different. Mr Tam submitted that if evidence of worse treatment could be advanced as a fresh claim, it would in essence make such claims far too easy to advance. I do not accept that this decision, on its particular facts, opens any floodgates. Anyone alleging that he or she in fact suffered much worse ill treatment than they first claimed would have to overcome the Ladd v Marshall hurdles of availability, significance and credibility. In most such cases, I would have thought, it is likely that the new account would not be apparently credible and there would have been no good reason for not referring to the worst treatment at the earliest possible stage. In my view, two features distinguish this case upon its facts. First, not only is the new evidence accepted as apparently credible, but the evidence within itself contains an explanation of why it could not be produced at an earlier stage. Secondly, the difference between the nature of the ill-treatment presented before (which amounted to little more than slapping) and the nature of the ill-treatment presented now (multiple rapes over an extended period of years) is so very substantial as to amount, on any basis, to a completely fresh picture which could be laid before the special adjudicator. In the light of my conclusions on the first and main -issue, I find it unnecessary to decide Mr Supperstone's subsidiary argument relating to the new information about conditions in Uganda, though it seems to me that in the decisions the Secretary of State did elide the questions referred to in Boybeyi. For those reasons, I shall allow this application. Application allowed with costs. Leave to appeal granted. Solicitors: Philip Moody & Co for the applicant Treasury SolicitorDisclaimer: Crown Copyright
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