Dereva v Secretary Of State For the Home Department

Past persecution does not prevent an asylum tribunal from finding that a present risk has ended. Where past persecution is accepted, a continuing well-founded fear may be displaced by evidence of material changes in country conditions and the absence of evidence of continuing persecution. The evidential significance of that absence may be strengthened where greater press freedom makes reports of mistreatment likely to emerge and relevant organisations have produced none. On appeal, the Court of Appeal will not interfere with the tribunal’s factual conclusion merely because the applicant suffered grave ill-treatment in the past. Intervention requires a proper basis, such as a conclusion that the evidence could not reasonably support.

The appellant, a Kenyan national and former member or supporter of FERA, claimed asylum after detention, torture and sexual abuse by the Kenyan authorities. Her initial appeal was refused by a special adjudicator. An earlier Immigration Appeal Tribunal decision was later quashed by consent because of concerns relating to credibility findings.

On rehearing, the Secretary of State accepted that her evidence should be treated as credible. The Immigration Appeal Tribunal nevertheless dismissed the appeal, finding that political and social conditions in Kenya had changed and that there was no longer a real likelihood of persecution. The appellant appealed to the Court of Appeal, alleging that this conclusion was perverse.

Appeal dismissed. The Court of Appeal upheld the Immigration Appeal Tribunal’s conclusion that the appellant no longer had a well-founded fear of persecution.

1. The Tribunal had correctly understood the significance of the appellant’s past treatment. It proceeded on the basis that, after such persecution, the Secretary of State had to demonstrate a change in circumstances before the risk could be treated as removed.
2. The country evidence was to be read as a whole. It identified a substantial change from the position in 1995, including the dissolution of FERA, the return and subsequent pardon of its chairman, and increased freedom of expression and of the press in Kenya.
3. The absence of evidence of post-dissolution persecution was material. No evidence had been produced that former FERA members continued to suffer ill-treatment. Given the greater freedom of the Kenyan press, and the absence of such evidence from organisations with particular knowledge of the subject, the Tribunal was entitled to regard the absence as significant.
4. The issue on appeal was whether the Tribunal’s factual conclusion was perverse. The Court of Appeal was not entitled to interfere where the conclusion was one which the evidence permitted it to reach. The seriousness of the appellant’s previous torture and the sensitivity of asylum cases did not provide a proper basis for intervention.

The appeal was dismissed, with legal aid assessment.

• Court of Appeal (Civil Division): Appeal dismissed; legal aid assessment.
• Immigration Appeal Tribunal: On rehearing, the substantive appeal was dismissed in a decision notified on 27 September 2000. Leave to appeal was refused by the Tribunal but granted by a single Lord Justice.
• Judicial review: An earlier Immigration Appeal Tribunal decision was quashed by consent on 29 June 2000 because of concerns relating to the special adjudicator’s credibility findings.
• Special adjudicator: The appellant’s asylum appeal was refused on 3 June 1999.