Ngene v Secretary of State For the Home Department

In an Article 3 return case, the claimant must show a real possibility that the feared treatment will occur, including each link in any causal chain founded on a foreign conviction or punishment. A broad assertion about prison conditions requires particularised evidence and careful analysis of the relied-on material. An adjudicator’s status as the primary fact-finder does not prevent the Immigration Appeal Tribunal from reversing findings based on irrelevant considerations, unsupported assertions or inadequate reasoning. The Tribunal may use common sense and procedural knowledge when assessing causation. Permission to appeal was refused.

The applicant, a Nigerian national, claimed asylum and protection under Article 3 of the ECHR based principally on the possible operation of Decree 33 after his return. An adjudicator dismissed the asylum claim but found a serious likelihood of inhuman or degrading treatment in Nigerian prisons. The Immigration Appeal Tribunal allowed an appeal from that determination, rejecting both the alleged prison risk and the causal likelihood that Decree 33 would be applied. It refused leave to appeal on 4 December 2001. The applicant sought permission from the Court of Appeal, challenging the Tribunal’s factual conclusions, its treatment of further material and the adequacy of its reasoning.

1. Disposition. Lord Justice Pill refused permission to appeal. Lord Justice Latham agreed.
2. Article 3 risk. The adjudicator’s reasoning was unsatisfactory. It relied on irrelevant considerations, including the applicant’s belief that he had been wrongly convicted, his bad luck and the absence of public interest in prosecution under Decree 33. Although the applicant’s ill-health had some relevance, it was expressed more as a plea for leniency than as evidence supporting the alleged Article 3 risk.
3. The general allegations about Nigerian prison conditions were sweeping and insufficiently particularised. The adjudicator referred to reports by title but did not identify or analyse the relevant passages, including in light of the improvement in the administration of justice in Nigeria since 1997. Such a finding, capable of preventing removal of persons liable to detention in Nigeria, required careful reasoning.
4. Causation. A claim based on Decree 33 required evidence that the decree was in force, that there was a real possibility that the foreign conviction would be discovered on return, that the decree would then be applied and that imprisonment would result. The Tribunal was entitled to conclude, having regard to the applicant’s false identity in Slovenia and ordinary procedures, that discovery and application of the decree presented no real risk. It was entitled to use common sense and knowledge of procedures in analysing the evidence.
5. Appellate fact-finding and procedure. Although the adjudicator was the primary fact-finding body, the Tribunal was entitled to reverse the findings where the reasoning was materially defective. The procedural objection also failed. The Tribunal had discretion to consider further material concerning Decree 33, even though the issue had not been fully identified in the grounds or put to the respondent in its eventual Article 3 form. A specific ruling would have been helpful, but exclusion of the material was not required.
6. The Tribunal’s conclusions that there was no serious likelihood of Article 3 ill-treatment and no real risk that Decree 33 would be applied were justified. It was not arguable that this court would reverse them. Order: permission to appeal refused.

• Court of Appeal (Civil Division): On 8 February 2002, refused permission to appeal from the Immigration Appeal Tribunal. Lord Justice Pill gave the judgment and Lord Justice Latham agreed.
• Immigration Appeal Tribunal: Allowed an appeal from the adjudicator’s determination and refused leave to appeal on 4 December 2001.
• Adjudicator: Dismissed the asylum claim but found a serious likelihood of treatment contrary to Article 3 of the ECHR on return to Nigeria.