Examination of Witnesses (Questions 60-65)
13 JANUARY 2004
HIS HONOUR
JUDGE HENRY
HODGE OBE, RT
HON LORD
NEWTON OF
BRAINTREE OBE AND
MR CHARLES
BLAKE
Q60 Mr Soley: The Law Society tell me
that they have been making quite major efforts to improve. Do
you agree they are making much greater efforts?
Lord Newton of Braintree: I think
so, yes.
Q61 Mr Soley: This is at the heart of
the problem in a sense, but obviously all systems make mistakes
and I am not asking you to say mistakes are not made, but at the
heart of this is a fear that people might be sent back to a violent
regime which seriously abuses human rights. How confident are
you that that does not happen frequently?
His Honour Judge Hodge: This is
vox pop again. You will have to get the statistics from
the Home Office, but the number of people who are returned (about
11,000-12,000 a year) in relation to the number of people who
come in, is a source of much debate by the tabloid press. That
is the first question. It is quite difficult to get clear evidence
of anybody who has gone back and who has been killed or tortured,
although UNHCR will be able to give you one or two case examples
and you do hear of them. It is as difficult a question to answer
as one might expect it to be because if they really did disappear
and nobody heard about them how would we ever know if they have
been wrongly sent back? I have always thought that was the trouble
with Turkey, who want to come into the EU, that we have not got
a better system of checking what happens to people who get sent
back to Turkey. It is very difficult to answer the question with
any clarity. However, our adjudicators are fantastically conscious
of that as a potential issue, and it means they, in my view, bend
over backwards to be as fair as they can. They have always got
in the back of their mind that something really terrible could
happen if they get the decision wrong, which is why we have got
to get the quality up and up as we go along.
Q62 Mr Soley: I know you take into account
the country of origin. As a Member of Parliament who deals with
a great number of these I suppose I am relatively relaxed about
somebody going back (even if I think they might have a case) to
some countries, but I would be very worried about the Democratic
Republic of Congo, for example and one or two other countries
where the system just does not exist. How much does that influence
decision-making?
Lord Newton of Braintree: I cannot
answer the latter part of the question, but interestingly the
country you have just mentioned was one that was the subject of
an informal conversation earlier today.
His Honour Judge Hodge: A terribly
lawless place the Democratic Republic of Congo.
Mr Blake: I understand the difficulty,
Mr Soley. Adjudicators always try to make findings of fact about
the individual and what has happened in the past—not that
that is the only finding we have to make because we have to assume
they will be sent back today and what will happen. We need to
look at the objective circumstances and find facts in the context
of those circumstances. It does not, however, relieve us of the
obligation of deciding whether this appellant is telling the truth
about past experiences, and whether the prognostications as to
the present or future is or is not correct. That goes to the nub
of decision-making in asylum. It is extremely difficult and I
think everyone really does their best, as Judge Hodge says.
His Honour Judge Hodge: This is
really crude, but if you have not been a target in the past in
the country to which you are going to be sent back, and it is
not completely lawless, and you say you have and you are not believed—and
there is some evidence that people who get returned are not just
targeted because they returned—then it is likely in those
circumstances that an adverse decision to the appellant's claim
will be made. It is very fact-based.
Q63 Mr Soley: It must inevitably, from
what you are saying, enter very much into an adjudicator's mind
if they were sending someone back, say, to the Democratic Republic
as opposed to sending someone back to somewhere within the EU
to, say, Poland, where you would be more relaxed about them being
sent back?
His Honour Judge Hodge: I hope
it does not actually, because what we should be doing is looking
at the evidence about their claim that they were persecuted in
their country of origin. You would decide that on the basis of
what they tell you, on the basis of the information that comes
out in the background information about the country. It might
be right that, unless you are a Polish Rom, the chances of being
persecuted in Poland would be zilch. It might be right that if
you are a Rwandan from a part of the DRC that there is a significantly
greater chance of you being persecuted just because you are a
Rwandan. You then have to go on from that position and decide
is this particular Rwandan who comes from this particular place
likely, just because he is a Rwandan, to actually be persecuted
by the agents of the state?
Q64 Mr Soley: I understand what you are
saying, and I certainly am sympathetic to the process that you
want to be factually based, but I just do not believe it cannot
enter into the equation in quite a big way actually your awareness
of where that person will go back to. Despite all the rules and
regulations laid out, it must actually be a large factor in minds
of the adjudicator, must it not?
His Honour Judge Hodge: This is
putting me on the spot!
Q65 Mr Soley: I think that is what I
am supposed to do!
His Honour Judge Hodge: I think
it is fair to concede, as all of us would, some background factual
circumstances might lead to us looking at things with a different
degree of care. It is a relevant factor though, on the other side
of that equation, that we know some people are never returned
to some countries—ever—despite the fact they may have
come here and said these various things had happened to them,
and our system has said, "No, we don't believe you",
but it is impossible to get them back because of the nature of
the country. That is another factor you bring into your consideration.
As I say, I am very confident my adjudicators bend over backwards
to be as fair as they can in all circumstances.
Mr Blake: I entirely agree.
Chairman: Gentlemen, thank you very much
for your assistance this morning.
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