MEHBOOB ARSHAD v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2001] EWCA Civ 587

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN IMMIGRATION APPEAL TRIBUNAL
[2001] EWCA Civ 587Case No C/2000/3536Venue Royal Courts of Justice, Strand, London WC2
Between
MEHBOOB ARSHADAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Before
Lord Justice WallerLord Justice LawsLord Justice Jonathan ParkerMR D BAZINI (Instructed by Bartram & Co, Houndslow, West Middlesex, London TW4 7DN) appeared on behalf of the AppellantMISS L GIOVANNETTI (Instructed by Treasury Solicitors, Queen Anne's Buildings, 28 Broadway, London, SW1H 9JS) appeared on behalf of the RespondentDate 5 April 2001
[1]Thursday, 5th April 2001 LORD JUSTICE WALLER: I will ask Laws LJ to give the first judgment.

LORD JUSTICE LAWS:

[2]This is an appeal against a decision of the Immigration Appeal Tribunal notified on 27th September 2000 when it allowed the Secretary of State's appeal against the determination of the Special Adjudicator promulgated on 31st July 2000. The Special Adjudicator had allowed the appellant's appeal against the decision of the Secretary of State to refuse him asylum on 15th September 1997. Permission to appeal against the IAT's decision in this court was granted by myself on 30th November 2000.[3]The appellant is a citizen of Pakistan who arrived in the United Kingdom on 15th January 1997 and claimed asylum on arrival. He claimed and claims to fear persecution in Pakistan on account of his religious beliefs. He converted from the mainstream Sunni Muslim faith to the Ahmadi faith in 1989. Thereafter he experienced various forms of ill-treatment and harassment. In 1990 he was falsely accused of being involved in a fight at a cinema. However, the cinema manager exonerated him. In 1991 he was badly beaten by a group of youths who abused him as a "Kafir" (non-believer). It is said that he was advised not to report this incident to the police. He was harassed at work. At the end of 1991 he moved to Karachi, where he remained for three and a half years. The Special Adjudicator, who considered that the appellant had given "truthful evidence throughout" (paragraph 91), said this, in his summary of the appellant's case (paragraph 86):
"He fled to Karachi where he was able to avoid harassment by practising his Ahmadi faith very privately and by shunning new friends and acquaintances. He remained in Karachi for 3½ years. In July 1995 on account of the worsening situation in Karachi and on account of his mother's declining health he returned to live near his parents' home. He was again harassed as people came to learn of his conversion to the Ahmadi faith. In July 1996 the police arrested his younger brother in the mistaken belief that it was the appellant and impounded the appellant's motorbike. The brother was released the next day and the motorbike was eventually returned after court proceedings for its return were instituted. The appellant remained in Pakistan for a further period of 5 months before departing from the United Kingdom. Although the specific events of which the appellant complains took place over a long period of time, as soon as people in his neighbourhood came to learn of his conversion they started to harass him. If he was returned to Pakistan he fears that he would be harassed again on account of his conversion to the Ahmadi faith. He can expect no protection from the state authorities in Pakistan."
[4]I should note also this passage at paragraph 98:
"...in 1984 the Government inserted section 298(c) into the Penal Code which prohibited an Ahmadi from calling himself a Muslim and banned Ahmadis from using Islamic terminology. The punishment is up to three years' imprisonment and a fine. The Government has used this provision to harass Ahmadis. If it needs to be stated the Government and the Pakistani authorities provide no protection whatever to Ahmadis against attacks by sections of the Muslim populace. ... I consider that the harassment experienced by the appellant as described by him in his evidence amounted to persecution. I consider that such harassment was occasioned by reason of his religion as a converted Ahmadi."
[5]The Special Adjudicator noted that the Secretary of State's representative did not distinctly submit that "an internal flight alternative" was available to the appellant (see paragraph 101), but he nevertheless felt that he should consider just such a question. This is what he said (paragraph 102):
"I have found that the appellant has a well-founded fear of persecution in Lahore and I consider that I ought to go on to consider whether there is any part of Pakistan in which the appellant could live without persecution. The question is whether it would be unduly harsh in all the circumstances for the appellant to live in another part of Pakistan. I consider it would be unfairly harsh for the appellant to live in another part of Pakistan. The harassment and persecution which I find he fears on reasonable grounds are likely to be experienced in all parts of Pakistan. There is no safe area in this regard. Further, the appellant's family is in Lahore. There was no evidence to suggest that he had friends or family in other parts of Pakistan including Karachi. In all the circumstances, I consider that it would be unduly harsh to return the appellant to another part of Pakistan."
[6]The Immigration Appeal Tribunal granted leave to appeal to the Secretary of State. On the substantive appeal the Immigration Appeal Tribunal held that the appellant had not in fact suffered persecution. I will cite only paragraph 24 of the determination:
"Each case has to be considered on its own merits. Analysis of the background material does indicate harassment at the hands of the police and other government authorities of Ahmadis, but this does not mean Ahmadis in Pakistan per se are a persecuted sect. In the instant case it has been accepted by the Special Adjudicator that the respondent had been harassed by the police authorities but, for the reason which we have indicated, it is quite clear that once that harassment had been drawn to the attention of the higher authority, action was taken to procure the cessation of that harassment. We are asked to assume that, if the respondent were to return, this course of conduct would continue and that the respondent would not necessarily be protected by the court or higher authority. We can see no reason to make that assumption. A fear of persecution in the future must, to some extent, rely upon persecutory action in the past, and in the instant case the circumstances would not appear to support Mr Bazini's contentions with regard to future persecution. The Secretary of State does not in the event seek to uphold this finding. That is because, through Miss Giovannetti, he accepts that in the course of arriving at it the IAT was in error in a particular respect, namely in finding that the appellant was afforded the protection of the High Court in respect of his brother's detention. That was an erroneous finding. It related, as far as I can see, to the circumstance which concerned the brother's arrest in July 1996 in the mistaken belief that he, the brother, was indeed the appellant. The reference in the IAT decision, which I will not set out, is to be found at paragraphs 17-19. The IAT proceeded to consider the internal flight alternative in case they were wrong in rejecting the appellant's primary case. This has been the principal focus of this appeal. This is what the IAT said (paragraphs 26-27): "
Lest we be in error in these findings, however, we consider the question of internal flight on the basis that the respondent had suffered persecution prior to coming to this country. The evidence, which is not disputed, is that the respondent moved from his home town to Karachi where he obtained employment as an accounts clerk and where he lived for three-and-a-half years without any harassment at the hands of the authorities or anyone else. He only returned to his home town because his parents were elderly, frequently ill and he wanted to care for them. On his return in July 1995 he was able to obtain employment without, apparently, any difficulty. Clearly it would not be unduly harsh for the appellant to live in Karachi. He did so for three-and-a-half years, he went there particularly to avoid the harassment he was suffering in his home town, he obtained employment there, and he was not harassed there. He has accountancy qualifications and experience, and there is no reason, therefore, why he should not obtain employment there readily. Again, in our view, the Special Adjudicator has erred in his consideration of internal flight when he finds that the whole of Pakistan is unsafe for the respondent. He has not considered the circumstances of this particular respondent but has examined the general objective evidence with regard to Pakistan as a whole. He has ignored the fact that the respondent lived in Karachi, and worked there in suitable employment for three-and-a-half years without any harassment or any persecution. He has not considered that each case must be determined upon its own merits and has decided the question of internal flight purely upon the general reports in relation to Ahmadis without considering the context of this particular respondent. He has not considered, though in fairness to him it may not have been before him, the Tribunal determinations in Saeed and Khan . For these reasons, therefore, the grounds of appeal in relation to internal flight must be sustained."[7]Mr Bazini for the appellant submits first that the IAT was not entitled to embark upon the issue of internal flight at all. In the first place he asserted that the IAT had not given leave to appeal to itself upon that issue. That is, with respect to him, incorrect, as the grant of permission to appeal to the IAT itself demonstrates. I should say in passing that although an internal flight point was taken by the Secretary of State in his decision letter of 1st September 1997, though apparently not in an earlier letter, no express argument was addressed to the Secretary of State about internal flight by the Secretary of State's representative. I have set out how the Special Adjudicator dealt with the internal flight aspect.[8]Mr Bazini proceeded to submit that, although the IAT had given leave upon the point, in fact the Special Adjudicator's findings in relation to internal flight were themselves perfectly reasonable and free of legal error: and so, leave to appeal or no leave to appeal, the IAT should not have interfered with them. In his skeleton argument he puts it thus:
"18.The Court of Appeal in Borrissov [1996] Imm AR 524, held that the Tribunal could interfere with an Adjudicator's findings of fact where such findings were: `thus unsustainable, although such powers should be used sparingly. The jurisdiction of the Immigration Appeal Tribunal is not limited to questions of law, and it is within the scope of their jurisdiction for them to review, if they see fit to do so, the Special Adjudicator's conclusions of fact, though no doubt this power will be sparingly exercised, and in any event, in accordance with general principles, the Immigration Appeal Tribunal will naturally be most reluctant to interfere with a finding of primary fact by the adjudicator which was dependent on his assessment of the credibility of a witness who had appeared before him' (Borrissov [1996] Imm AR, at 535)."
[9]However, in my judgment, the Special Adjudicator's own treatment of the internal flight issue is not free of proper criticism. In the passage which I have quoted -- paragraph 102 of his determination -- it seems to me that the Special Adjudicator initially confused the question whether the appellant would be persecuted throughout Pakistan with the different question whether it would be unduly harsh to return him to some part of Pakistan: the second question, of course, assumes that he would not be persecuted in the area under consideration. True, the Special Adjudicator proceeded to state in the same paragraph:
"The harassment and persecution which I find he fears on reasonable grounds are likely to be experienced in all parts of Pakistan."
[10]But then the Adjudicator returns to the "unduly harsh" issue. I am driven to conclude that this reasoning is confused and cannot stand.[11]In those circumstances it seems to me that the IAT were at any rate entitled to consider and address for themselves the internal flight question. But I fear that their treatment of it is also unsatisfactory. Again I have set out the passage. There the IAT refer only to one reason which moved the appellant to leave Karachi after three and a half years: that was the fact that his parents were elderly and unwell. But that was by no means the only reason he gave. In paragraph 39 of the Special Adjudicator's determination, one finds this:
"There were two reasons for his return. First, he had become concerned that Karachi was becoming dangerous again. There were more and more clashes between different political parties, religious and ethnic groups. Secondly his mother had had a stroke and he wanted to be closer to her."
[12]Further, in paragraph 86, which I have already read, there appears this sentence:
"In July 1995 on account of the worsening situation in Karachi and on account of his mother's declining health he returned to live near his parents' home."
[13]Finally, there is an important passage in the appellant's statement which as I understand it was before both the Special Adjudicator and the Tribunal and was not in this respect, so far as I am aware, seriously disputed:
"22.... . I was also becoming concerned that Karachi was becoming dangerous again. After a couple of years, the army had returned to barracks but then gradually violence began to erupt again and there were more and more clashes between different political parties, religious and ethnic groups. I was becoming worried that if anyone learned about my being an Ahmadi convert then there was a good chance that I would be killed in the prevailing violence there."
[14]This evidence was plainly relevant, first to the question whether it was in any event safe for the appellant to be returned to Karachi, should the Secretary of State so propose, and secondly, if it could be held that it was safe, whether it would be a unduly harsh to do so.[15]Mr Bazini also complains, not without some justification, that in this context the IAT made no reference at all to the fact (see, for example, the Special Adjudicator at paragraph 96) that after leaving Karachi the appellant was pursued or in some way harassed by a federal agency called the FIA; no mention, either, of the fact or at least possible contention that because the appellant was not, if I may so put it, just any adherent of the Ahmadi faith but was an apostate from the Sunni Muslim religion the price of his staying free from harm might be the keeping of very strict silence indeed about his faith. The general consequence of him being an apostate would be to put him at heightened risk.[16]These factors, and perhaps especially the first, in my judgment are matters to which the IAT should have addressed itself. The appellant was entitled to know what the Tribunal made of them. That circumstance in my judgment flaws the IAT's reasoning in the passage concerning internal flight. It would follow, if my Lords agree, that the IAT decision must fall to be set aside and the case remitted to them for rehearing.[17]That is not quite the end of the matter. In the last paragraph of the Secretary of State's skeleton argument, this is said:
"If the Court were to find that the Tribunal went wrong on the question of internal flight then the Secretary of State will contend that the matter ought to be remitted to it for a re-hearing, as the adjudicator made the errors in relation to persecution outlined in paragraph 5-8 of the grounds of appeal to the IAT, and his determination is unsafe."
[18]What lies behind that is the Secretary of State's desire to have the whole matter reconsidered, if any part of it is to be reconsidered.[19]Paragraphs 5-8 of the Secretary of State's grounds, which I need not read, concern questions going to the issue whether the appellant feared persecution for a Convention reason, an issue of course logically prior to any question of internal flight. As I have said, the Secretary of State has conceded, albeit on narrow ground, that that part of the IAT's reasoning material to that issue is flawed. In my judgment it must follow that this aspect of the case too ought to be reconsidered.[20]Upon my view of this appeal, the appeal should be allowed and the whole case should go back. I should, however, add this footnote. In granting permission to appeal I said this:
"I am somewhat anxious this case portrays a (no doubt unconscious) lack of even-handedness on the part of the IAT as between an immigrant's appeal and a Home Office appeal. In the former class of case experience shows that the IAT will not generally go behind findings of fact made by an adjudicator who has heard the witnesses (notably the appellant). In this case, in which the Adjudicator expressly accepted the oral evidence of the appellant, there are signs that the IAT (which received no oral evidence) entertained some doubt as to his credibility, which may have informed their decision."
[21]I then give certain references.[22]Since, upon my view of the case, the matter will have to go back to the Tribunal, I will say very little about this. It is, I think, fair to notice that the Secretary of State's grounds to the Tribunal, while all very properly expressed in the language of legal challenge or Wednesbury irrationality, in some instances are at any rate close to being quarrels with the Secretary of State's findings of fact. Under the legislation, as is well-known, the IAT has a jurisdiction to entertain appeals on fact. I certainly, and without qualification, acquit the IAT of anything remotely amounting to bias. I would only say this, which is no more than obvious, that the IAT will desire to ensure that the appearance of its decision is as rigorously even-handed as its substance undoubtedly is.[23]I would allow the appeal.

LORD JUSTICE JONATHAN PARKER: I agree that this appeal should be allowed for the reasons which my Lord has given. I also agree with the order which he proposes.

[25]In paragraph 27 of its determination, the Immigration Appeal Tribunal rejected the Special Adjudicator's finding that there was no safe area for the appellant in Pakistan as the basis for his conclusion that there was no internal flight alternative available to the appellant. The IAT's reason for rejecting that finding was that "he has not considered the circumstance of this particular respondent" (i.e. to the appellant in this court). However, as Miss Giovannetti for the Secretary of State accepts, in reaching its own conclusion as to the availability of an internal flight alternative, the IAT's review of the evidence as to the appellant's circumstances was itself manifestly defective for the reasons my Lord has given. Moreover, as Miss Giovannetti also accepts, the IAT's findings and conclusions on the remaining issues are defective by reason of its error in finding that the appellant was afforded the protection of the High Court in Pakistan.[26]In these circumstances, I agree that the matter must be remitted to the IAT.

LORD JUSTICE WALLER: I also agree that this appeal must be allowed. The matter should be remitted to the IAT.

[28]I have been concerned about the way matters have proceeded in this case. First, I share my Lord's views expressed when giving leave and at the conclusion of his judgment that possibly -- and he suggests no bad faith and nor do I -- the IAT's approach to findings of fact of the Special Adjudicator when the Secretary of State was appealing was not quite consistent with that adopted in cases where the asylum seeker is appealing.[29]My second cause for concern relates to the way the internal flight issue has been argued in this case. It seems that the Secretary of State did not take any point through counsel then representing them when the matter was before the Special Adjudicator. No point was taken that there might be a safe area of Pakistan to which the applicant could have gone even if the applicant had established persecution in some other area of Pakistan. The result was that the Special Adjudicator dealt with that aspect not very fully and certainly in the flawed manner as identified by my Lord.[30]One must have some sympathy for the Special Adjudicator in the position that he was placed; but if the matter had been properly argued, the Special Adjudicator would have undoubtedly made further findings of fact in that section. That may have prevented what then happened, which was that when the matter was taken to the IAT their own decision became flawed because they overlooked facts relevant to that issue.[31]I agree that the proper course now is for the matter to be remitted to the IAT and for them to reconsider the matter.

Order

Appeal allowed with costs.

Cited in 2 later judgments