AK v Secretary of State for the Home Department [2006] EWCA Civ 1182

Case No C5/2005/2625[2006] EWCA Civ 1182
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL[AIT NO. AS/10270/2004]
Venue Royal Courts of JusticeDate Tuesday, 25 th July 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE MUMMERY
LORD JUSTICE SEDLEY
LORD JUSTICE LLOYD
Between
AKAppellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)- - - - - - - - - - - - - - - - - - - - -MR J GILLESPIE (instructed by Messrs Barry Clark, 10 Mornington Villas, Bradford, BD8 7HB) appeared for Appellant.MR R PALMER (instructed by The Treasury Solicitor, London WC2B 4TS) appeared for Respondent.
J U D G M E N T

LORD JUSTICE SEDLEY:

The

[1]appellant’s history, for present purposes, can be taken from the decision of the adjudicator, Mr D G Shimmin, who in a decision of 6 October 2004 allowed his appeal under both the Refugee Convention and the European Convention on Human Rights against the Home Secretary’s refusal to grant him protection: “6. The appellant is aged 54. He arrived in the UK with his wife and children using their own passports and valid visas. An outline of his claim is that he has been a very politically active member of the Pakistan Muslim League (Nawaz Sharif) (PML) since 1987. In 1988 he became chairman of the Khidmat Committee in Karachi West. The job of the Khidmat Committee was to tackle corruption within public authorities. The appellant’s Committee successfully investigated and registered many cases against the police, various departments of the government including health and education and took action against high-profile terrorists and criminals. In 1999 the PML were overthrown and General Pervez Musharraf took power. The appellant’s house was raided and he was detained and tortured for two months. On 1 May 2001 the appellant took part in a demonstration where he was arrested then detained and tortured for one month. In May 2002 after another demonstration the appellant was arrested for a further two weeks. 7. After the October 2002 elections and the Mohajir Quami Movement (MQM) party took power in Sindh Province. In January 2003 the appellant received threats and became aware that he was being followed. The appellant believed that the people he had arrested and convicted during his time as chairman of the Khidmat Committee were looking for revenge as they had served their prison sentences and been released. The appellant informed the local police of his fears but this did not deter the threats. On 30 April 2003 the appellant was driving outside his home in Karachi when he was attacked and shot at by unknown men who tried to stop his vehicle. The appellant reported the matter to the police and asked for a guard to be given to protect him. This request was not granted. He claimed that many people in similar positions to him had gone missing or were executed. The appellant feared for his life and left Pakistan, arriving in the UK on 19 June 2003”.[2]That decision was appealed by the Secretary of State to the Immigration Appeal Tribunal, who on 14 April 2005, still sitting in their former capacity although the new system was now in place, allowed his appeal and remitted the case for hearing by an immigration judge, as adjudicators had now become.[3]That rehearing before Mr N P Dickson on 11 August 2005 resulted in a decision adverse to the appellant. Although permission was sought to appeal it, the appellant’s counsel, Mr Gillespie, now recognises that, for reasons given by Richards LJ when refusing permission to appeal on the papers, there is nothing wrong in law with the second determination. What Laws LJ, on renewal, accepted was arguable was that there had been nothing wrong in law with the first determination either, and that the IAT had therefore erred in quashing it. The appellant relies on the decision of Collins J in Wani [2005] EWHC 2815 Admin, paragraphs 24 to 26, as requiring or at least entitling him to wait until the conclusion of the remitted hearing before seeking permission to appeal on this ground. No point is taken by the Secretary of State on it, and since the issue goes to time only and not to jurisdiction, this court has taken no point either.[4]Mr Shimmin had accepted the veracity of the appellant’s account which I have quoted. In the course of a carefully reasoned decision, he said: “19. The respondent submits that the appellant described only two attacks in his witness statement but in cross-examination he said that he was threatened four or five times a month and these were not mentioned. Furthermore in the witness statement and interview there is no mention of the attack on the house of the appellant. It is submitted that if he mentioned the attack on the car outside the house he would have also mentioned the attack on the house. The appellant says he was dealing only with the major incident at this point which required a report to the police. Such inconsistencies, I find to be minor and do not challenge the overall symmetry and substance of his story. …22. I consider that the minor discrepancies in the appellant’s testimony are of no real significance because he has been largely consistent.23. Weighing all the internal and external evidence for what it is worth and considering it cumulatively in the light of the challenges to it by the respondent I find that the appellant has proved to the required low standard of reasonable likelihood that the facts he alleges are true.24. In summary, the appellant was a prominent local politician in Karachi whose political party was overthrown by the coup in October 1999. He was chairman of an anti-corruption Committee and made political and criminal enemies in that position. His political enemies are now in power both nationally and locally. Those he prosecuted for corruption have threatened and targeted him. He had been subjected to attacks. The objective evidence confirms that politicians in a similar position to the appellant have been killed”.[5]The adjudicator then turned to the Home Office’s case that there was, even so, sufficient protection afforded by the Pakistani state. Having considered the in-country evidence, he reached these conclusions:
“31. It is clear from this objective evidence that there is corruption and violence within politicians and the police. I find there is a real risk that the appellant will not receive police protection from criminals or politicians because of instructions from ruling MQM politicians. 32. The respondent urges me to follow the Tribunal case of contained in the Home Office Supplementary Bundle. The finding of the Tribunal in that determination is that there is a functioning criminal process and that the state is actively taking pre-emptive measures to prevent trouble arising caused by Sunni and Shia Muslim extremists. However, the appellant in that appeal feared only non-state actors. The appellant in the instant case fears both non-state actors, criminals, and state actors, the politicians who are now in power. Accordingly I distinguish the case of Hussein. 33. On the facts as I have found them I find that there are substantial grounds for believing that the Appellant would, on return to Pakistan now, face ill-treatment from state and also non-state agents which reaches the minimum level of severity required to constitute a breach of Article 3 of the Human Rights Convention. I find that there is currently no sufficiency of protection in the terms indicated by Horvath [2001] 1 AC 489, [2000] INLR 239, HL in Pakistan”
. The adjudicator went on to hold that internal relocation was not an option for someone with the appellant’s profile.[6]The IAT held that this decision was vitiated by two errors of law: “28. The claimant’s evidence was that he could not identify his attackers. He reported the matter to the police and there does not appear to have been any evidence before the Adjudicator from which he might reasonably have concluded that the police were unwilling to investigate the complaint, so far as they were able, within the restriction that the claimant did not know who had attacked him. Whilst the police did not comply with the claimant’s request for a guard, that does not mean that they were unwilling to offer a sufficiency protection within the terms of Horvath. We do not find that the Adjudicator was entitled to conclude, as he did in paragraph 32 of his determination, that the Tribunal’s determination in Hussein could be properly distinguished, without more. We find that the Adjudicator’s error in failing properly to consider the issue of sufficiency of protection amounts to a material error of law. 29. Further, whilst the Tribunal’s determination in YL was not before the Adjudicator, nevertheless we find that the Adjudicator erred in any event in failing to explain at all why the inconsistencies, referred to in paragraph 19 of his determination, were minor in nature and why those inconsistencies did not ‘challenge the overall symmetry and substance’ of the claimant’s account. [Counsel for the respondent] suggested that paragraph 22 of the Adjudicator’s determination indicated that the Adjudicator had considered such inconsistencies adequately. We do not agree. Paragraph 22 provides no analysis of those inconsistencies and there is no proper reasoning as to why the Adjudicator found inconsistencies within the claimant’s story to be minor and of no consequence. We find that this error also amounts to a material error of law”.[7]Significantly, however, they went on to say at paragraph 30: “30. Other aspects of the Adjudicator’s determination are not clearly flawed. For example, the Adjudicator’s analysis of the political situation, as referred to in paragraphs 25 and 26, is not evidently perverse. We are particularly concerned at the fact that some of the documentation referred to us might indicate that the claimant had a significantly high profile in politics in Pakistan, which is not apparent on the face of the Adjudicator’s determination. We find that that is an issue which requires further consideration and analysis”.[8]I will deal first with the IAT’s second ground, namely the lack of reasoning or explanation of the adjudicator’s view that the discrepancies in the appellant’s case were insignificant. It is apparent from paragraphs 7 and 9 of the IAT’s determination that the Home Office Presenting Officer had claimed not that there was a deficiency of reasons, but that the conclusion that the discrepancies did not seriously injure the appellant’s credibility was perverse or irrational. The IAT did not accede to this in full, but they accepted that the conclusion was insufficiently reasoned or explained.[9]It is rare, sometimes indeed suspicious, to find a seamless account lacking the slightest discrepancy. It is the fact finder’s job to note what discrepancies have emerged in an asylum seeker’s case and, to the extent that they are relied on against him, to evaluate them in the context of the appellant’s narrative and the in-country data as well, of course, as of the impression made by the appellant him- or herself as a witness. If, as often happens, the immigration judge concludes that a discrepancy is such as to call the appellant’s veracity in question, he or she is not ordinarily required to do more than describe it and state the conclusion. The same logically applies when the immigration judge concludes that a discrepancy is not significant. But there are cases in which the nature of the discrepancy is such that the immigration judge’s conclusion about it calls, as a matter of common sense, for some explanation; for example, because it is not at all obvious that it follows from the factual premises or, as Mr Palmer puts it for the Home Secretary, because without an explanation an objective reader will not understand why the particular discrepancy is regarded by the immigration judge as significant or insignificant as the case may be.[10]The IAT gave no explicit reasons why the adjudicator’s conclusion about the discrepancies in the appellant’s case was such as to require explanation. In this court, however, Mr Palmer has set out a detailed case for saying that, absent some convincing explanation, the changes in the appellant’s case about the attack on his home could not sensibly be dismissed as insignificant. In short, the attack had gone from not being mentioned at all, either in his reports to the Pakistani authorities or in the appellant’s original witness statement, to being the critical event which finally made him seek police protection and, when this was denied, resulted in his flight. The change had occurred, moreover, in direct response to the IND’s letter of refusal.[11]Although it is not perceptible in the Home Office’s case as recounted by the IAT in paragraphs 7 to 18, their own conclusions do expressly identify the passage – that is paragraph 19 of the adjudicator’s decision – which flags up the attack on the appellant’s home as a material omission from his witness statement and interview record. What Mr Palmer has done in this court is spell out, rather more fully and convincingly than the Home Office Presenting Officer, or if I may say so the IAT, the case for oversetting this element of the adjudicator’s determination for want of reasons. It is not, however, a new case, and it is in my judgment a sufficient case for holding, as the IAT did, that the – on the face of it – surprising conclusion of the adjudicator that this was a minor discrepancy having no impact on the appellant’s credibility required an explanation of some kind if the adjudicator’s reasons were to pass the test of adequacy. The IAT did not decide that such a conclusion was not open to him, or by parity of reasoning to the immigration judge to whom they then remitted the appeal, and it is fair to say that the latter too found the appellant an essentially truthful man.[12]The other ground, the IAT’s first one, concerns the adjudicator’s handling of sufficiency of protection. Mr Palmer points out that what had happened to the appellant himself was largely conditioned by the fact that he could not identify his attackers. The police could not be expected to give him a permanent guard, but they had made investigations. This was no less relevant than the background material which had led the adjudicator to conclude that the appellant could not expect the state to protect him, because its members were now complicit with his persecutors.[13]While past conduct and events are often a crucial indicator of the soundness of fears for the future, they are not a substitute or a surrogate for it. The correct focus under both Conventions is what may happen to the appellant if he is returned. That is what the adjudicator focused on here. In paragraph 31 he found that the political power acquired electorally by the majority faction of the MQM was being used to crack down on its internal opponents, and went on to infer that it would be used against people who, like the appellant, were trying to expose corruption. At paragraph 29 the adjudicator said: “29. I find from consideration of the CIPU assessment, paragraphs 6.14 to 6.22, that corruption within the police is widespread despite the government’s attempts to promote human rights awareness in its training of police officers and attempts to control corruption. I also find from the section that the police are subject to political pressure, their professionalism is low and there is no real control over them. According to the US State Department report 2003, ‘The failure of the government to investigate and punish abusive police officers effectively created a climate of impunity for police abuse”.[14]Mr Palmer is entitled to say that, in doing this, the adjudicator takes no apparent account of the fact that the appellant’s own evidence does not tend to show either that his persecutors were state agents, or that the police were unwilling to investigate what had happened to him. While the latter cannot be conclusive of the former, it is indisputably relevant, especially when the former finding is itself based on extrapolation. As I have already said, however, past events are not the issue. They are relevant, often highly relevant, as indicators of future risks. But future risks may equally well be established by people who have so far entirely escaped persecution.[15]If the IAT’s critique of the adjudicator had been that he had based himself on a purely speculative link between MQM’s roundup of its own violent minority and a general willingness on its part to abuse its political power, and between this inferred political proclivity and the corruptibility and indiscipline of the police, his important conclusion at paragraph 29, which I have quoted, might have been held to be unwarranted. Instead the IAT, in paragraph 30, which I have quoted, declined to interfere with the adjudicator’s analysis of the political situation in Pakistan.[16]In paragraph 28 they picked three lesser quarrels with his determination. First, they pointed out that there were obvious reasons why the police could not investigate the attacks on the appellant more fully than they did. But the adjudicator’s finding of future risk was not based on this. It was based on the continuing political situation and the appellant’s high profile. Secondly, they pointed out, rightly, that a police guard was not the appropriate criterion by which to test sufficiency of protection. The same stricture applies to this. Thirdly, they held the adjudicator to have been in error in not applying the reasoning in Hussein. The adjudicator, it will be recalled, concluded that this was a case of probable future persecution, either instigated or condoned by state agents, while Hussein had concerned solely non-state actors. Hussein is an IAT country guidance case, and therefore of persuasive authority in so far as it decides anything beyond its immediate facts. Mr Palmer relies on it for the proposition that Pakistan has a functioning system of criminal law, but that is not the issue here. The issue is whether the police are likely to bring before the courts anyone who attacks the appellant and whether, in consequence, his enemies, whoever they are, will know they can act with impunity.[17]I would hold, therefore, for my part, that the two-pronged critique which led the IAT to remit the appeal for re-hearing was, like the curate’s egg, good in parts. But unlike the curate’s egg, it did not need to be wholly good in order to be acceptable and effective. Unfortunate as I recognise it is for Mr Khan, one of the two grounds for allowing the appeal, the unexplained dismissal of an apparently significant discrepancy, was sound even though the other in my judgment was not. The single good ground was sufficient to warrant the rehearing, the result of which, although contrary to the first outcome, is accepted as being unappealable.[18]It follows that in my judgment this appeals fails, and that the determination of Mr N P Dickson given on 25 August 2005 stands.

LORD JUSTICE LLOYD: I agree.

LORD JUSTICE MUMMERY: I agree.

Order

Appeal dismissed.

Cited in 2 later judgments