MK (Pakistan), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 1145

Case No C4/2012/0239

[2012] EWCA Civ 1145

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(MR JUSTICE BURNETT)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday 3 rd July 2012

Before

LORD JUSTICE PILL

LADY JUSTICE ARDEN

LADY JUSTICE BLACK

Between

The Queen on the applicaTION ofAppellant

MK (Pakistan)Appellant

Secretary of StateRespondent

for the Home DepartmentRespondent

(DAR Transcript of

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Mr Manjit Gill QC (instructed by Thompson and Co Solicitors) appeared for Appellant.

Mr Jonathan Alburn (instructed by the Treasury Solicitor) appeared for Respondent.

Judgment

[1]This is an appeal by MK, the appellant, against the decision of Burnett J on 16 January 2012 whereby the judge refused an application by MK to quash a decision of the Secretary of State on 28 July 2011 refusing asylum to the appellant under the UN Convention relating to the Status of Refugees 1951. The Secretary of State also decided that the asylum claim was clearly unfounded and certified it as such under Section 94(2) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 act”). A human rights claim was also stated to be clearly unfounded and certified as such. There was a further decision of the Secretary of State to which I will refer.

[2]The appellant entered the United Kingdom as a visitor on 30 May 2011. She entered on a valid visa with members of her family, her sister, the sister's husband, MU, and their two children. The appellant was 30 years of age. Since childhood she has lived with MU and his wife and has been in a position of dependency on them for many years.

[3]MU is a senior police officer in Pakistan with responsibilities for anti-terrorist operations. The appellant applied for asylum on 12 July 2011 and had an initial screening interview. She was interviewed in more detail on 21 July 2011. Documents in support of her claim were sent by her solicitors to the Secretary of State by way of a section 120 notice on 27 July 2011; that is, the day before the decision mentioned.

[4]The decision was served on the appellant and her solicitor on 5 September 2011. On that date removal directions were set for 9 September and the appellant was detained.

[5]Following a Pre-Action Protocol letter of 7 September, a claim for judicial review was filed on 16 September. Permission to apply was granted on 4 October and the appellant was subsequently released from detention.

[6]Further short submissions were made on behalf of the appellant. By letter of 22 November 2011 the Secretary of State, having referred to the July submissions and to the further submissions, declined to reverse her earlier decision. She stated that the further submissions "do not amount to a fresh claim". The letter stated:

"It remains the conclusion that if your claim was accepted at its highest you would have the opportunity to seek protection from the Pakistani authorities on your return. Alternatively, it is considered reasonable for you to relocate away from those that you fear and you have provided no evidence to suggest that the person(s) you fear would have the capability, resources or inclination to track you down elsewhere in the country. It is deemed that any fears you may have on return to Pakistan are clearly unfounded."

The letter went on to state that it had also been decided that the submissions did not amount to a fresh claim.

[7]The point was belatedly taken on behalf of the appellant that the question was not whether the claim was a fresh claim but whether the claim was manifestly unfounded and, had the Secretary of State applied the test appropriate to that question, a different result might have been reached. We note that point and are inclined to agree that the “manifestly unfounded” concept should have appeared in the later letter as it had in the earlier one, but we approach the case by considering whether the Secretary of State was entitled to make a finding that the claim, treated as a whole, and considered on the two occasions mentioned, was manifestly unfounded, whether.

[8]The basis of the claim is that MU and members of his family had been threatened by extremists due to his anti-terrorist policing work. While the state authorities have expressed a willingness to protect him and his family, the appellant, it is submitted, would be left at real risk. The judge held that, while there can be no absolute guarantee of safety, the in-country material shows that the Pakistani authorities are able to provide protection. Moreover the appellant could safely relocate within Pakistan.

[9]Section 94(2) of the 2002 act provides, under the heading "Appeal from within United Kingdom: unfounded human rights or asylum claim”:

“A person may not bring an appeal to which this section applies in reliance on section 92(4)(a)if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.”

Subsection (1) refers to an appeal under section 82(1) of the Act where the appellant has made an asylum claim or a human rights claim or both. Section 92 provides a right of appeal from within the United Kingdom in circumstances which include an appeal against an immigration decision if the appellant has made an asylum claim or a human rights claim while in the United Kingdom.

[10]In R (Bagdanavicius) v SSHD

[2003] EWCA Civ 1605

the court defined, at paragraph 8, the ‘clearly unfounded’ test:

"It is essentially the same test as that adopted by Lord Hope in Thangarasa v SSHD...at para 34, in applying the ‘manifestly unfounded’ test in section 72(2)(a) of the [Immigration and Asylum Act] 1999... namely that the claim 'is so wholly lacking in substance that the appeal would be bound to fail'."

[11]In ZT (Kosovo) v SSHD

[2009] 1 WLR 348

it was acknowledged that “clearly unfounded” in section 94(2) was a more generous test for the claimant than "realistic prospect of success" in Rule 353 of the Immigration Rules and that if, at least on one legitimate view of the facts and the law, the claim may succeed, the claim will not be clearly unfounded.

The judge held, and I refer to extracts from paragraphs 23 to 25 of his judgment:

“...The claimant herself spoke in her interview of protection being provided for her brother-in-law. The objective material referred to by the Secretary of State shows that the Pakistani authorities are able to provide protection. Ironically, the recent attack on the home of the CID chief demonstrates that. It was those providing protection who were killed and injured. No absolute guarantee of safety can be provided. The reality in the claimant's case is that it does not appear that the authorities have been asked to consider the security of Mr U's family. There is no basis for concluding that they would not do so if asked and take such steps as were necessary to provide protection, either by keeping the family unit together or suggesting temporary separation. 24. This is a non state-actor case, as discussed by Lord Hope in Horvath. The Secretary of State conscientiously reviewed the material in this case and was entitled, in my judgment, to conclude that the claim must fail because the Pakistani state was willing and able to provide protection to the claimant in the sense explained by Lord Hope. 25. It is no part of the claimant's case that she could not go to Peshawar to live with one or other of her sisters who reside there. Nor is it part of her case that it would be unreasonable for her to move there to secure a safe environment were it necessary to do so. Instead, the argument runs that living in Peshawar would not provide the necessary security because the Taliban operates across Pakistan and could seek her out and cause her harm. The claimant juxtaposes two strands of evidence. The first is that she received a direct threat when she answered the intercom at the family home in Karachi together with a threat in the car park at the hospital (see paragraph [3] above). The second is that the Taliban (a description covering a myriad of groups) are active in the Peshawar region. From that she suggests that it is at least arguable that there are serious grounds for believing that, were she to relocate to Peshawar, she would be sought out and harmed by someone wanting to intimidate her brother-in-law, whatever protection might be afforded by the authorities. The Secretary of State has considered this evidence, together with all that relating to the security situation in Pakistan, and concluded that there is no reason to suppose that there is any chance of the claimant being sought out in the way she suggests and for that reason, even if the general conclusions on state protection were wrong, the claimant could relocate to avoid the problems she has identified. That conclusion is, in my judgment, a lawful one.”

[13]Permission to appeal has been granted by Sir Richard Buxton on a consideration of the papers, stating that he was "just about persuaded that a tribunal might take a different view of the implications of the total position of the applicant from that which presented itself to the Secretary of State". On behalf of the appellant it is submitted that the decision of 28 July 2011, served on 5 September 2011, was unlawful in failing to take into account material submitted on 27 July. That point, for the reason that I gave earlier, is not in my judgment one that needs to be analysed.

[14]It is submitted that when making both decisions the Secretary of State failed to apply the correct test of protection against targeted risks. Anxious scrutiny was not exercised. On a proper application of the test the claim for protection could not rationally have been said to be clearly unfounded.

[15]In ZT (Kosovo)

[2009] 1 WLR 348

Lord Phillips of Worth Matravers stated at paragraph 22:

"The test of whether a claim is ‘clearly unfounded’ is a black and white test"

Lord Phillips added at paragraph 23:

“Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.”

[16]Reliance is placed by the appellant on the decision of this court in Bagdanavicius

[2004] 1 WLR 1207

. The case dealt with a specific risk of violence unlike the risk of generalised violence considered in other cases. Auld LJ stated at paragraph 55(6):

“Notwithstanding systemic sufficiency of state protection in the receiving state, a claimant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require...”

That proposition is stated by Auld LJ also to apply to Convention claims as well as to asylum claims.

[17]The point was also made in AW (Sufficiency of Protection) Pakistan

[2011] UKUT 31

, a two-judge Upper Tribunal court, where it was stated, at paragraph 28:

“It is clear from this part of [the first tier] consideration that he is seeking to decide the issue of whether this appellant would have sufficient protection solely on the basis of being satisfied that there exists a general sufficiency of protection.”

Paragraph 37:

“We would stress that it is also particularly important to have regard to the circumstances of the individual where that person has already been subject to persecution or serious harm...”

[18]It is submitted by Mr Gill QC on behalf of the appellant that the bland assertion in the decision letter that the claim is clearly unfounded did not demonstrate the anxious scrutiny which is required. The Secretary of State must consider the possibility that an independent specialist judicial decision-maker would draw other inferences from the evidence and reach a different conclusion on the merits. A consideration of the ability of the Pakistani authorities to provide protection for the family of such men as MU was required. Section 94(2) provides a screening process. The circumstances of the present case plainly required detailed inquiry and assessment. Reference is made to Pakistan no longer being on the “safe list” of states generally regarded as safe, at least as a starting point. Reference was made to a COIS report of 17 September 2011 which shows a dramatic increase in terrorist attacks against police between 2005 and 2009 and to under-staffing in the Pakistan police service.

[19]It is submitted that there was a burden on the Secretary of State in the circumstances of this case to make proper enquiry and anxious scrutiny, which might or might not demonstrate that a claim was clearly unfounded. Questions of whether the need for protection had been drawn to the attention of the authorities were essentially a matter for enquiry through oral evidence before an Immigration Judge. The appellant claimed at one stage of her interview that no guards were provided. The Secretary of State's letter does refer to provision of guards in certain circumstances. This, it is submitted, required further enquiry.

[20]MU has returned to Pakistan and has continued to be involved in anti terrorist cases as Deputy Superintendent of Police in the CID. There had been in November 2010, that is before the arrival in this country, an attack of massive scale on the CID offices where he worked. Many people died and MU was himself injured. Concern has been expressed, it is submitted, about the performance of the police in Pakistan and the significance of such evidence and its relevance to the present situation is a matter for consideration by a judge. There is evidence of a sustained pattern of threatened serious harm to this family. The judge accepted that, for the purposes of the present enquiry, at paragraph 3 of his judgment.

[21]Mr U has been receiving threats since 2009 connected with his work, in particular seeking to discourage him from giving evidence against terrorist suspects. Despite these threats MU has continued to work in the same unit and give evidence in cases involving suspected terrorists. The nature of those threats and the extent to which they involve his family members including the claimant were explained by her in the course of her asylum interview. The threats extended to herself and her sister, telling them to stop MU giving evidence. In January 2011 somebody pressed the intercom to the family home and threatened the claimant indicating “we can come upstairs and do whatever we want to do” and “tell your brother in law not to become a witness otherwise we can do anything to you”. On 26 January 2011 the claimant's nephews were returning home from school when the car in which they were travelling was fired upon. On 5 March 2011 shots were fired at the house. I refer to some of the incidents described by the judge. He refers also to others. As to relocation, the appellant submits that it is difficult for a single woman in Pakistan and the appellant's identity is likely to be discovered by those who threatened her brother in law.

[22]On behalf of the Secretary of State, it is accepted by Mr Alburn that the issue for the court is whether there is a real prospect that an immigration judge may take a view different from the Secretary of State on the issues of sufficiency of safe protection and internal relocation. It is accepted that the allegations of the appellant to be considered are that the appellant's brother in law is a high profile target of a terrorist group, the family home has been attacked, members of the family are at grave risk, the state is unable to protect them and the appellant would not be safe elsewhere in Pakistan.

[23]Mr Alburn submits that no absolute guarantee of safety can be given as the judge stated, nor can it be expected. As Lord Clyde stated in Horvath v SSHD 1 AC 489 at [510]:

"That would be beyond any realistic practical expectation."

It is submitted that the Secretary of State had sufficient evidence, as deployed in a very detailed decision letter, that protection is available and could and would be offered by the Pakistani authorities. They have demonstrated their willingness to protect MU and his family. It is submitted that the specific circumstances of the appellant's case, including the specific threats made against her, were plainly in the forefront of the Secretary of State's consideration of the sufficiency of protection.

[24]Reference is made to paragraph 25 of the decision letter where it is stated that on one occasion the appellant was accompanied by a guard:

"The fact that this has been done does indicate a willingness of the Pakistan authorities to protect you, your brother-in-law and his family."

[25]The Secretary of State stated that the appellant had not fully tested the ability of the authorities in Pakistan to provide her with assistance and there was no evidence to suggest, it is submitted, that the incidents described could not be dealt with by the authorities in Pakistan upon the appellant's return. It is stated that further avenues of redress were available to the appellant "which you could and should have fully explored before seeking international protection". Having failed to explore options available, the appellant had failed, it is submitted, to demonstrate that she would not be able to access a sufficiency of protection in Pakistan.

[26]Mr Alburn submits that the approach there demonstrated is clearly a makeweight or an add-on to the central finding that protection was available. I do not accept that submission, having considered the manner in which the decision letter has been formulated. It is a point made not just once but a number of times in the decision letter and even while the point about the provision of protection is being considered. At paragraph 21:

"It is, therefore, believed that there are state organisations available to you in Pakistan whom you could and should seek protection from if you had difficulties there. It is also considered that you could and should fully pursue such options before seeking international protection"

Paragraph 26:

"...given that you state that your brother-in-law is the Deputy Superintendant of the CID in Karachi, if you were to approach your local police station and be dissatisfied with their response then it is considered that you should make your complaint to another police station, a higher police authority or, alternatively, to the deputy superintendent of the CID in Karachi. You have not done so and it is, therefore, considered that you have not fully tested the ability of the authorities in Pakistan to provide you with the assistance. ... 28) However, and despite the influence your brother-in-law could exert, if the police were to fail to look into complaints which you made against them, it is considered that there are further avenues of redress, outlined below, which you could and should have fully explored before seeking international protection "

There are then several references to avenues available as described in in-country material. The determination continues:

"32) It is, therefore, considered that should you wish to seek redress for any perceived lack of protection from your local police station upon return then you should seek this redress at another police station or by applying to the National Accountability Bureau. 33) You have not explored all of the above mentioned options and, therefore, it is considered that you have failed to demonstrate that overall you would not be able to access a sufficiency of protection in Pakistan. 34) It is, therefore concluded, that in addition to the avenues of protection and redress available to you, there are also bodies for you to approach in order to access advice and support whilst seeking protection in Pakistan."

In conclusion, at the following paragraph, it is stated:

"You have therefore failed to demonstrate that these groups would seek to harm you on return to Pakistan"

[27]That argument about exploring options appears to me to be central to the decision of the Secretary of State. Resort by the Secretary of State to that argument demonstrates in my view the need for further inquiry and judicial appraisal. The notion that the family member of a senior police officer is required to go over his head to make further representations elsewhere, repeatedly stated in the decision letter, is not an easy one. It is one which plainly, in my judgment, requires investigation and an opportunity to give oral evidence.

[28]Relocation is considered at the beginning of paragraph 35. It is stated that these threats:

"...made to you, have been directed at your brother-in-law because of his role with the authorities. As such it is considered that these threats are clearly designed to discourage him from returning to your home area and appearing at the trial of those men he arrested."

It is in that context that relocation was considered by the Secretary of State.

[29]The subject was not explored at interview with the appellant. Only one question was asked and that related to the possibility of the family moving together and not the appellant moving alone. It was established that she had sisters in Peshawar. Her ability to speak Urdu is mentioned. It is then stated at paragraph 45:

"Consideration has been given to your problems in Pakistan. As stated above, the problems that you fear may occur are localised in the Karachi area where your brother-in-law's work is based, and this is the only area of Pakistan that you have encountered problems."

I interpose that the risk is there because that is where MU works and the expression “only area” hardly adds to the assurance of the appellant’s safety. The paragraph continues:

"Therefore, if you believe you have a problem you can relocate to other areas of Pakistan away from your perceived problems. 46) Overall you have not demonstrated that any of the people you fear would even be aware of your return to Pakistan if you were to conceal this fact from common acquaintances. Based on the information above it can be seen that there is no barrier to your returning to Pakistan and relocating."

[30]If the appellant were first to go to the family home, as might on enquiry be expected or at least investigated, then of course anyone interested in MU would know that the appellant was back in Pakistan. The appellant could not demonstrate and could not be expected to demonstrate that people she feared would or would not be able to follow her to other parts of Pakistan. That is a matter for enquiry by the Secretary of State, if appropriate at a judicial hearing. The decision letter appears to rely on the inability of the appellant herself, an educated but hardly streetwise person, to know the manner in which the terrorists operations are conducted. That was essentially a matter for enquiry, and for the Secretary of State to rely on the inability of the appellant herself to provide such evidence does not justify a finding that the decision was clearly unfounded.

[31]I have not attempted to review the evidence comprehensively. There is no need to do so for present purposes. Equally, I am not beginning to consider the merits of the claim upon full enquiry. The points I considered are, in my judgment, sufficient to require the court to conclude that this is not a case where the Secretary of State could say that the claim was clearly unfounded. I bear in mind what Lord Phillips has said and what Auld LJ has said about the need for specific consideration of the specific circumstances of the particular claimant. Issues arise in this case which require further enquiry.

[32]Taking the reasoning of the Secretary of State in her letter on its own terms, it is in my judgment necessary to conclude that the Secretary of State could not conclude that on the information available to her, as explained in the decision letter, the claim was clearly unfounded. Moreover there is a real prospect, in my judgment, that an immigration judge would come to a different view. Both because of that prospect and of the need for further enquiries in a case such as this, the claim could not be certified by the Secretary of State as clearly unfounded. For those reasons I would allow this appeal.

[33]I agree. The leitmotif of the submissions of Mr Jonathan Alburn for the Secretary of State is that there was a sufficiency of protection for the appellant had she asked for it. As regards the sufficiency of protection Mr Alburn relies on the well known case of Horvath v SSHD

[2001] 1 AC 489

and in particular on the passage in the speech of Lord Hope at 499 G-H, which reads: "...the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consists of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection. The applicant may have a well-founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill-treatment for a Convention reason which may be perpetrated against him. But the risk, however severe, and the fear, however well-founded, do not entitle him to the status of a refugee.”

[34]The test of sufficiency of protection raises a question as to the standard of protection which the home state must provide. As regards that, Mr Alburn relied on a passage from the speech of Lord Clyde at page 511 A-B. There is also a useful passage in the speech of Lord Hope, again, where Lord Hope says at 500: "The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward LJ said, [[2000] INLR 15] at p.44G under reference of Professor Hathaway's observation in his book at p.105, it is axiomatic that we live in an imperfect world.

[35]Thus the determination of the sufficiency of protection is inevitably fact-sensitive. In this case the appellant's circumstances were that she lived with her brother-in-law and sister, and that her brother in law was Deputy Superintendent of CID in Karachi. They had, it appears, no full-time protection at home. When her brother in law was present at home his guards were with him and they followed him when he went back to work to his office. Shots were fired into the home and there was the incident through the intercom to which Pill LJ has referred.

[36]There was evidence that the Chief Superintendent of the CID had protection since there is a news release from the BBC saying that eight persons had died in an attack on his home. It is clear from that report that there were guards outside the house when this occurred since most of them were the unhappy victims.

[37]The Secretary of State in this case contended that the appellant should have sought protection and had not done so. However, at her interview the appellant said:

“There was no guards given.”

That answer is clearly ambiguous as to whether she had not asked, or had asked and the protection was not given, or whether she had not asked because it was clear that no guards would be allocated to the family's home in this particular case. Accordingly there is a question of whether there was sufficiency of protection in this case. Did, for instance, the protection which the Chief Superintendent have percolate down to the lower ranks? We must take into consideration that her brother in law was doing work in the detection of terrorists and was giving evidence against them. These activities brought him considerable personal danger.

[38]As Pill LJ has explained, the test laid down by Lord Phillips in ZT (Kosovo) is effectively whether there is a question of law or fact on which a tribunal could legitimately reach a different conclusion from that of the Secretary of State. I agree with Pill LJ that there are clearly issues as to the sufficiency of protection on which a tribunal could legitimately reach a different conclusion as to the appellant's claim. It is not necessarily the case that that would happen but these issues need to be investigated. In those circumstances it is not open to the Secretary of State to determine that the claim is manifestly unfounded.

[39]In the circumstances, I need say nothing about the relocation claim.

[40]For those reasons I also agree with the order that Pill LJ proposes.

[41]What a tribunal ultimately makes of the facts of this case is, of course, as yet unknown. However, in my judgment, for the reasons given in the judgments of my Lord and my Lady, it was not open to the Secretary of State to conclude on these facts that the appellant's claim was clearly unfounded either because there was available sufficient state protection for her in Karachi or because she could remedy her difficulties by relocating elsewhere in Pakistan. I would therefore also allow the appeal.

Order

Appeal allowed