M v Secretary of State for the Home Department (Kazakhstan) [2003] UKIAT 00169 (11 December 2003) [2003] UKIAT 00169

UKIAT

M v Secretary of State for the Home Department (Kazakhstan) [2003] UKIAT 00169 (11 December 2003)

[2003] UKIAT 00169 · 2003-12-11

[1]APPEAL No.

[2003] UKIAT 00169

M (Kazakhstan) IMMIGRATION APPEAL TRIBUNAL Date of hearing: 13 October 2003 Date Determination notified: 11 December 2003 Before Dr H H Storey (Chairman) Mr D J Parkes Between APPELLANT and SECRETARY OF STATE FOR THE HOME DEPARTMENT RESPONDENT DETERMINATION AND REASONS This case is being reported as it addresses the issue of what the consequences are, in the context of an appeal based on asylum and human rights grounds, of withdrawal of the asylum grounds. At the end we set out brief guidelines on this issue.

[2]The appellant, a national of Kazakhstan, has appealed with leave of the Tribunal against a determination of the Adjudicator, Mrs M.M.S. Shanahan, dismissing the appeal against the decision of the Secretary of State, refusing to grant leave to enter on asylum grounds. Miss A. White of Counsel, instructed by Fawcett & Pattini Solicitors appeared for the appellant. Mr R. Holmes appeared for the respondent.

[3]The Tribunal has decided to dismiss this appeal.

[4]The appellant claimed that in Kazakhstan she had been subjected to harassment from her own family and the surrounding community because she had married a Muslim from Afghanistan. Difficulties continued after the birth of her son in June 2001. Because of threats from family and relatives including an uncle who was involved with the mafia, they decided in February 2001 that her husband should leave the country. Having been turned away from her church because of her marriage and her son even after her husband had left, she decided to come to the UK to be with him. She made this decision in Autumn 2001 and eventually left in February 2002. Both she and her husband claimed that she did not know about his having been granted ELR before she came to the United Kingdom.

[5]In relation to the appellant's a claim the Adjudicator wrote:

'She has now withdrawn her claim for asylum so I must assume the treatment and harassment she claims to have suffered was not of a level she that would have established a Refugee Convention claim or an Article 3 claim and as I attach little weight to this in considering her situation on return.'

[6]In relation to the Article 3 claim the Adjudicator accepted that the appellant was a Russian Christian who established a family life with her Muslim husband in Kazakhstan before he left to come to the UK, living with her parents and then in their own flat. They had met in July 2000 and married in November 2000. She was already pregnant before she left. Her husband did not contact her until approximately six months after he came to the UK. A citizen of Afghanistan, he has been granted ELR for four years. Since they made contact here they had not lived in the same accommodation but had re-established their family ties to some extent. She was now pregnant again. The Adjudicator accepted that any removal would result in interference in her family life. She did not, however, accept that removal would be disproportionate. She noted that apart from the usual side-effects of pregnancy, the appellant had no medical or health difficulties. However, her principal reason for not finding the decision disproportionate was that she did not accept that the appellant had satisfactorily explained why she had not applied for UK entry clearance in Kazakhstan. In this regard she rejected the claim of the couple that she did not know before she left that he had obtained ELR. Given that they spoke to each by phone once a week, she found that not credible. Despite saying she made her plans to leave in secret, the appellant had managed to obtain a Czech visa. Accordingly, the Adjudicator concluded, the appellant had failed to show that the option of applying for entry clearance from Kazakhstan was not a valid one, then or now.

[7]The first point raise in the grounds of appeal was that the previous legal representatives incorrectly withdrew the appellant's asylum appeal. They maintained that the appellant was not aware and did not understand the drastic implications of withdrawing the asylum appeal. They contended:

'A large part of her evidence was considered irrelevant to the Article 8 issue but in fact was material in establishing how the appellant found her (sic) forced to leave her country. She and her husband have suffered considerable persecution and received death threats and have no authority to turn to as the police are involved with the family. This rather important issue which forced her husband and then her to leave Kazakhstan was not even considered.'

[8]The second point raised was that the Adjudicator was wrong to conclude that there was a viable option open to the appellant of applying for entry clearance from abroad. Her husband had only been granted ELR. Furthermore, there were exceptional circumstances applying in her case: the couple had been forced to live a significant period apart because of necessity, not choice. The appellant's husband would be denied contact with his child. The appellant was pregnant and in a delicate state of health. In her country she would again be exposed to death threats. Her husband could not join her there, because of the threats made against him. The issue of withdrawal of the asylum grounds of appeal and its consequences

[9]Leave to the Tribunal was not granted on the first point. It was rightly refused. The asylum grounds of appeal had been withdrawn before the Adjudicator without qualification. At the hearing the appellant had been represented. The grounds of appeal contain no substantiation of the claim that she had not in fact instructed a withdrawal. There is no affidavit from the appellant about the matter. There is nothing to show that these claims were taken up with the appellant's previous representatives.

[10]Nor do we think that the appellant, by withdrawing her asylum grounds of appeal, was precluded from giving evidence about her overall situation. The appellant gave evidence about her experiences in Kazakhstan, as did her husband. The Adjudicator clearly took account of these. This observation disposes of another point raised in the grounds, that somehow the appellant was wrongly denied an opportunity to have her case considered as a whole.

[11]The question remains nevertheless as to what should be the consequences for an appellant in a mixed asylum and human rights appeal of withdrawal of the asylum grounds of appeal.

[12]With regard to this question, we observe there is a significant amount of confusion amongst representatives, and sometimes Adjudicators. This case is an apt illustration. The confusion is between withdrawal of an appeal and withdrawal of grounds of appeal. Representatives who speak of withdrawing their client's asylum appeal in an appeal brought on asylum and human rights grounds can scarcely be taken literally, since there is strictly speaking only one appeal against the decision refusing asylum. In Zenovics [2002] INLR 219, Schiemann LJ stated at para 11: "…like the Tribunal, we consider that the scheme of the Immigration and Asylum Act 1999 is that in relation to any one administrative decision, there should only be one appeal to an adjudicator, albeit this could be on a number of grounds which might be unrelated or related".

[13]If, when representatives purport to withdraw their client 's asylum appeal they were taken literally, there would be nothing left for the Adjudicator to consider. He would have no jurisdiction. There would no longer be any pending appeal within the meaning of the Immigration Acts; see Immigration and Asylum Act 1999, s.58 (5) – (7).

[14]Plainly what is normally intended is not withdrawal of the appeal as such but only withdrawal of the asylum grounds of appeal.

[15]But there is also confusion as to precisely which grounds or points are intended to be withdrawn. Following Kacaj (01/TH/00634*), of course, it is settled law that, subject to very limited exceptions, the asylum and Art 3 grounds of appeal stand or fall together. This does provide an overall framework in which to clarify withdrawal of any asylum grounds of appeal in an appeal brought on asylum and human rights grounds, but it does not relieve representatives of the need for particularity.

[16]Currently, representatives do not always make clear what elements, in respect of the asylum grounds of appeal, they mean to withdraw. Bearing in mind that there are several elements to the refugee definition contained in Article 1A(2), this does not help. Do they mean that their client no longer contests that he faces a real risk of serious harm? If so, they are effectively withdrawing the asylum grounds of appeal and any Art 3 grounds. Or do they wish rather to maintain the claim that he faces a real risk of serious harm, albeit now accepting there would be effective state protection against such harm? If so, whilst that effectively amounts to withdrawing the asylum grounds and the Art 3 grounds, being specific about this may be relevant to a "mixed case" arising under Art 8: see Razgar [2003] INLR 543 .

[17]Similar need may arise for clarification as to whether they still mean to submit that their client faces a real risk of persecution in his home area, albeit now conceding he would have a viable option of internal relocation. That too may be relevant in "mixed cases" in the Razgar sense.

[18]In many cases all that representatives appear to mean is simply that, whilst they consider that all other elements of the refugee definition are made out, they now accept he cannot show a Refugee Convention ground (race religion, political opinion etc). If that is so, then Art 3, of course, remains central.

[19]Two basic questions should suffice to clarify what is meant in most cases. Firstly, do representatives still intend in the human rights grounds to pursue Article 3 grounds of appeal (which following Kacaj entails a claim that there is a real risk of serious harm)? Secondly, are they confining issues to Article 8?

[20]This case illustrates the dangers of inchoate withdrawal, since no attempt was made to identify any element of the refugee definition on which reliance was still placed. Nor was there any mention of continuing reliance, in the human rights grounds, on Article 3.

[21]Given the evident fact that the representatives cannot have intended a withdrawal of the appeal as such, we have decided it would be wrong to take a technical point against the appellant in this regard. We also think it would not be fair to deduce a priori any consequences (for the basis on which the human rights grounds were brought) from a subsequent withdrawal of the asylum grounds of appeal. Each case has to be looked at in relation to its particular circumstances.

[22]At the end of this determination we set out certain guidelines on this issue. We would emphasise, however, that once these have been reported, representatives should not necessarily expect the same degree of forbearance. Representatives must appreciate the importance when withdrawing grounds of appeal (as opposed to withdrawal of the appeal as such) to clarify the precise extent of, and reasons for the withdrawal, to avoid the danger of an Adjudicator drawing conclusions they did not intend.

[23]Turning back to the particular circumstances of this case, the grounds of appeal appear at one point to assert that a withdrawal of asylum grounds of appeal automatically entitles an appellant to have his claims about adverse experiences in his or her country of origin accepted uncritically. Plainly it does no such thing. Such a contention is no more tenable than its opposite (that withdrawal of the asylum grounds of appeal negates any reliance on such evidence for other purposes: we return to this below). An Adjudicator has to assess the evidence about adverse experiences in that country on the basis of the evidence placed before him. We move on, therefore, to consider how adequately the Adjudicator in this case conducted that assessment.

[24]Although making reference to past and present risk of serious harm, the grounds of appeal to the Tribunal were confined to Article 8. No mention was made of Article 3. The Adjudicator's treatment of difficulties in Kazakhstan in the context of Article 8

[25]Criticism can be made of the Adjudicator's approach at paragraph 16 to this issue. In that paragraph she was wrong (for reasons we have given earlier) to treat withdrawal of the asylum appeal as automatically entailing that she should "attach little weight" to the difficulties the appellant had faced. She wrongly thought that withdrawal of the asylum grounds of appeal proved itself that the appellant had not experienced and would not experience serious harm in Kazakhstan. She was not entitled to make that jump. The fact that one way in which the evidence could have been deployed was withdrawn or discounted did not mean that the same evidence stood to be treated as withdrawn or discounted for all purposes. Even though it was accepted that the degree of treatment on return would not engage Art 3, it should have been kept in mind that hardships might be relevant to an aspect of an Art 8 claim.

[26]However, we do not think this error undermined her subsequent assessment, as elsewhere she clearly did consider to what extent the evidence showed these difficulties posed real obstacles to the appellant's ability to remain in Kazakhstan, and to return there.

[27]Criticism can also be made of the Adjudicator's statement at paragraph 17 in relation to the grant of ELR to the appellant's husband (made because he was a citizen of Afghanistan) that "I have no evidence that her husband's claim was based on any persecution in Kazakhstan". She did have some evidence, in the form of the written and oral evidence of the appellant and the oral testimony of her husband. However, once again, we do not consider that this was a fatal error, since she, the Adjudicator, was plainly intending to indicate the lack of any evidence from independent sources, in particular any evidence to show that the grant of ELR was based on an acceptance by the Home Office of the credibility of all he had said in relation to the situation in Kazakhstan. Given that her husband was from Afghanistan , it must seriously be doubted whether the Secretary of State would have reached any view on his claims in respect to past experiences in Kazakhstan . But in any event, the Adjudicator was essentially right that this was not a case where an appellant's husband has been proved to face a real risk of persecution in the appellant's receiving country (compare in this respect the situation considered by the Tribunal in Soloot (01/TH/1366).

[28]In addition to lack of independent evidence that the appellant's husband faced a real risk of serious harm in Kazakhstan, the Adjudicator clearly also formed the view that upon return the appellant could live with her parents. Since on her own evidence she and her husband had originally lived together with her parents and since she had gone back to live with her parents after her husband had departed, we see nothing unsustainable in that conclusion.

[29]We would agree that the Adjudicator should have made more specific findings on whether she accepted the claimant's account of death threats and church exclusion. However, what she did address and rely on was the fact that the claimant had been able to remain living with her parents for some time and obtain a Czech visa. The Adjudicator also specifically did not believe the couple's claim that she did not know before she left Kazakhstan that her husband had obtained ELR in the UK. Given that on the appellant's own account she had remained in Kazakhstan for several months after deciding to leave, living with her parents who helped her to collect money so that she could travel, we consider that the Adjudicator was quite entitled to find the appellant's action in obtaining a Czech visa as indicative of the fact that her decision to leave Kazakhstan was one of choice, rather than necessity. Mr Holmes was also right to point out that, even if there had been a finding that the appellant faced serious difficulties in her home area, she could have relocated to another part of Kazakhstan to avoid threats from the uncle.

[30]Although therefore the Adjudicator was not entitled to deduce from the fact of withdrawal of the asylum grounds of appeal an acceptance by the appellant that she was not at risk of harm, we consider that she was entitled to conclude that the evidence failed to establish a level of difficulties reaching the threshold of serious harm.

[31]The Adjudicator's finding that conditions for her and her son were not as serious as she claimed were clearly relevant to the assessment the Adjudicator had to make about whether the appellant had a viable option for entry clearance. Following the principles set out by the case of Mahmood [2001 INLR 1 , she correctly recognised that she was not entitled to allow the Article 8 appeal unless satisfied that there were exceptional circumstances justifying the appellant in nor pursuing the option of applying from abroad for entry clearance as a spouse.

[32]Insofar as conditions in Kazakhstan are concerned, we have already clarified that she was quite entitled to conclude, especially in view of the fact that the claimant had been able whilst living at home to make a past application for a Czech visa, that those conditions would not be sufficiently hazardous to prevent her from lodging an entry clearance application to join her husband in the UK.

[33]Insofar as other exceptional circumstances are concerned, we consider the Adjudicator was perfectly entitled to reject the claim that the appellant's pregnancy amounted to exceptional circumstances. As the Adjudicator noted, there were no medical or health difficulties associated with this except for the usual side-effects of pregnancy. In any event, it must always be borne in mind that in the case of any serious health reasons preventing travel, temporary or otherwise, it cannot be assumed that the Secretary of State will act contrary to his obligations to comply with human rights.

[34]Factors relating to delay in the processing of the entry clearance application and separation of the appellant and her young child from her husband were rightly viewed by the Adjudicator, following Mahmood , as not amounting to exceptional circumstances.

[35]The only other point raised in the grounds was the contention that the Adjudicator was wrong to consider that the appellant had a viable option of entry clearance, since her husband only had ELR and so she could not qualify as a spouse seeking to join someone "present and settled" in the UK.

[36]We do not think the Adjudicator erred here. Leaving aside that a grant of ELR for four years normally leads to a grant of indefinite leave to remain and so there was a real prospect that her husband would by August 2005 qualify as someone "present and settled", it remains that:(1) the appellant was entitled to apply for entry clearance and receive a decision on that application; and

(2) in reaching that decision the Entry Clearance Officer would be obliged by paragraph 2 of HC 395 to ensure that his decision did not cause a disproportionate breach of the appellant's human rights: if he thought it would cause a breach of her Article 8 rights, he would be bound to grant entry clearance. Furthermore, (3), if she was refused, she would have a right to appeal in which she could invoke Article 8. In other words, the option of an entry clearance application was viable because it would afford the appellant an effective remedy for any potential breach of her Article 8 rights.

[37]Accordingly, we consider that the grounds of appeal fail to impugn the Adjudicator's principal reasons for concluding that the decision to refuse the appellant leave to enter on asylum grounds did not and would not amount to a disproportionate interference with her right to respect for private and family life. Guidelines on withdrawal of asylum grounds of appeal

[38]In the light of existing confusion on this issue, it is important that representatives take particular care when withdrawing asylum grounds of appeal in the context of an appeal combining asylum and human rights grounds, to make clear precisely what they intend by the withdrawal. Since they do not normally intend to withdraw the appeal as such, but only the asylum grounds of appeal, they should avoid any terminology that suggests withdrawal of the appeal as such.

[39]In cases where a claimant makes or seeks to make a withdrawal of his asylum but not his human rights grounds of appeal, Adjudicators should take particular care, where possible, to clarify what precisely is intended. The party withdrawing should spell out precisely what is still being maintained and what is not:(i) Where the asylum aspect of an appeal is withdrawn, the Adjudicator should ensure that there is no doubt but that this is what is intended;

(ii) The basis on which the withdrawal is being made should be carefully noted – e.g. is it because it is conceded there is effective protection or a viable internal relocation alternative or is it simply, as in most cases of this kind, because there is no Refugee Convention reason of race, religion, nationality, political opinion or particular social group (see paragraph 16 above)?

(iii) Where the withdrawal of the asylum aspect is not prima facie compatible with any continued assumption that the claimant faces Article 3 serious harm or ill-treatment if returned, the Adjudicator will be entitled to find that there is no real risk of such harm, unless there is some particular feature of the case that negatives this.

(iv) However, as a point of best practice and so as to avoid any misunderstanding, the Adjudicator should ask the appellant's representative whether, in the light of the withdrawal on asylum grounds, it is formally conceded that there is no real risk of Article 3 harm.

(v) If it is conceded that there is no Art 3 point but that there is an Art 8 point, adjudicators should not disregard evidence relating to Art 3 harm, since there are reasons why an asylum appeal might not be appropriate even though the risk of some harm remains. Even if it is accepted that the degree of treatment on return would not engage Art 3, it is possible that the hardships might be relevant to an aspect of an Art 8 claim. Any consideration of an Art 8 claim in such circumstances, must, however, be subject to the constraints set out by the Court of Appeal in Razgar [2003] INLR 543 .

[40]For the above reasons this appeal is dismissed. DR. H.H. STOREY VICE PRESIDENT