IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE JONATHAN PARKER
|- v -|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
MISS L GIOVANNETTI (Instructed by Treasury Solicitors, Queen Anne's Buildings, 28 Broadway, London, SW1H 9JS) appeared on behalf of the Respondent
Crown Copyright ©
Thursday, 5th April 2001
"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 3Ż years. InáJuly 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. Heáwas 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."
"...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. ... Iáconsider 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."
"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. Iáconsider 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."
"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."
"18.The Court of Appeal in Borrissov  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  Imm AR, at 535)."
"The harassment and persecution which I find he fears on reasonable grounds are likely to be experienced in all parts of Pakistan."
"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."
"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."
"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."
"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."
"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."