ON APPEAL FROM THE UPPER TRIBUNAL)
(IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
SIR MARK WALLER
| FA (IRAQ) and PD (INDIA)
|- and -
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Mr Raza Husain QC and Justine Fisher (instructed by the Immigration Advisory Service) appeared on behalf of PD.
Mr Jonathan Hall (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Lord Justice Sullivan:
"(a) the proposed appeal would raise some important point of principle or practice; or
(b) there is some other compelling reason for the [Court of Appeal] to hear the appeal."
See the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 ("the Appeals Order") made by the Lord Chancellor under section 13(6) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"). When deciding whether to grant permission to appeal to the Court of Appeal from determinations of the AIT, second appeal criteria were not applicable.
"The Lord Chancellor may, as respects an application under subsection (4) that falls within subsection (7) and for which the relevant appellate court is the Court of Appeal in England and Wales …by order make provision for permission (or leave) not to be granted on the application unless the Upper Tribunal or (as the case may be) the relevant appellate court considers—
(a) that the proposed appeal would raise some important point of principle or practice, or
(b) that there is some other compelling reason for the relevant appellate court to hear the appeal.
"Permission (or leave) may be given by—
(a) the Upper Tribunal, or
(b) the relevant appellate court,
on an application by the party."
(7) An application falls within this subsection if the application is for permission (or leave) to appeal from any decision of the Upper Tribunal on an appeal under section 11."
"An application may be made under subsection (4) to the relevant appellate court only if permission (or leave) has been refused by the Upper Tribunal."
"3. Where the Asylum and Immigration Tribunal or the appropriate court has made an order for reconsideration under section 103A of the 2002 Act before 15 February 2010, but reconsideration has not taken place before that date, the order for reconsideration shall be treated as an order granting permission to appeal to the Upper Tribunal under section 11 of the 2007 Act and sections 12 and 13 of the 2007 Act shall apply.
4. Where the reconsideration of an appeal by the Asylum and Immigration Tribunal under section 103A of the 2002 Act has commenced before 15 February 2010 but has not been determined, the reconsideration shall continue as an appeal to the Upper Tribunal under section 12 of the 2007 Act and section 13 of the 2007 Act shall apply."
"Where an appeal or application has been determined by the Asylum and Immigration Tribunal before the transfer date but the determination has not been served on the parties before that date, the determination shall be treated as if it were a determination of the First-tier Tribunal or (if it follows reconsideration) a determination of the Upper Tribunal, as the case may be, and the determination may be served accordingly."
Mr Hall submitted that this provision and paragraph 14(4) in schedule 4, which is concerned with the continuing validity of directions or orders, were simply concerned with detailed matters, such as service of decisions for the purpose of time limits and with procedural orders and directions respectively.
"It was accepted by the respondent that the appellant did work at the Palestine Hotel. It is not disputed that many Americans were using that Hotel as their base at the time and that it had been subject to attack. Having said that, one of the matters that caused me the greatest concern in this context was, if the husband was being specifically targeted because of the nature of his work, why did he continue to work there for so long and in the face of apparent repeated threats not just to him, but also to his family? On the Appellant's account [it] was for about 18 months before she left Iraq and then a further five months after that. On each occasion after one of the instances described, he returned to work and appears to have continued to work there for a considerable period before he reunited with his family in Jordan. I did not find that this sat easily with a family fleeing the country because of the dangers generated by his work. I did not [find] any convincing reason had been given for his continuing in employment in the face of the dangers alleged. If there were genuine and serious threats, not only to him but to his family as well, I could not understand how over so many months and continuous returns to work these had not been carried to fruition at work or at home."
"109…I accept that [her employer's] parents' belonged to an influential and higher class family in that area. I accept on the objective evidence and the expert's evidence that they may well be able to exercise influence against her as a low caste widow should she return to the immediate area. I accept that it is reasonable for her to fear this in view of the history of her case. …
110 In such circumstances, I accept it would not be reasonable for her to return to her own area. This is so because she has a reasonable fear of the influence of her employers' family and it is my view from the objective evidence in the expert's report that the family might make it difficult for her in that area to such an extreme nature as might constitute inhuman or degrading treatment. I do not find that it is likely that the family will kill her. ..."
"…There was no evidence that all of the respondent's extensive family had rejected her, even if she was semi estranged from some as Immigration Judge Sharp found and others were not in a position to render her financial support. As Senior Immigration Judge Chalkley pointed out... there was simply no cogent evidence to show that it is reasonably likely that there are any risks to the Respondent in her own area of India which approach a real risk. The discrimination she may well face as a low caste widow does not amount to persecution. There is thus no need for her to relocate at all outside her home area away from her relatives and the district she knows, unless she chooses to do so for the sake of better employment opportunities."
Sir Mark Waller:
Order: FA granted; PD refused