ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: AA/09638/2010]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE ETHERTON
| AM (PAKISTAN)
|- and -
SECRETARY OF STATE
FOR THE HOME DEPARTMENT
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Mr V Sachdeva (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Lord Justice Longmore:
"Given the considerations outlined above [viz paragraph 28], I find that the appellant has shown substantial grounds for believing that she would face a real risk of serious harm in her country of origin and that she is unable or, owing to such risk, unwilling to avail herself of the protection of her country of origin. I have borne in mind the objective background material as set out above [that is a reference to paragraph 23.54 of the relevant report, stating that in December 2008 472 women were killed in so called honour killings] and I come to the conclusion that the appellant's removal would cause the UK to be in breach of its obligations under paragraph 339C of the Immigration Rules and under the ECHR."
SIJ Waumsley added that all issues raised in the Secretary of State's notice of appeal could be argued.
"The appeal to the Upper Tribunal is to be heard at 11.30 on Friday [that being 23 July]. If a (material) error of law is found the Tribunal will have to re-make the decision, and it is very likely that an error will be established. The first-instance judge has, for example, dismissed the appeal on asylum grounds because the appellant can access state protection, but allowed it on humanitarian protection grounds because she cannot access state protection.
It seems to me more fundamental has gone wrong here. In her witness statement of 13 July the appellant says that:
'The video is the prime evidence of my basis of claim and fear of persecution and therefore a decision on my asylum claim could be justly determined without the video. The video is annexed herewith on a CD and I wish to rely upon the same.'
Mr Javed, that is the appellant's representative, brought the video with him to the hearing but the facilities for showing it were not immediately available and Mrs Phillips, that is the Home Office presenting officer, did not consider it necessary for the court to view the video. The judge agreed and proceeded with the case on the basis of two stills which were said to be taken from the video. That, it seems to me, was wrong in principle; it is generally an error of law for a judge not to take account of relevant evidence. In the instant case the video is the centrepiece of the appellant's claim, but there is doubt as to its contents. At paragraph 11 of IJ Elek's determination, the appellant seems to be saying that her face is not visible but she recognised herself by her clothes, whereas Amir's face can be seen on the video. That the appellant cannot be recognised by her face is borne out by her anxiety (paragraph 12) to remove a mole from her back which could be used to identify her. At paragraph 15, on the other hand, the appellant says that Amir's face cannot be seen on the video whereas hers is clearly visible. These uncertainties must, it seems to me, be resolved by having the video shown to me and to both representatives who will be able to make submissions on its content. I can leave the rest of the directions there."
Lord Justice Thorpe:
Lord Justice Etherton:
Order: Appeal allowed