England and Wales High Court (Administrative Court) Decisions

SMITH [2000] EWHC Admin 376 (26th July, 2000)

Case No: CO/488/2000

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BECH DIVISION
CROWN OFFICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 26th July 2000

Immigration Appeal Tribunal
ex parte
Parvitter Singh

3. By Article 1A, a `refugee' is defined as a person who `owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.'
4. In R v Secretary of State for the Home Department and the Immigration Appeal Tribunal ex parte Robinson [1997] INLR 182, the Court of Appeal held that the question of whether a person might safely live in another part of his own country where he has no present fear of persecution, goes directly to the question of whether he is a refugee entitled to protection under the Convention. The decision maker should ask whether the applicant can find effective protection in another part of his own country to which he or she may reasonably be expected to move. Put another way, the question may be asked whether it would be unduly harsh to expect the claimant to move to another less hostile part of his own country.

5. In the present case, the Special Adjudicator accepted the applicant's account of his history. Since 1981 he had been a supporter of the Khalistan Liberation Forces, (KLF) a Sikh separatist movement which was a banned organisation. In 1981, the applicant was only 11 years old. From that time he had listened to speeches, passed messages and given food and shelter to members of the group. Although some members of the group used violence including firearms, he had not done so. Between 1984 and 1990, he had been arrested 4 times on suspicion of militant involvement. During detention he had been seriously ill-treated to an extent which amounted to persecution. In 1991, after being blamed for a shooting incident in which he had not been involved, he moved from his village in the Punjab to Tata, Maharasthra in order to avoid a further arrest. He stayed there for 6 months and was not troubled by the authorities during that time. He returned home in 1992, thinking it would be safe to do so but within a short time, several militants in the organisation were killed. He then moved to Uttar Pradesh where he had relatives with whom he stayed for about 3.5 years. He did not come to the attention of the authorities in any way during that time although the Punjab Police continued to come to his family home on occasions. He returned home to the Punjab in 1995, thinking it would be safe to do so, as all his militant former friends were now dead. However, soon afterwards, the Chief Minister of the Punjab, Beant Singh, was murdered and the police arrested many who had been involved in anti-government activity. He decided to leave India. He made his way to the UK via Nepal and Prague and arrived in December 1995. He applied for asylum in January 1996.

6. His application was refused by the Secretary of State in May 1996 and he appealed. The decision of a Special Adjudicator in 1997 was overturned on appeal to the IAT and the case was sent for re hearing by another Special Adjudicator. During this time, in February 1998, the applicant married a British citizen who already had a child. A child was born to the couple in December 1998. At the hearing before the second Special Adjudicator, there was no formal evidence about his family status, but it is accepted that the Special Adjudicator knew of it and the applicant's wife and young child were present at the hearing. Following the dismissal of his appeal to the Special Adjudicator in October 1999, the applicant sought leave to appeal to the IAT as required by Rule 13 of the Asylum Appeals (Procedure) Rules 1996. The notice of appeal complained that the Special Adjudicator had misdirected himself in finding that it would not be unduly harsh for the applicant to relocate to another part of India. The Chairman of the IAT refused leave, saying that the Special Adjudicator had considered that there were other parts of India to which the applicant could go. He said that the Special Adjudicator appeared to have considered all the evidence and had properly directed himself as to the standard of proof. Read as a whole, the decision was a full fair and reasoned review of the applicant's case. In this application for judicial review it is said that the decision of the IAT Chairman was irrational. Consideration of that contention requires an analysis of the Special Adjudicator's conclusion that it would not be unduly harsh for the applicant to relocate in another part of India.
7. In reaching his decision the Special Adjudicator referred to the background material provided by the Home Office on the present state of affairs in India. Sikhs in the Punjab were no longer at risk of persecution on the ground of their religion alone. Support for militants had diminished and by 1998 the Sikh Separatist movement was to a large extent a spent force. However the grievances behind the KLF movement had not been resolved. Civil rights had improved generally in recent years. People had much less to fear from the Police and had greater confidence in seeking judicial recourse if treated improperly. However, the situation was still far from perfect. Ill treatment in custody remained a serious problem. It was against that background that the Special Adjudicator found that the applicant still had a well-founded fear of living in the Punjab.
8. The Special Adjudicator then turned to consider the question of internal flight and posed two questions: first would it be safe for the applicant to live in another part of India and, if it were, would it be reasonable for him to be expected to go to that safe haven? The applicant's evidence on the first point was that he could not live safely in any other part of India because the Punjab Police circulated lists of wanted persons to other areas. He said that Sikhs were sought by the police even in the large cities such as Delhi and Bombay. When it was put to him that the KLF was a spent force, he said that the authorities were suspicious that Sikh militants from the Punjab were joining with the militants seeking the independence of Kashmir. As to the second issue, he said that it would be very difficult for him to live in another area. While in Tata he had been unable to find work at all. Tata is an industrial area and he is a farm worker, not an educated man. He was not qualified for any available work. The languages spoken in Tata are Marati, Hindi and Bengali. The applicant spoke Punjabi and although he could understand a little Hindi, he could not speak well enough to train for industrial work. He came to feel that he was a burden on his relatives, not least because his presence made them feel insecure. In Uttar Pradesh he lived with relatives, who were Sikh and spoke Punjabi. He did unpaid work for them in return for his keep. This could not continue indefinitely. Again, he felt he was becoming a burden to his relations. He said that the present situation was that he now had no contacts in Uttar Pradesh and the economic situation was such that farmers who had always lived there were leaving.
9. As to the first issue, the Special Adjudicator considered background material supplied by the Home Office. He noted but appeared to place little or no weight upon a report put in by the applicant, comprising an opinion from Dr Rai of the Sikh Human Rights Group. Referring to the material put in by the Home Office, he observed that there were large Sikh communities in most Indian cities and virtually all states. For example in Delhi, about 8% of the population were Sikh. During the period of Sikh militancy, there had been an increase in police surveillance of Sikh communities but this had been due to harassment of moderate Sikhs by militants. A CIRB report dated January 1999 opined that Punjabi Sikhs were able to relocate to other parts of India and that Sikhs outside the Punjab were feeling more secure than at any time since the 1984 riots. He noted that there were said to be no checks of any kind on a newcomer to any part of India even if that person were a Punjabi Sikh. Local police forces had neither the resources nor the language abilities to carry out background checks on people arriving from other parts of India. There is no system of registration and many have no identity cards. Sources disagreed as to whether the Punjab Police would pursue a wanted person to another part of India. Some say that this was unlikely unless the person had a high profile or the Punjab Police secured the assistance of the Central Authorities. Others considered that the Punjabi Police would pursue across state boundaries people such as militants and their families and close supporters. `History sheeters', that is those with a history of arrests and detentions would also be at risk of such pursuit.
10. As to that evidence, the Special Adjudicator said that the applicant was not a militant and he was not persuaded that he fell within the definition of a history sheeter. He considered there was no reasonable likelihood that the Punjabi Police would give his name to other police forces elsewhere in India. That he had lived elsewhere for nearly five years, untroubled by the authorities, indicated that he was not of interest to the police. The general situation had improved in recent years and the applicant's position could not be worse now than it had been when he left India in 1995. The Special Adjudicator considered that the Kashmir problems had not made the situation worse. He said: `the applicant was not a militant and gave only low grade help to the extremists. He has been out of the country for nearly 5 years. I am satisfied that his problems were localised. I do not see there to be a reasonable likelihood that he would be known to or at risk of persecution for a Convention reason from the police outside the Punjab.'
11. The Special Adjudicator then considered the second question, whether it would be unduly harsh to expect the applicant to relocate. He said that the burden of proof remained on the applicant and the standard of proof was the ordinary balance of probabilities. He referred to the case of Manohoran v Secretary of State for the Home Department [1998] Imm AR 455. He observed that there were large Sikh communities in many parts of India, in which Punjabi would be spoken. In any event, he considered that most Punjabis understood a little Hindi and could easily learn to speak it. He observed that the applicant is still young, thereby implying that he would be able to learn Hindi without much difficulty. He said that Sikhs had freedom of movement within India. There had been no great difficulty for the applicant in living in Uttar Pradesh. He concluded that it would not be unreasonable for him to relocate elsewhere in India.
12. The application for leave to appeal to the IAT did not allege any specific error of law. It was said that the Special Adjudicator should have accepted the applicant's evidence that he could not be expected to live elsewhere in India. His factual evidence had been accepted as truthful. His opinion that it would be difficult for him to live in Uttar Pradesh should have been accepted. He had given good reasons. The police had begun tracking down people from the Punjab and he had been unable to obtain paid employment while there. Although the application had not raised the issue of the standard of proof, the IAT had noted that the Special Adjudicator appeared to have applied the correct burden and standard of proof. That was germane to this application because the first and main ground of challenge is that the Special Adjudicator had applied the wrong standard of proof to the issue of `undue harshness.'
13. In recent years the standard of proof to be applied to the issue of undue harshness in internal flight cases has been the subject of several reported decisions. Before this year, there were two competing schools of thought. In Manahoran (supra) to which the Special Adjudicator referred, it was said that the burden lay on the Appellant to show on the balance of probabilities that it would be unduly harsh for him to be relocated elsewhere in his own country. In Sachithananthan, (16860) 1/2/99 the IAT held that the appellant had only to show a `serious possibility' or a `reasonable degree of likelihood' that internal flight would be unduly harsh. This was because internal flight is part of the consideration of whether the applicant is a refugee and has the protection of the Convention. The standard of proof applicable to the refugee issue is that set out by the House of Lords in Sivakumaran [1988] 1 AC 958.
14. The uncertainty created by these two schools of thought was resolved by the Court of Appeal on 25^th January 2000 in Karanakaran v Secretary of State for the Home Department (Unreported) Court of Appeal Transcript 25^th January 2000). That decision was handed down after the IAT had refused leave to appeal in this case. In that case, the Court was unanimous in its view that the proper approach to the question of reasonableness or undue harshness was neither the `balance of probabilities' nor a `reasonable degree of likelihood'. The Court said that this question was a matter of judgement and not of proof to any particular standard. Lord Justice Sedley concluded his judgement by saying:
It follows that on the critical issue of internal relocation, no question of the burden or standard arises. The question is simply whether taking all relevant matters into account, it would be unduly harsh to return the applicant to (another part of his country).
15. The point is made that in this case the Special Adjudicator did not approach the case in this way. He applied or at least purported to apply the balance of probabilities. Miss Chapman's submission on behalf of the applicant was that, while the Special Adjudicator could not be criticised for his approach in the light of the law as it was then thought to be, it can now be seen that the decision is wrong. The Special Adjudicator has required the applicant to surmount too high a standard of proof and it is plain that the IAT must now be required to look at the case again. Moreover she submitted, the Special Adjudicator had failed to take all the relevant factors into consideration. He had wrongly disregarded the expert evidence of Dr Rai. Also he had failed to take into account the fact that the applicant was now married and responsible for children. Finally it was said that the conclusion that the applicant did not fall into the category of `history sheeter' was perverse, given that it was accepted that the applicant had been arrested on 4 occasions between 1984 and 1990.

16. Mr Underwood for the Secretary of State submitted that in the light of Karanakaran, the Special Adjudicator's approach was seen to be technically wrong but in fact was unimpeachable. As the Court of Appeal had pointed out, decisions of this kind do not lend themselves to consideration by reference to any particular standard of proof, a concept which is appropriate to a finding of fact but not to a judgement such as this, which is to be reached in the light of many evidential factors, to which different weight might properly be attached. Now that it is accepted that the Manahoran approach is not appropriate, the Court should look at what the Special Adjudicator had actually done. He had taken all relevant material into account and had formed a judgement. His approach could not be criticised. His conclusion was inevitable. It would have been the same whichever test or standard of proof or approach had been applied.

17. On this point, I accept Mr Underwood's submission to some extent. If the wrong approach to the standard of proof could not have made any possible difference to the conclusion, it would not be right to quash the IAT's decision on the ground that the wrong standard of proof was said to have been applied. So, I think it right that I should look first at the various criticisms made of the Special Adjudicator's approach to the facts. If the Special Adjudicator has erred significantly in that regard, the case must go back but if he has not, I must look at the decision in the light of all relevant factors and see whether I think it possible that, had the Special Adjudicator adopted the Karanakaran approach, he could possibly have reached a different conclusion.
18. I turn first to the complaint that the Special Adjudicator wrongly ignored or failed to take adequate account of the evidence of Dr Rai. Dr Rai is an expert on Sikh affairs and his opinions are often before the court in asylum cases. On some occasions he has given evidence. In this case, he did not prepare a report tailored to the circumstances of the applicant. The report before the court, dated March 1998, prepared for another applicant, contained his general opinion on the conditions which apply in India to a person who has been persecuted on account of membership of the Sikh Nationalist movement. He said that no inferences of future safety should be drawn from the fact that a person has been able to live safely in India for a period before leaving. Nor should any inference be drawn from the fact that a person was able to leave openly. He described the position in the Punjab in terms which were rather more gloomy than the impression created by the other reports put in by the Secretary of State. He conceded that the Punjab Government had made some effort to build bridges with the Sikh community but suggested that there remained an atmosphere of mutual distrust. He discussed the policy of the national government on religion and considered that this was causing the current peace in the Punjab to be on a knife edge. Deteriorating relations with Pakistan had engendered a climate of nervousness which would be likely to result in indiscriminate detention, torture and executions of those suspected of involvement in the Sikh Nationalist movement. This assessment was based he said on what had happened in the past. He asserted that human rights continue to be abused and said that the Punjab Government had frustrated all attempts to investigate the thousands of extrajudicial executions which had taken place between 1984 and 1994. That was the position in the Punjab. Dr Rai said that internal flight was not a `realistic proposition' as `there have been some cases in the past whereby the Punjab police has gone as far as Calcutta to detain an individual on their list. People detained from other states have been executed en route from these states.' The Punjab Police were very likely to seek out individuals in India if they came to their notice. Human rights abuses were endemic across India. There is no state with a reasonable record of human rights. Central government had complicity in persecution in various states and took an interest in political refugees. Returned refugees arriving at Delhi airport are stopped, interrogated or followed by central agencies. A person cannot simply disappear into oblivion upon reaching a port of entry. His movements will be followed keenly by central agencies who may decide at an opportune moment to detain him themselves or allow the Punjab police to do so. It would be wrong to assume that the persecution which occurred in the Punjab was in any way exceptional. Other states are affected and are prepared to adopt the same oppressive tendencies as the Punjab. All police forces are corrupt and oppressive. They covered up each others' abuses. He gave examples of police excesses in several areas. The abuses perpetrated by the Punjab Police are worse but not essentially different in kind from those in other states. Finally he said that it was widely believed that central government monitored those returning to India following refusal of asylum. The best that such a person could hope for is to live in permanent hiding. This was not a reasonable way of life.

19. This opinion conflicted in some important respects with the background material provided by the Secretary of State. The Special Adjudicator preferred to rely on the latter. His only explanation for that preference was that he noted that in Chinder Singh, the IAT had said that Dr Rai's evidence appeared to `lack the requirement of objectivity' and had concluded that his evidence should be given little weight. Miss Chapman for the applicant submitted that the Special Adjudicator was not permitted to reject Dr Rai's opinion for that reason. She referred me to the judgement of Buxton LJ in Tarlochan Singh, [2000] Imm AR 36 in which he criticised the approach of the IAT to Dr Rai's evidence. In that case the IAT had said they paid little heed to Dr Rai's view because he had not given live evidence and had not been cross examined. The point could obviously be made that none of the other writers of expert reports had been cross examined. Moreover in another case where Dr Rai had given evidence he had been accepted as an impressive witness. Those criticisms could plainly be made of the IAT's approach in Tarlochan Singh. However, it does not seem to me that what was said in Tarlochan Singh is of any relevance to this case. In the present case, the Special Adjudicator decided not to place much weight on Dr Rai's opinion on the issues of internal flight. Weight is entirely a matter for him. Had he said that it appeared to him that Dr Rai's views lacked objectivity, he could not have been criticised. It is only because he referred (and appeared to defer) to the view of the IAT in Chinder Singh that it is said he has gone wrong. It seems to me that there are obvious reasons why this Special Adjudicator should have thought that Dr Rai's views on internal flight lacked objectivity and should be given little weight. For example, he does not draw any distinction between the risk to `high profile' activists and those who, like this applicant, played a more lowly role. Nor does he apply his mind to the effect of the passage of time since the person was active in the movement. His description of the state of civil rights throughout India is highly coloured. It seems to me that in those circumstances, this decision ought not to be undermined just because the Special Adjudicator mentioned the IAT's reasons for rejecting Dr Rai instead of his own reasons.
20. I deal next with Miss Chapman's submission that the Special Adjudicator perversely refused to treat this applicant as a `history sheeter'. Had he been treated as such, the Special Adjudicator would have been bound to find that it would not be safe for him to relocate in another part of India. The background evidence showed that history sheeters might be pursued to other states by the Punjab Police. Miss Chapman submitted that as the Special Adjudicator had accepted that the applicant had been arrested 4 times between 1984 and 1990 on suspicion of militant involvement, he must satisfy the definition of a history sheeter. I do not accept that submission. The expression history sheeter is not a term of art. Whether a person is to be treated as one is a question of fact and degree for the decision maker. Here, the Special Adjudicator took the view that the applicant did not fall into the category of people who would be of continuing interest to the police. He was not a militant and he had been able to live in Tata and Uttar Pradesh without attracting the interest of the authorities. In my judgement the Special Adjudicator was fully entitled to reach that conclusion on the evidence before him which he accepted.
21. I turn to Miss Chapman's submission that the Special Adjudicator ignored or failed adequately to heed the applicant's evidence about the difficulties he would face in finding employment. I reject this submission. Weight is a matter for the decision maker. In any event, the Court of Appeal in Robinson, at pages 189F to 190B, while providing a list of matters which would be relevant to the issue of whether a person could reasonably be expected to relocate, made it plain that problems such as employment difficulties would rank low on the list or priorities. In my view, the Special Adjudicator took the anticipated employment problems into account but did not give them much weight. This he was entitled to do.
22. Finally in this category of complaint, I consider Miss Chapman's submission that the Special Adjudicator wrongly failed to have regard to the Applicant's marital status and family responsibilities. She submitted that these were relevant matters. She was not able to say that any submissions had been put before the Special Adjudicator on this topic or that the point had been raised in the notice of appeal to the IAT. It had been raised for the first time in these proceedings. Asked to say how this factor was relevant Miss Chapman was minded to submit that it was unreasonable to expect the family to be uprooted from its home in England. However, she recognised that that was not a proper consideration in the context of a claim for asylum. In the end she was content to submit that family responsibilities were relevant because it would be unreasonable to expect a man who had to provide for a family to return to a place where he would have difficulty in finding work. Looked at in that way, this is no more than an additional factor under the general heading of employment problems. Mr Underwood was reluctant to be drawn into any detailed discussion of this point. The point had not been taken below and it was not a point of such obvious relevance that the IAT should have taken it of its own motion. I accept that submission. In any event, as I have just observed, problems of employment are relatively low in the hierarchy of factors which the decision maker must take into account in deciding the undue hardship issue. The Convention is based upon a need to protect from danger and is not intended to save people from the inconvenient and even disruptive consequences of relocation.
23. Having considered and rejected all the criticisms made by the applicant of the Special Adjudicator's findings of fact, I return to consider whether, bearing in mind those findings, he could possibly have come to any different conclusion had he approached his task as required by Karanakaran. I am quite satisfied that he could not. Once he had rejected Dr Rai's opinions, and once he had found that the applicant could not properly be described as a `history sheeter', there was no evidence pointing to any danger for him, other than in the Punjab. Other considerations related only to the problems of finding employment. It would have been a surprising decision were the Special Adjudicator to have found that it would be unduly harsh to expect him to relocate solely for such reasons.
24. In my view, there is much to be said for Mr Underwood's submission, that this decision was not taken `on the balance of probabilities', even though the Special Adjudicator said that it was. I respectfully agree with the Court of Appeal when they said that a decision on `undue harshness' cannot sensibly be made by reference to any standard of proof. I think that the Special Adjudicator's thought processes were more likely to have been simply the formation of a judgement, taken on the evidence as a whole. In any event, I am satisfied that on the facts of this case, which ever way he had approached his decision, he would have reached the same conclusion. This application must therefore be dismissed.
C O S T S

MR UNDERWOOD: I ask for the usual order.
MRS JUSTICE SMITH: Have you any observations, Miss Chapman?
MISS CHAPMAN: Only to note that the applicant is legally aided, to bear that in mind.
MRS JUSTICE SMITH: You have no objection to my making the usual order?
MISS CHAPMAN: No.
MRS JUSTICE SMITH: The application is dismissed and the applicant will pay the defendant's costs but the determination of his liability for such payment will be postponed pending further application. The applicant shall have legal aid taxation and detailed assessment of legal aid costs.
MR UNDERWOOD: I am very grateful.
MISS CHAPMAN: My Lady, there is one further application. I am instructed to seek permission to appeal on the basis of a number of reasons. Firstly, the applicant's credibility with regard to (inaudible) well-founded fear of persecution. Secondly, in relation to the subjective element, the fact that the judgment does not deal in great detail with whether or not that is part and parcel of the so-called "internal flight alternative" issue --
MRS JUSTICE SMITH: Just let me note what your first point was.
MISS CHAPMAN: This is essentially on the ground of the fact that the applicant is found to be credible; he has a well-founded fear of persecution at least in one part of India.
MRS JUSTICE SMITH: What do you say about why leave should be granted in respect of that? I have dealt with the point. Do you say I have dealt with it wrongly?
MISS CHAPMAN: My Lady, that was really, in one sense, by way of background, in terms of prospects of success, given that the general factual matrix is positive in this applicant's case, unlike a number of other cases -- there is just one legal issue and so, from that point of view, not succeeding on, for example (inaudible).
MRS JUSTICE SMITH: No, but the view that I took, and I want to hear what you say about that, is that the special adjudicator had really found that all the facts that were relevant to the issue of internal flight pointed in the direction of him being safe in another part of India regardless of his entirely acceptable credibility on issues of fear of persecution in the Punjab. Just because he is a truthful person in so far as that is concerned, or may be entirely truthful, why does that mean that he must automatically be entitled to asylum and not safe in another part of India?
MISS CHAPMAN: My Lady, that point was really in relation to the general aspect of any appeal. Perhaps if I might treat it like that, as a sort of preliminary point.
MRS JUSTICE SMITH: All right.
MISS CHAPMAN: The main point in my submission is the issue raised by the so-called subjective element, which in this case relates to the applicant's individual circumstances, his marital status and family responsibilities in this country.
MRS JUSTICE SMITH: Have I correctly summarised your eventual submission on his marital circumstances, because I recall discussing your submission on that point and it quite clearly had arisen very much, as it were, on the hoof, not quite, but it certainly had not been a point that was argued below. Do you see how I have described your submission?
MISS CHAPMAN: I do.
MRS JUSTICE SMITH: That really it is an additional feature of the problems that he would face if required to live elsewhere in India. Is that a fair summary of your submission, or do you seek to say that there really should be a consideration that he ought to be allowed, as a matter of principle, to stay in this country because he is now a married man and it would be wrong to disrupt him, because I cannot see that that has anything to do with asylum law.
MISS CHAPMAN: My Lady, I accept that. That is a separate issue.
MRS JUSTICE SMITH: Right. Do you accept what I have said about that, that that aspect of it is an inappropriate consideration in a claim for asylum, or do you challenge that?
MISS CHAPMAN: I do to the extent that it must be part of all the considerations that a special adjudicator should take into account when considering whether or not it would be unduly harsh for an applicant to relocate.
MRS JUSTICE SMITH: But the considerations of whether it would be unduly harsh must focus, must they not, on it being unduly harsh in India, not unduly harsh because he will have to sell up his house in England?
MISS CHAPMAN: My Lady, yes. The date of the assessment is the date of the hearing here, so therefore it would be artificial to take the applicant out of the circumstances (inaudible).
MRS JUSTICE SMITH: I want to understand what your submission is on this. A moment ago you said you accepted my approach to it, which was that his marital status and family responsibilities were relevant only to the question of how hard it would be for him to settle in India, not whether it would be hard upon him to expect him to disrupt himself and his family from the life in England that he has now been settled into for four or five years. It seems to me that the two things are distinct issues. I have said in my judgment that I think that the English end of it is irrelevant to an asylum application. I want to know whether you seek to challenge that.
MISS CHAPMAN: I do to the extent that I think, purely in relation to the internal flight issue and in no other way, in respect of the asylum, either the claim or appeal, that an applicant's circumstances in this country do have a bearing on his relocation in the country of origin. Purely in relation to the internal flight issue and in no other sense.
MRS JUSTICE SMITH: Of leaving England with his family?
MISS CHAPMAN: In respect of his family responsibility. It may not apply in all cases.
MRS JUSTICE SMITH: The disruptive affect on his family of having to leave England at all, wherever he goes.
MISS CHAPMAN: My Lady, that was what I meant with respect to my submission about the subjective element.
MRS JUSTICE SMITH: That is the point you want to make?
MISS CHAPMAN: It is. I am grateful.
MRS JUSTICE SMITH: Do you want to say anything about that, Mr Underwood?
MR UNDERWOOD: My Lady, it is a simple point.
MRS JUSTICE SMITH: It is a point that you were not willing to argue because you said it had not been properly taken below.
MR UNDERWOOD: It was not taken at all, my Lady (inaudible).
MRS JUSTICE SMITH: By the special adjudicator? Was it not mentioned in the notice of appeal to the IAT?
MR UNDERWOOD: I am almost certain it was not.
MISS CHAPMAN: My Lady, I accept that it was not specifically raised in the grounds to the IAT.
MRS JUSTICE SMITH: And I know it certainly was not argued, although the fact was apparent with him being a married person, and I have mentioned that in my judgment. Is there anything that you want to say, Mr Underwood?
MR UNDERWOOD: Simply that it may be an interesting point, it may not be. (inaudible).
MRS JUSTICE SMITH: No, I am not prepared to grant leave, first of all, because I do not think that the point is a good one in any case, but it was not taken at the appropriate stage and therefore, in my judgment, it does not really arise in this case. If you wish to pursue the point you will have to persuade the Court of Appeal that it should be considered by them.