England and Wales High Court (Administrative Court) Decisions

“3. In considering your application the Secretary of State noted … that during the 1980s and early 1990s the inhabitants of Punjab, both Sikhs and Hindus, were subjected to an increasingly violent campaign of terrorism and violation of human rights by Sikh extremists who supported the establishment of an independent homeland …

4. The Indian Government deployed security forces to counter the terrorist threat and the Secretary of State considered this was a proper and necessary measure for combating serious terrorist crime, for maintaining law and order and for protecting the civil, political and human rights of members of the community in Punjab of all races and religion.

5. The Secretary of State is aware from the various sources of information available to him (including the US State Department Reports on Human Rights Practices and reports from the Canadian Documentation Information and Research Branch) that, apart from isolated acts of terrorism, Punjab has been peaceful since 1993. This has resulted in resurgence in social, political and economic life in the State. Sikh militancy in Punjab has been severely weakened and virtually eliminated.

6. However, the Secretary of State, having considered all the available evidence, does not consider Sikhs in India to be a persecuted group who have a claim to refugee status under the 1951 United Nations Convention relating to the Status Refugee simply by virtue of their religion or ethnic origins.

7. The Secretary of State also noted that your claim was extremely vague and lacking in detail … [a summary is then given of the Secretary of State’s reasons and conclusions] … In view of the above the Secretary of State is of the opinion that you are a stranger to the truth and he has serious doubts over your personal credibility and the veracity of your claim as a whole. He noted that it would appear that your asylum claim has been fabricated purely for you to be able to remain in the United Kingdom. He considers that your failure to answer the questions at your asylum interview indicates that your motivation for claiming asylum in the United Kingdom may be based on a desire for economic betterment and not a fear of persecution … In the light of this the Secretary of State does not consider that there is a reasonable likelihood of your being persecuted by the Indian authorities, nor can he find any basis in fact to your claim that your life would be in danger if you were now to return there.

8. Nevertheless in the highly unlikely event that you are telling the truth, the Secretary of State has considered your claim fully and in doing so he noted that it would appear that you have never been a member of any political party or organisation in India.

16. In the light of all the evidence available to him, the Secretary of State has concluded that you have not established a well founded fear of persecution and that you do not qualify for asylum. Your application is therefore refused … In addition the Secretary of State certifies that your claim is one to which paragraph 5(2) of Schedule 2 to the 1993 Act (as amended) applies because you are liable to be sent to a designated country; and that your claim is one to which paragraph 5(5) does not apply because the evidence you have adduced does not establish a reasonable likelihood that you have been tortured in India.”

“(2) This sub-paragraph applies to a claim if the country or territory to which the appellant is to be sent is designated in an order made by the Secretary of State by statutory instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution. ”

“5(1) This paragraph applies to an appeal … if the Secretary of State has certified that, in his opinion, the person’s claim on the ground that it would be contrary to the United Kingdom’s obligations under the Convention for him to remove from, or be required to leave, the United Kingdom, is one to which –

a) sub-paragraph (2) … applies;

b) sub-paragraph (5) below does not apply.”

A certificate under sub-paragraph 5(2) of the Schedule thus means that an asylum applicant whose application is refused by the Secretary of State and further dismissed on appeal to a Special Adjudicator has, unlike other asylum applicants, no second tier appeal to the Immigration Appeal Tribunal; unless his circumstances bring him within the provisions (which, as appears above, the Secretary of State found on the facts to be inapplicable to this Claimant) of sub-paragraph 5(5) of the Schedule. This, by virtue of sub-paragraph 5(1)(b) of the Schedule, disapplies the provisions of sub-paragraph 5(2) if the claim for asylum is one in which “the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent”.

i) rejected the Claimant’s case on grounds of credibility;

ii) concluded that, although he came from the Punjab, he had not been involved in politics or in any terrorist activities, and was satisfied that there was no risk of persecution of the Claimant if he were returned to India;

iii) upheld the certificate, rejecting the Claimant’s case by reference to paragraph 5(5).

i) It is in any event necessary for the Claimant to indicate the nature of his desired factual challenge to the Special Adjudicator’s decision, if only because it might otherwise be urged against the Claimant that, if he were otherwise to succeed in respect of one or more of his challenges to the certificate, because success would be of no value to him as he would have no chance of a successful appeal, relief should be refused. Subject to that argument, the matters themselves would not be of relevance on this Application if he were successful on any of the designation, discretion to certify or torture issues, as they could be put before the Immigration Appeal Tribunal in any event application for leave to appeal.

ii) If the Claimant be unsuccessful on his challenge to the certificate, then there is no second tier appeal, and the fifth to eighth issues would have to stand or fall on their own by way of challenge on ordinary judicial review grounds to the Special Adjudicator’s Decision.

The Designation Issue

“10. The main issue … [is] … whether or not the Order was valid insofar as it identified Pakistan as a country in respect of which there was ‘in general no serious risk of persecution’. … The argument of the Applicants … [is] … that no reasonable Secretary of State, directing himself properly to the issues, could have come to the conclusion that there was in general no serious risk of persecution, bearing in mind in particular (i) what was known about the position of women in Pakistan, and (ii) what was known about the attitude of Pakistan authorities towards Ahmadis …

“This assessment has been produced … from information from the Foreign & Commonwealth Office and a range of independent external sources. The information has been prepared as a background to those concerned with the asylum determination process. The information represents the current assessment of the Immigration and Nationality Directorate of the general socio-political and human rights situation in India. Further additions will be issued as these circumstances change and new relevant information becomes available. ”

“This document was placed before Parliament to aid the debates on the designation Order … The Assessment represented the UK Government’s view of the situation in India and, at the time, it was thought that precise attribution to individual press reports would not necessarily offer greater authority to the document. The Assessments were drawn from a wide range of sources, including information from other Governments, from non-governmental organisations such as UNHCR and Amnesty International, press and other reports, and analyses and advice from the Foreign & Commonwealth Office.”

“1. Economic and Social Situation

… The Indian economy is the sixth largest in the world according to IMF studies … However, it has a number of serious structural problems and India is one of the twenty poorest countries in the world … There are areas of great poverty, and in agricultural areas such as the Punjab, the poor farmers have an economic motive in claiming asylum overseas.

2. Recognition Rates for Asylum Applicants

There were some 2,000 asylum applications from Indian citizens in 1994 and 3255 applications by the end of 1995 – a substantial increase. Virtually all Indian asylum applications are refused. Of the 1450 cases decided in 1994 and the 2010 decided in 1995 fewer than ten were granted asylum (taking the two years together). Sikhs from the Punjab continue to make up the great majority of Indian applications despite the considerable improvement in the situation in the Punjab and the decrease in separatist violence there.

11. Security Situation

(i) Punjab

Militant unrest in Punjab, which was under direct rule from Delhi from 1987 – 1992, has now largely subsided. The Sikh campaign for greater autonomy continues to be an issue, but the restoration of relative calm has meant it has recently been possible again to hold elections in the state. Participation in elections has risen steadily since 1992 whilst violence has reduced significantly. There was a high turnout for Parliamentary elections in Punjab in April 1996, and they passed off peacefully. There were only four terrorist-related deaths reported in 1995 compared with over 4,000 deaths during 1992. The economy of Punjab, traditionally India’s most prosperous state, is again flourishing.

(ii) Kashmir

The situation in the Kashmir valley remains serious. Violence continues between militants seeking secession from India and the Indian security forces. There have been human rights abuses by the security forces and frequent attacks on civilians by militants. An estimated 200,000 Hindus have fled the valley since 1990 and many are now living in refugee camps in other parts of India. But they are not a major source of asylum applicants in the United Kingdom. India continues to pursue a tough counter-insurgency policy. Some 300,000 members of the Indian security forces are deployed in Kashmir to face the threat from the militants. The Indian Government held Parliamentary elections in Kashmir in May 1996 and in July announced that State elections would be held there in September …

12. General Situation and Prospects

Most of India is generally peaceful. Whilst there is still evidence of human rights abuses, particularly in Kashmir, the Indian Government has taken a number of steps to meet international and domestic concern about the human rights situation.

13. General Human Rights Situation

The Indian Government established a National Human Rights Commission (NHRC) in 1993 to investigate alleged abuses. Access to Kashmir has also been given to International Human Rights Organisations, including the International Committee of the Red Cross. The NHRC has identified torture and deaths in detention as one of its priority concerns. It has directed district magistrates to report all custodial deaths within 24 hours and stated that failure to do so will be interpreted as an attempted cover-up. The NHRC issues reports and has been critical of the abuses by the security forces in Kashmir.”

i) Even on the basis of that account in the Country Assessment Report, no reasonable Secretary of State could have been satisfied that there was in general in India no serious risk of persecution.

ii) In any event this was an inadequate account in the light of other material available to the Secretary of State, which either was not properly appreciated or was ignored or omitted.

i) The situation in Punjab was in 1996 very much improved, if not entirely resolved, as is apparent not only from the passages cited from the Home Office Country Assessment of August 1996 but even from the passages relied upon in addition by the Claimant. Mr Walsh’s evidence at paragraph 12 of his witness statement is as follows:

“12. In 1996 the view of the government was that it accepted that Punjab had experienced serious abuses of human rights. It was noted that reports at the time alleged continuing abuses in Punjab. Nevertheless, it was noted that there was wide acceptance that the situation in Punjab had returned to normality. Various elections had been held since 1992 and participation had risen steadily on each occasion. This had coincided with a significant reduction in violence and far fewer deaths. The economy was once again flourishing.”

ii) As for Kashmir, paragraph 11 of Mr Walsh’s witness statement reads as follows:

“11. In 1996 the view of the Government was that the situation remained serious in Kashmir. Violence was continuing between militants seeking secession from India and the Indian security forces. There were human rights abuses by the security forces, and frequent attacks on civilians by militants. However, it was felt that there were signs of improvement: Parliamentary elections were held in Kashmir in May 1996, and the new United Front Government held State elections there in September 1996. Militant leaders had been released from prison, and the [ICRC] was able to make substantive visits to detention centres. It was noted that Amnesty International and the US State Department Report alleged that there continued to be extra-judicial executions, torture, rape and reprisal killings by security forces, deaths of suspects in custody and detention for long periods without charges under special security legislation. However, the Indian Government had taken action to counter the situation and the 1996 US State Department Report referred to significant progress being made in resolving human rights problems. [I refer to the passage cited at paragraph 18(i) above]. The [TADA], special security legislation under which thousands were held for long periods without charge, had been allowed to lapse.”

iii) The Chahal case relates to the position of Mr Chahal, which was summarised by the Commission in its report at paragraph 112 at page 446 (“As a leading Sikh militant, who is suspected of involvement in acts of terrorism, and who is to be deported because of the threat he poses to the security of the United Kingdom, … [he] … is likely to be a person of special interest to the security forces, irrespective of the part of India to which he is returned”). The materials upon which at any rate the Commission relied upon are not likely to have been so up to date as those considered by the UK Government in August 1996, and insofar as reference is made by the European Court itself to the US State Department and Amnesty Reports, they are the same reports as were considered by the Respondent. With regard to the State Department Reports, Mr Qureshi points to the fact that in another, later, decision of the Immigration Appeal Tribunal per Judge Pearl (Chinder Singh v Secretary of State for the Home Department [1998] IAR 551 at 564) the Tribunal has pointed to “the caution which must be given to the US State Department Reports”, which appears to refer to an inadequate recognition of the improved situation. In any event the very passages relied upon in such reports indicate, even highlight, the improvement even in Kashmir, but certainly in Punjab: “only two persons” killed in armed encounters between Police and Sikh militants (compared with substantial problems previously) has become in paragraph 102 of the European Court’s judgment in Chahal “the 1996 State Department Report referred to the killing of two Sikh militants that year”. The passage relied upon from the Amnesty Report is not specific to 1995, but refers to reports “in recent years”.

iv) The Respondent points out that Jammu and Kashmir so far as population is concerned amounts to 0.76% (7,718,700) of the population of India and so far as area is concerned 2% (101,387 sq. kms) of the total area, and Punjab contains 2% of the population (20,201,969) and 1.5% of the area (50,362 sq. kms).

v) The approach which the Respondent took and takes is submitted by Mr Qureshi to be exemplified by the asylum policy which the Respondent has adopted, and which was made clear in the published policy instructions for 1996 when designation was introduced, as follows:

“Designation does not mean that we consider a country to be universally safe or free from persecution. For example, a designated country may have regions where human rights abuses are taking place, but will have been designated because it is considered reasonable to expect those fleeing such troubles to go to other parts of the country, where conditions are considered largely safe. Case workers should therefore be alert for the exceptional individual case where there may be a real risk of persecution. The designated country may have categories of persons, such as minority religious or ethnic groups, who may be at a slightly higher risk than the population as a whole. We cannot however under the Act designate a country where there is a serious problem of persecution, even if those at risk constitute only a minority within the country”

i) The position in relation to women in Pakistan was, as is clear from the passage cited in paragraph 13 above, founded upon the conclusions in and arising out of Islam and Shah in the House of Lords, namely that there was universal and institutionalised risk to women in Pakistan. Such risk of persecution was thus plainly a general one, relating to a significant number of people and throughout Pakistan. See per Lord Phillips MR at paragraph 64:

“We are … in no doubt that the evidence which led the House of Lords to find that there was, in general, discrimination against women in Pakistan also led them to find that there was in general a risk of persecution of women in Pakistan. Nor are we in any doubt that this was a serious risk. The evidence that founded the conclusion that women were, in general, subject to discrimination in Pakistan was, in large measure, evidence of failure to protect them against persecution.”

ii) Mr Qureshi points to the fact that in relation to the position of Ahmadis, notwithstanding the existence of a substantial body of evidence of Ahmadis being persecuted or discriminated against, and not limited to a particular area of Pakistan, yet at paragraph 76, as cited above, the Court of Appeal concluded that “had the evidence in relation to Ahmadis stood on its own, we would not have found it incompatible with the Secretary of State’s conclusion that there was in general no serious risk of persecution in Pakistan”.

iii) The Respondent relies primarily on what he submits to be the central reasoning lying behind the conclusion of the Court of Appeal in Javed, namely contained in paragraph 57 of the judgment:

“The language defining the state of affairs that had to exist before a country could be designated was imprecise. Whether there was in general a serious risk of persecution was a question which might give rise to a genuine difference of opinion on the part of two rational observers of the same evidence. A judicial review of the Secretary of State’s conclusion needed to have regard to that considerable margin of appreciation. There was no question here of conducting a rigorous examination that required the Secretary of State to justify his conclusion. If the applicants were to succeed in showing that the designation of Pakistan was illegal, they had to demonstrate that the evidence clearly established that there was a serious risk of persecution in Pakistan, and that this was a state of affairs that was a general feature in that country. For a risk to be serious it would have to affect a significant number of the populace.”

i) Even if the information set out in the country assessment does not itself establish or prove that there is in general no serious risk of persecution in India, at the very least the content of the evidence, together with the valid and reasonable interpretation of the evidence which is not specifically referred to in it, gives rise to a genuine difference of opinion on the part of two rational observers of the evidence, such that the Secretary of State’s conclusion cannot, unlike that in Javed, be characterised as irrational, or it falls within the considerable margin of appreciation.

ii) Particularly given the difficulty for a court on judicial review of conducting a rigorous examination, such examination as can be carried out so as to require the Secretary of State to justify his conclusion enables the Court to be sufficiently satisfied, and certainly does not clearly establish the contrary.

iii) The evidence before the Secretary of State, now looked at again before the Court, does not establish that the state of affairs examined in India was “a general feature in that country”.

iv) The matters highlighted do not “affect a significant number of the populace”.

Conclusions

i) I agree with the Respondent that paragraph 57 of the judgment in Javed is central to my conclusion, and that by reference to Javed the evidence in this case fails to satisfy me that the Secretary of State was irrational in designating India. I would add the following:

ii) The words of Lord Phillips do to my mind preclude the suggestion that “in general” simply means “recurring” or “ongoing” or “predictable”. I do not necessarily conclude that the fact that a problem is localised must mean that it cannot lead to a conclusion that there is a problem in the country in general. There may be a spillover into the rest of the country: there may be a national impact resulting from it: the way that the particular region is treated may be indicative of a failure in the system as a whole: the minority being persecuted in the region may also be discriminated against in other parts of the country: those being abused in the particular region may amount not to a minority but to a majority, or to so substantial a number as to enable some more general conclusion to be reached about the country or regime as a whole. But on the facts before me I am not persuaded that the evidence established, clearly or otherwise, to a reasonable Secretary of State that there was a risk of persecution which was a “general feature” in India, and I am certainly satisfied that a decision to the contrary was well within his considerable margin of appreciation. Further, whereas of course even 0.76% of the population of India is a substantial number of people, nevertheless on the evidence the human rights abuses affected only a small percentage of that small percentage, such that it would be difficult to conclude that, in the context of India in general, a significant number of the populace was affected.

iii) The summary in the country assessment may be short, and the later assessments I have seen are considerably fuller, but it was based on underlying information, and, on the basis of what I have seen, I do not conclude that it either inaccurately summarised or inaccurately considered or ignored any of that information. The overall position in Punjab was one of considerable improvement, even though not perhaps absolute stability and safety: the position in Kashmir was recognised to be still a problem, but not one such as to lead to a conclusion that there was in India in general a serious risk of persecution.

iv) As to the question posed with regard to Nazi persecution in 1930s Germany by Mr Drabble QC, the answer in my judgment is that no reasonable authority armed with the relevant information in the 1930s could have failed to conclude that the risk of persecution was a general and serious one: it was neither localised nor did it affect an insignificant number of the populace.

The discretion to certify issue

“1. INTRODUCTION

A case worker who decides to refuse a claim for asylum should then consider whether the claim should be certified for the purposes of appeal, in accordance with paragraph 5 of [the] Schedule …

This instruction sets out the criteria for certifying claims, the circumstances under which claims should not be certified, and the accelerated appeal procedures applied to such claims.

• Claims should be considered for certification only after they have been substantively considered on their merits against the criteria of the 1951 Convention. Case workers should never proceed on the basis that because an application would be eligible for certification if refused there is a presumption towards refusal.
• A claim should never be certified where there is a reasonable likelihood that the applicant has been tortured in the country or territory to which he is to be sent whether for a Convention reason or not.

2. CRITERIA FOR CERTIFICATION

The certification provisions … apply to all decisions made after … on 21 October 1996 irrespective of the date of application. Claims can be certified irrespective of the immigration status of the applicant.

2.1 Qualification for Certification

Subject to the exceptions set out in 2.2 below, case workers should normally certify a claim if it falls under one of the categories set out below:

• the applicant is from a country designated by the Secretary of State (designated countries of destination) … …
• A case worker should not certify a claim if it falls under any of the exceptions set out in sub-paragraph 2.2 below.

2.2 Exceptions to the Certification Criteria

A claim should not be certified if any of the following apply:

• there is a reasonable likelihood that the applicant has been tortured in the country of territory to which he is to be sent whether for a Convention reason or not (see the instruction on Torture;
• any of the issues raised by the case are particularly complex. Such exemptions, however, are likely to be infrequent;
• exceptional leave has been granted;
• the claim is being refused on the grounds of non-compliance.

5. DESIGNATED COUNTRIES OF DESTINATION

Paragraph 5(2) of [the] Schedule … provides for the Secretary of State to designate, by order, countries where it appears to him that there is, in general, no serious risk of persecution. Where a claim from a national of a designated country has been considered and refused there should be a very strong presumption that the claim will be certified. However the claim should not be certified where any of the criteria mentioned in paragraph 2.2 are met.

5.2 Assessing Claims from nationals of designated countries

Case workers should assess all claims from nationals of designated countries on their own merits against the criteria in the 1951 Convention as set out in the UNHCR Handbook. On no account should a case worker presume that an asylum claim should be refused merely because the applicant is from a designated country.

Case workers should ensure they are aware of the assessment which led the Secretary of State to conclude that there is in general no serious risk of persecution in that country. A briefing paper on each of the designated countries, setting out the Home Office’s assessment of conditions in it, was made available to Parliament prior to its approval of the designation Order. Copies of these papers, updated as necessary, are available to case workers and adjudicators and should be annexed to the PF1. For further information please see the instruction on Country Information.

[The following passage is very similar to that in the Instructions for 1996 which I have already referred to in paragraph 20(v) above, but I repeat it now for the sake of completeness and because it is of importance in the argument on this issue.]

Designation does not mean that the country is considered to be universally safe or free from persecution. A designated country may, for example, have regions where human rights abuses are taking place but will have been designated because it is considered reasonable to expect those fleeing such troubles to go to other parts of the country where conditions are considered to be largely safe. It may also have categories of persons, such as minority religious or ethnic groups, who may be at a slightly higher risk than the population as a whole.

Case workers should assess each case on its own merits, remaining alert for those cases where, notwithstanding the overall assessment of the country, there may be evidence for a real risk of persecution.

The country assessment giving rise to designation will nevertheless often be relevant in assessing credibility or significance of the grounds advanced in a claim. For example assertions by the applicant about the level of persecution in a country will be likely to lack credibility if they conflict with the Home Office’s own assessment of the country, unless the assertions are accompanied by compelling new evidence.

5.3 Interviews

At interview, applicants from designated countries must be given the opportunity to put forward any special factors which may indicate that there is an increased risk of persecution in their case. The case worker must, as usual, ensure that any grounds that may justify exceptional leave are also obtained at interview.

5.4 Reasons for Refusal Letters

Case workers should not argue the case for designation of countries in individual refusal letters but a copy of the disclosable brief of the country concerned should be annexed, in all cases, on the PFI. Where a claim relies solely on allegations about the general situation in a designated country with no special individual circumstances, refusal can be based on the assessment contained in the Home Office country brief. If specific reference is made to the Home Office country brief in the reasons for refusal letter, a copy must be attached to the refusal letter. Cases where the applicant puts forward no individual circumstances are, however, likely to be rare.

Where other factors relating to the applicant’s own circumstances are put forward these need to be addressed in the normal way.

When refusing an application, the reasons for refusal letter must address the merits of the claim in the normal way. As in other cases, the letter must clearly state why the grounds put forward by the applicant do not show a well founded fear of persecution under the terms of the 1951 UN Convention.”

“19. At the time of the issue of the Country Assessment in August 1996, it was envisaged that these assessments would be updated as key circumstances changed or new relevant information became available. It was eventually decided that a dedicated Unit should be set up dealing with all aspects of country research, information and policy. This led to the creation of the Country Information and Policy Unit (CIPU) in late 1997. The first version of a more comprehensive India Assessment was issued in February 1998, and the sources used were fully attributed.

20. Since February 1998, Country Assessments have drawn on a wide range of sources and it is intended to portray the country situation as accurately and objectively as possible. The vast majority of the source material is readily available in the public domain. The information the Assessments contain is not exhaustive, nor is it intended to catalogue all human rights violations – it concentrates on the issues most commonly raised in asylum claims made in the United Kingdom. The Country Assessment for India includes sources such as the US Department of State, Amnesty International, Reuters News Service, BBC News, and Indian and UK newspapers.”

i) The discretion, which undoubtedly does exist, to certify (or not) should not be fettered, and it is so fettered by the terms of the Asylum Directorate Instructions, which are insufficiently wide.

ii) The provision within the Instructions for exceptions is insufficient, because it is in terms limited to where “any of the issues raised by the case are particularly complex”.

iii) If he has failed on the first issue and the construction of paragraph 5(2) is such that localised problems or “hotspots” are or may not be sufficient to render such risk in general in the country in question, that very construction should argue for a more liberal interpretation of the discretion, so as not to certify where the person in question comes from such a hotspot and/or is arguably affected by the localised issue and related abuses, if they exist.

iv) The Claimant in this case comes from such a hotspot and is at relevant risk from it.

i) Paragraphs 5.2.28-38, which begin “Various human rights organisations have strongly criticised the Punjab police for their misuse of power during the 1980s and early 1990s”. The Respondent plainly had this in mind in the refusal letter at paragraph 3, which I have set out in material part in paragraph 1 above, and it is, though of course not unimportant, of historical relevance only. Paragraphs 5.2.39-41 refer to the active prosecution of (and civil suit against) security forces personnel since 1995, relating to the earlier period, emphasising this substantial change and approach.

ii) In paragraphs 5.3.107-117 the current situation in the Punjab is described. Material passages include the following:

“110. The [Canadian] panel agreed that the central government has been attempting to reign in the Punjab police, who during the insurgency were responsible for large numbers of extra-judicial executions and disappearances. Investigations into allegations of human rights abuses have sent a strong signal that the climate of impunity for the Punjab police is ending, even though that climate has been deeply ingrained over many years and will take a long time to change. Reference is also made to the extensive human rights training for the police in India, which is seen as an example of the general trend in India towards recognising and addressing systemic problems with the police.

111. The Supreme Court was seen as clearly attempting to address the failure of the judiciary up until the mid 1990s to deal with human rights violations. Judicial protection in Punjab improved and many people were using the judicial system. People who are not high profile militant suspects are not at risk in Punjab. They have much less to fear from the police and now have better access to judicial recourse if they are treated improperly.

114. Sikhs are coming forward in increasing numbers to press claims against the authorities and people are beginning to have faith in the judicial process. Sikhs are bringing cases to human rights lawyers to be taken up in court, rather than to human rights groups for investigations, even though there are few lawyers taking on this type of work. However the human rights organisations were sceptical about the outcome of court cases against police officers, since the government is providing senior lawyers to defend them and is still posting many officers to areas where they are alleged to have committed abuses.

115. Dr Cynthia Keppley Mahmood of the University of Maine agrees that conditions in Punjab are greatly improved since the worst days of the early 1990s, and that it is no longer accurate to say that any Sikh is at risk of persecution simply because of his or her religion. She refers to the work of the [NHRC] and the prosecutions of individuals accused of human rights violations. …

116. However Dr Mahmood points out that human rights abuses continue to occur in Punjab, the police are still out of control in many areas, and human rights workers have themselves been targets of harassment and abuse. Lawyers are encountering difficulties in getting cases against individuals accused of human rights violations actually organised and heard, because of pressure from the authorities to withdraw charges. Dr Mahmood concludes that the current improvement does not represent a durable and fundamental shift in the Indian human rights climate.

117. Sikhs do not constitute a persecuted group at the present time, and rank and file members of groups that were at one time targeted e.g. the AISSF are in general terms now safe. There are exceptions such as people with a local history of abuse at the hands of the police, who may continue a personal vendetta; and militants together with their close relatives and supporters who continue to be followed as potential seeds for further rebellion.

118. Despite this general agreement that the situation in Punjab has returned to normal, acts of violence have continued …

119. The Punjab State Human Rights Commission started work in July 1997 … 170 cases have been dealt with. The Commission has intervened in a number of cases of police excesses … and the Punjab government has been forced to pay compensation …

Internal flight for Sikhs

124. The Indian Constitution guarantees Indian citizens the right to move freely throughout the territory of India, and to settle and reside in any part of the country. These rights are subject to restrictions as imposed by law in the interests of the general public. Punjabi Sikhs are able to relocate to another part of India and Sikhs outside Punjab are feeling more secure now than at any other time since the 1984 riots. Sikhs are a mobile community and as a result, there are Sikh communities all over India.

125. Some four million live in India outside Punjab … At the time of the 1981 census some 8% of Delhi’s population was Sikh. They are generally urban and prosperous and they control important trades and occupy a prominent position within the central and regional administration … Punjabi Sikhs would have no more problem enrolling their children in school or obtaining employment than any other Indian relocating to a new area.

127. … At present there are no checks of any kind on a newcomer to any part of India arriving from another part of India, even if the person is a Punjabi Sikh.

128. Sources disagree whether the Punjab police would pursue an individual they wanted to another part of India: some say it is unlikely, unless the individual had a very high profile or the Punjabi police secured the involvement of the Central Bureau of Investigation … There have been instances where the Punjabi police have acted on their own, for example where they pursued and killed, in May 1993 and June 1994, former residents of Punjab who had relocated to West Bengal and Nepal.

129. Other sources indicate that the Punjab police would be likely to pursue someone they wanted outside the state. People at risk would include militants or perceived militants and their families and close supporters. “History sheeters” i.e. those with a record of previous arrests and detentions and “habitual offenders” – those who are rounded up whenever anything untoward happens – might also be at risk. Lists of habitual offenders are apparently distributed across India via the police computer system.”

i) The primary way to deal with someone in the position asserted by Mr Drabble QC is for care and consideration to be given to that claimant’s individual case that he or she is an asylum applicant engaging the Convention in the knowledge that he or she comes from a designated country, to ensure that the very fact that he or she comes from a designated country does not inhibit the appropriate consideration being given to that person’s application.

ii) In any event this Applicant on the facts gains nothing from such consideration.

i) The reference by the Respondent to British Oxygen is obviously not enough of itself. Of course the Secretary of State is entitled to have a policy, and where, as here, that policy is published, no criticism can be made of that fact. The question obviously is whether the policy is a proper interpretation of his discretion under the Act, or whether it unnecessarily restricts it.

ii) I am of course not bound by the decision of Kay J to which the Respondent has referred, and in any event, as Mr Drabble QC points out, in terms of Clark to which I have already referred in paragraph 9 above, the less weight ought to be placed upon it because it was only given on an application for permission to appeal (albeit by a judge of considerable experience in this field and after inter partes argument). However I wholeheartedly agree both with Kay J’s conclusions and the way he expresses them. It seems to me to be an inevitable result of the legislation, and the designation of the countries and the creation of the White List, that there must be a substantial difference in the way applications from an asylum applicant emanating from designated countries must be approached. It is in my judgment an intended consequence of the legislation that the second tier appeal should not normally be available to applicants from those countries. In those circumstances I can see nothing untoward in the expression of the Respondent'’ policy in paragraph 5 of the Directorate Instructions which I have already cited above, namely “When a claim from a national of a designated country has been considered and refused there should be a very strong presumption that the claim will be certified”. It is obviously right for the Instructions to emphasise, as they do, that the decision as to whether to accept the application or reject it must be taken first, and taken irrespective of the fact that the country is designated (except insofar as a consideration of the country assessment must form part of the testing of the applicant’s evidence, which might lead to scepticism about his claim) before the question of certification arises. But I conclude it is appropriate that, once the application is refused, a very strong presumption does indeed arise.

iii) There may be special circumstances applicable to an applicant to be considered in relation to the issue of certification. However it seems to me that if there has been a prior decision, by reference to the facts of the particular hotspot, if hotspot it be, that such applicant is not at risk, then he is not at risk. The facts to be considered in relation to whether to certify will inevitably be the same facts to be considered in relation to whether there is a good claim under the Convention, and if, as here, it has been concluded that the Claimant is in any event on his own case either involved in anything at a low level or not at all (and in the case of this Claimant never a member of any political party or organisation in India) and has been disbelieved as to the account of abuse which he has given, then the outcome of the discretionary decision, absent anything else, must be almost inevitable.

iv) The use of the words “particularly complex” in paragraph 2.2 of the Instructions perhaps inadequately describes the position which is entirely clear from the rest of the document, namely that it will take some particularly special exceptional circumstances, not arising simply from the fact that the applicant comes from an area in which there are human rights problems, before any question of not certifying arises: this is the mirror image of the highlighted passage in paragraph 5.2 of the Instructions emphasising that “on no account should a case worker presume that an asylum claim should be refused merely because the applicant is from a designated country”. It appears to me that it will be a rare case, where it has been concluded that an applicant from a designated country is not at risk of persecution, when the same facts which have led to such a conclusion can of themselves be spelt out so as to constitute a reason for not certifying. Whatever such circumstances may be, I am entirely satisfied that they do not apply in this case. I conclude, by consideration of the letter of refusal, together with the evidence of Mr Walsh and the submissions of Mr Qureshi, that all appropriate matters were fully taken into account by the Secretary of State. Although the letter itself did not spell out any two stage process, I am satisfied that he considered all relevant matters, both as to Punjab and as to the Claimant personally, and that, whether in accordance with his stated policy or at all, there existed no circumstances which would require him, having refused the application for asylum on the grounds he did, to exercise a discretion not to certify. I therefore find for the Respondent on this issue.

Judgment