Scottish Court of Session Decisions

This application for judicial review came before me for a First Hearing on 8 and 9 October 1998. It is brought by a Pakistani family living in Glasgow. The background circumstances are not in dispute and are apparent from the documentation lodged in process, all of which was agreed to be genuine and accurate. The background can be summarised as follows.

The first and second petitioners are husband and wife. The remaining petitioners are their children. On 21 October 1990 the first petitioner arrived in the United Kingdom with entry clearance as a visitor. He was granted leave to enter for six months. On 3 January 1991 he applied for asylum. The second, third and fourth petitioners entered the United Kingdom on 20 February 1994 and subsequently applied for leave to remain as the dependants of the first petitioner. The fifth and sixth petitioners were born subsequently in the United Kingdom.

The first petitioner's application for asylum was refused by the Secretary of State in a letter dated 11 June 1996. On the same date the first petitioner was notified that leave to remain in the United Kingdom had been refused. The second, third and fourth petitioners were also notified that they had been refused leave to remain in the United Kingdom as dependants of the first petitioner. Appeals against these decisions were refused by the Special Adjudicator in a determination dated 3 December 1996. An application for leave to appeal against that determination was refused by the Immigration Appeal Tribunal in a determination dated 30 December 1996.

The present application seeks (a) declarator that the Special Adjudicator acted unreasonably and irrationally et separatim erred in fact and law in refusing the petitioners' appeals; (b) declarator that the Immigration Appeal Tribunal acted unreasonably and irrationally et separatim erred in fact and law in refusing the petitioners leave to appeal; and (c) reduction of the determinations of the Special Adjudicator and the Immigration Appeal Tribunal.

The grounds of challenge focus upon the first petitioner's application for asylum. The history of that application is not in dispute. The first petitioner initially applied for asylum on 3 January 1991. Thereafter he completed an asylum application form, bearing the Home Office reference number B489806. In the form he stated that his family was affiliated with the Pakistan People's Party (PPP) and that he personally had been an active member of the PPP for many years. During the 1990 General Election campaign he had been active in Wazirabad as propaganda secretary. On 20 October 1990 violent clashes had taken place, during a procession arranged by Nawaz Sharif, between members of the PPP and members of the rival party, the Muslim League (of which Mr Sharif was the leader). Many members of both parties were injured. The first petitioner took part in the demonstration and received a number of blows. On 21 October 1990 the first petitioner came to the United Kingdom, and in the General Election the following day the Muslim League were successful and Mr Sharif became the Prime Minister of Pakistan. A few weeks later he ordered the arrest of the PPP supporters who had been involved in the clashes on 20 October. The first petitioner then learned from members of his family in Pakistan that the Punjab police had involved him in a number of "false cases" and intended to arrest him. The statement in the form continued:

The first petitioner was interviewed in connection with his application on 24 August 1994. In the course of the interview he confirmed the accuracy of the application form (Answer 6) and gave a similar account. He explained that he had come to the United Kingdom for a visit (Answers 26 and 29) and had subsequently decided to apply for asylum because he was told that the Muslim League had brought a case against him and accused him of being part of a demonstration (Answer 31). He explained that the Muslim League had organised a big rally on 20 October 1990. He had had the idea of establishing a very large rally of the PPP "and to go out and be in opposition to the Muslim League rally to stop them" (Answer 75). He organised a large opposition rally, which was initially dispersed by the police:

The two people who were shot were on the Muslim League side. When asked why he was claiming political asylum, he responded:

He explained that members of the Muslim League had accused him of being the person who shot the two people who were injured during the demonstration and produced what purported to be a photocopy of a warrant for his arrest (Answers 111-117). He also produced other documentation (Answer 134). This included a copy of a Pakistani police report, known as a "First Information Report" (FIR), dated 20 October 1990. He mentioned that he had been arrested and beaten by the police on a number of occasions in 1986 and 1987 (Answers 89-108). He had not suffered any other harassment (Answer 109), but his family had suffered some harassment from the Muslim League since his departure (Answer 127). He stated that he did not wish to return to Pakistan because he would be arrested in respect of the cases outstanding against him. (Answer 129).

In his decision letter rejecting the application for asylum, the Secretary of State founded particularly on two matters. The first was a charge in the regime in power in Pakistan:

The second was that inquiries had shown that the purported warrant and FIR were not genuine:

Before the Special Adjudicator, it was argued that the Secretary of State's assessment of the first petitioner's credibility, which had been based upon a field trip report by an Entry Clearance Officer (ECO), was flawed by reason of the manifest unreliability of that report. The submission of the first petitioner's representative was recorded by the Special Adjudicator as follows:

The Special Adjudicator dealt with that submission as follows:

Before me, counsel for the petitioners argued, as his principal ground of

challenge, that the Special Adjudicator had acted unreasonably in treating the contents of the field trip report as reliable, given the mistake as to the date. The Special Adjudicator had misdirected himself, it was argued, in applying a test of whether there was a reasonable likelihood or a serious possibility that the substance of the report was inaccurate. At the very least, it was said, the Special Adjudicator should have adjourned the hearing to enable the Home Office to make further inquiries.

In my opinion there is no substance in this ground of challenge. Counsel for the petitioners accepted that the field trip report refers to the first petitioner and his application for asylum (as is apparent from the names, the references and the subject matter of the inquiries described). As he accepted, the date stated (18 April 1994) is plainly a mistake. The issue for me is whether, notwithstanding the mistake as to the date, any reasonable Special Adjudicator could have treated the substance of the report as reliable. It appears to me to be impossible to say that any reasonable Special Adjudicator was bound to reject the report, or to require further inquiries to be made before accepting it. Human fallibility being what it is, a typing mistake is unsurprising, and it would be extravagant to say that such a mistake must necessarily be regarded as destroying the reliability of a report as a whole. In the present case, what is important is whether the search of the records of the Wazirabad City Police Station was correctly carried out. The Special Adjudicator noted that the field trip was carried out by two responsible public officials of the Home Office, and that the dates (other than the date of the search itself) and other information all correlated with the warrant and FIR produced by the first petitioner. He applied an appropriate test in asking himself whether there was any serious possibility or reasonable likelihood that the search had not been carried out as described in the report: any fanciful or theoretical possibility would be too remote to be relevant. In my opinion he was entitled to conclude that there was no such serious possibility. The assessment of evidence is a matter for the Special Adjudicator, unless he proceeds in a manner which is unreasonable or erroneous in some point of law. I can see no proper basis for interfering with his assessment in the present case.

The second ground of challenge in the petition is stated in a single sentence:

Counsel explained that this ground of challenge concerned the fact that the Special Adjudicator had accepted that the first petitioner was a member of the PPP, whereas he had refused to accept other claims made by the first petitioner. It was submitted that the Special Adjudicator had failed to give adequate reasons (as required by rule 2(3) of the Asylum Appeals (Procedure) Rules 1996, S.I.No.2070) for accepting the first petitioner's account on one point while rejecting it on other matters. I am unable to accept this submission. The Special Adjudicator explained in his determination that he accepted the first petitioner's claim to be a member of the PPP because the first petitioner "has consistently claimed to have been a member of PPP and he has produced documentary evidence to support this claim". This was in contrast to the position in respect of the first petitioner's claim to be in fear of persecution: in that regard, the Special Adjudicator noted that, according to the field report, the critical documentation was not genuine; and the first petitioner's complaints of maltreatment in 1986 and 1987 had been mentioned for the first time at interview and had been omitted from the application form completed in 1991. This appears to me to explain adequately why he was prepared to accept the first petitioner's account on the matter of party membership but not on other matters.

Counsel finally sought to argue a third ground of challenge which was not foreshadowed in the petition. As counsel for the respondent took no objection, I allowed this additional ground to be argued. It was to the effect that the Special Adjudicator had misdirected himself, in the final paragraph of his determination, in dealing with a submission made on behalf of the petitioners. This submission concerned certain documentary evidence lodged on behalf of the respondent, namely a Home Office Country Assessment on Pakistan and three newspaper cuttings dated 6 November 1996 from the Financial Times, the Guardian and the Daily Telegraph. Before the Special Adjudicator, the Home Office Presenting Officer referred to the press reports concerning the recent dismissal of the PPP Government of Pakistan by the President. He submitted that the press report indicated that there had been a bloodless transition made with relative ease, and that elections were to be held in 1997 in which the PPP would be allowed to participate. Mr Lynch, the solicitor then representing the petitioners, also referred to the documents. His submission was recorded as follows:

The Special Adjudicator dealt with that submission as follows:

Before me, it was argued that the Special Adjudicator had erred in law in rejecting the submission that "it was enough if persecution was taking place and the government could not stop it". He had, it was said, fallen into error in following the approach of the IAT in the Henao-Balanta case (unreported, January 1996: Appeal No. HX172661/95(12977)), which mistakenly restricted protection to cases where the government was the agent of persecution. This approach was said to be inconsistent with paragraph 65 of the Handbook on Procedures and Criteria for Determining Refugee Status issued by the UNHCR, which was applied by Taylor J in R v Secretary of State for the Home Department ex parte Jeyakumaran [1994] Imm.A.R.45.

Paragraph 65 is in the following terms:

In my opinion this ground of challenge cannot succeed, for a number of reasons. In the first place, in order to qualify for asylum under the Immigration Rules (HC 251, 1990), the first petitioner must have the status of a refugee under Article 1A(2) of the Geneva Convention relating to the Status of Refugees (Geneva, 28 July 1951; Cmmd.9171) as amended by the 1967 Protocol (New York, 31 January 1967; Cmmd 3906). The first matter to be established under the article is that the claimant is outside the country of his nationality owing to a well-founded fear of persecution. He must have a current and well-founded fear: Adan v Secretary of State for the Home Department [1998] 2 All.E.R.453. In the present case, however, the Special Adjudicator found as a fact that the first petitioner had no such fear:

Standing that finding, the dismissal of the first petitioner's appeal was inevitable. Even if the Special Adjudicator had erred in the way in which he thereafter dealt with the submission based on the Pakistan government's alleged inability to protect the population from acts of violence, any such error could not have materially affected his determination.

I am not in any event persuaded that the Special Adjudicator erred in rejecting the submission. As I have said, refugee status depends on the individual claimant having a genuine fear of persecution. The Special Adjudicator correctly directed himself on this matter at page 4 of his determination:

The Special Adjudicator was, in my opinion, correct to reject a submission which was not based on the claimant's possessing such a fear but solely on evidence of a risk to the population in general. Although it was said that the case of Henao-Balanta, to which the Special Adjudicator referred, was inconsistent with Jeyakumaran and with paragraph 65 of the UNHCR Handbook, there does not appear to me to be any inconsistency of approach. On the contrary, in Henao-Balanta the Immigration Appeal Tribunal were concerned specifically with the application of paragraph 65, following the approach adopted in Jeyakumaran. It is true that the IAT identified the issue arising under paragraph 65 as being whether or not the agents of persecution could be said to be the government. That formulation is apt to be misunderstood: paragraph 65 is not concerned solely with cases in which the government are directly responsible for persecution (which the phrase "agents of persecution" might be understood as suggesting) but also with cases where offensive acts committed by the local populace are knowingly tolerated by the authorities or where the authorities refuse or prove unable to offer effective protection. On reading the IAT's determination it is however plain that they were aware of the terms of paragraph 65 and were using the phrase "agents of persecution" (which is the heading given to paragraph 65 in the Handbook) as a shorthand expression to cover all the circumstances in which a government's action or inaction is such that persecution can be said to exist.

Finally, it is in any event apparent that none of the documentary material to which reference was made before the Special Adjudicator contained any evidence of a risk to the safety of members of the PPP such as the first petitioner. Counsel for the petitioners accepted that the various press cuttings contained no evidence of persecution of PPP members and were not directly relevant to the first petitioner's situation. It was similarly accepted that none of the incidents of violence mentioned in the Home Office Country Assessment concerned members of the PPP in the relevant area of Pakistan or were directly relevant to the first petitioner's situation. It was said that all this material bore on the generality of the situation in Pakistan, but in my opinion that is not the relevant focus of inquiry.

For all these reasons I reject the challenge to the Special Adjudicator's determination. No separate point was taken in respect of the determination of the Immigration Appeal Tribunal. The petition accordingly falls to be refused.

Act: Bell

Lawford Kidd

Alt: Stacey

R Brodie, Solicitor to Secretary

of State for the Home Department