Scottish Court of Session Decisions

This is an appeal under section 9(1) of the Asylum & Immigration Appeals Act 1993 by the appellant against a determination by the Immigration Appeal Tribunal, dated 21 August 1997. In that determination, the Immigration Appeal Tribunal dismissed the appellant's appeal against a determination of a Special Adjudicator, dated 20 May 1997, refusing the appeal of the appellant against a decision of the respondent, dated 2 December 1996, refusing to grant asylum under paragraph 336 of HC 395 as amended and making a deportation order by virtue of section 3(5)(a) of the Immigration Act 1971. At the commencement of these proceedings in this court, the position was that, the Immigration Appeal Tribunal on 8 September 1997 having refused the appellant's application for leave to appeal against its determination, the proceedings took the form of an application for leave to appeal,

made to this court, under section 9(2) of the Act of 1993. Thereafter, on 16 December 1997, leave was granted by this court to appeal. That having been done, the court held that the appellant's application for leave was to be the equivalent of an appeal. Subsequently the respondent lodged brief Answers to the appeal.

The background to the matter is that the appellant is a citizen of Pakistan. Since around 1980, he has been a member of the Pakistan People's Party, the PPP. Latterly, prior to his leaving Pakistan, the appellant was a local official of the PPP in the area in which he lived. The appellant applied for and became the holder of a Pakistan passport, which is dated 14 September 1991, a copy of which has been produced in the bundle of documentation which is Appendix 2. He entered the United Kingdom on 12 April 1992 upon the basis of a single visit visa having a validity enduring for six months. By a letter dated 16 December 1992 from the appellant's solicitors to the respondent, the appellant requested asylum in the United Kingdom. The circumstances upon which he relied in making that request are set forth in the letter itself. In due course, the appellant completed a formal asylum application, dated 1 June 1993, in which those circumstances were set forth in detail. Thereafter the appellant was the subject of an asylum interview conducted on 4 March 1994, a record of which is to be found in the documentation before us. The general basis of the application was that the appellant had a well-founded fear of persecution in Pakistan for reasons of race, religion, nationality, membership of a particular social group or political opinion. By a letter dated September 1996, the respondent intimated to the appellant that he had concluded that the appellant did not qualify for asylum. Accordingly his application was refused for the reasons set forth in detail in that letter. By letter dated 6 December 1996 from the appellant's solicitors to the respondent, the appellant appealed to the Special Adjudicator upon the grounds which are set out in the associated documentation. Following upon that, the Special Adjudicator reached the determination, to which we have already referred, giving reasons therefor which are set out in it in Appendix 1 to the appeal. That determination makes clear that the appeal before the Special Adjudicator was conducted upon the basis of the documentation which had been produced, upon which both parties made submissions. Oral evidence was not led from the appellant or any other witness. Following the determination of the Special Adjudicator, a further appeal was taken to the Immigration Appeal Tribunal, as explained above. It should be noted that, at the outset of the appeal hearing before that Tribunal, certain new material, which had not been before the Special Adjudicator, was produced by the respondent, details of which are given on page 2 of the determination by the Tribunal.

When this matter came before us for a hearing, counsel for the appellant indicated that her general submission was that the Immigration Appeal Tribunal had misdirected itself and had acted unreasonably in failing either to determine the appeal before it de novo, or to remit the matter back to a fresh Special Adjudicator for a re-hearing. Either of those courses would have been open to it in terms of section 20 of the Immigration Act 1971 and Rule 17 of the Asylum Appeals (Procedure) Rules 1996. It was plain from the original formulation of the appellant's application for asylum and the subsequent descriptions of his position in grounds of appeal that it depended heavily upon the appellant satisfying the respondent and other fact-finding bodies that his account of the events in Pakistan affecting him was credible. Among the matters concerned were the events of 13 or 14 September 1991, when the appellant claimed that he and his wife had been the victims of politically motivated violence, the circumstances and timing of the appellant's application for the passport which was issued to him dated 14 September 1991 and the issue of a warrant for his arrest in Pakistan, dated 26 November 1991. Also of significance was the appellant's explanation for the delay which had followed the events of 13 or 14 September 1991 before the appellant applied for asylum in the United Kingdom. In these circumstances, it was of importance to see how the Special Adjudicator and the Immigration Appeal Tribunal had approached the matter of the appellant's credibility.

Considering firstly the approach of the Special Adjudicator, it was submitted that he had formed an adverse view as to credibility on the most slender basis. As appeared from page 3 of his determination, he considered that a delay of seven months in Pakistan between the alleged attack in September 1991 and departure from the country was significant. Furthermore, he had attributed importance to an alleged delay of "almost eight months" while the appellant was within the United Kingdom before he claimed asylum. The Special Adjudicator had assumed that the appellant's passport must have been applied for prior to the date of the claimed attack, although he had no material on which to base that assumption. In addition, the Special Adjudicator formed the belief that the arrest warrant was not genuine, without good reason. However, of fundamental importance to the appellant's argument was the now accepted fact that the Special Adjudicator had misunderstood the circumstances surrounding correspondence which was of significance in the case. Among the documentation produced was a letter, dated 24 August 1992 from the legal adviser of the appellant's family in Pakistan, in which it was claimed that the police were looking for the appellant in that country and that it would be unsafe for him to return there. This letter appears at pages 18 and 19 in Appendix 2. It was dealt with by the respondent in his decision letter of September 1996 in paragraph 8, at page 15 of Appendix 2. The sequel to that had been that the respondent's observations in paragraph 8 had been the subject of a response in the appellant's notice of appeal to the Special Adjudicator, which appears at pages 8 to 11 of Appendix 2. In paragraph 8 of that document it was said:

That paragraph itself reflected a misunderstanding in respect that it referred, not to the letter dealt with in paragraph 8 of the respondent's decision letter of September 1996 dated 24 August 1992 from a lawyer in Pakistan, but with the letter of the appellant's solicitors in the United Kingdom dated 16 December 1992 which constituted the appellant's application for asylum. The appellant's response had been an explanation for delay in sending that letter. This matter had been dealt with by the Special Adjudicator on page 3 of his determination. It was submitted that, in the passage concerned, the Special Adjudicator had been critical of the appellant and had, in effect, said that this particular part of his grounds of appeal was nonsense. Yet it was now agreed by the respondent that the Special Adjudicator had been labouring under a misapprehension in this regard. The fact was that a more careful reading of the documentary evidence than had been accorded to it by the Special Adjudicator would have detected the confusion. It was submitted that this mistake on the part of the Special Adjudicator had tainted his whole approach to the credibility of the appellant, which was of fundamental importance to his case.

While it was accepted that the element of delay was important in relation to the appellant's credibility, the Special Adjudicator had not made clear what particular delay he considered important. Furthermore, there was reason to believe that he had in fact misapprehended the extent of the delay involved. In particular, at page 3 of his determination he had stated that "following his arrival in the UK, he again delayed for almost eight months before claiming asylum". That was an erroneous statement, based upon the misunderstanding already mentioned. The real position had been that, having received the letter from his family's lawyer in Pakistan dated 24 August 1992, the appellant had first consulted a solicitor in Scotland concerning asylum on 22 September 1992, which date was within the period of the appellant's lawful residence in the United Kingdom, authorised by his visa. That solicitor had sent a draft letter seeking asylum to the appellant on 2 October 1992, but due to the misunderstanding correctly referred to in paragraph 8 of his grounds of appeal to the Special Adjudicator, a delay occurred until the solicitor sent a reminder to the appellant, which resulted in the submission to the respondent of the letter of 16 December 1992. Thus it could be seen from an examination of the Special Adjudicator's determination under reference to the documentation available, that that determination was seriously flawed.

Turning to the determination of the Immigration Appeal Tribunal, it was submitted that it was critical to see how it had approached the matter of the appellant's credibility and the admitted mistake made by the Special Adjudicator. In this connection it was pertinent to note the powers possessed by the Immigration Appeal Tribunal. Under section 20 of the Act of 1971 and Rule 17 of the Asylum Appeals (Procedure) Rules 1996, a number of options had been available to the Tribunal. They were empowered to affirm the determination under appeal or make any other determination which could have been made by the Special Adjudicator; in addition, they were empowered to remit the case to a Special Adjudicator for determination by him in accordance with their directions. Whatever course might have been followed, it ought to have involved a reconsideration of the whole case and in particular the issue of the appellant's credibility de novo. That had not been done. A scrupulously careful approach to the matter was required. In that connection reference was made to Bugdaycay v. The Secretary of State for the Home Department [1987] 1 AC 514 and to the observations of Lord Bridge of Harwich at page 531, where it was indicated that decisions of the kind in question had to be subjected to the "most anxious scrutiny" since the right to life was in issue. A similar view had been expressed by Sedley J. in Regina v. Immigration Appeal Tribunal ex parte Omar Mohammed Ali [1995] Imm. A.R. 12. The court had to ensure that "the appellate process has been lawfully and properly conducted". In connection with the assessment of the decision of the Immigration Appeal Tribunal, it had to be recognised that, as appeared from Borissov v. The Secretary of State for the Home Department [1996] Imm. A.R. 524, at page 535, the jurisdiction of that Tribunal was not limited to questions of law; it was within the scope of their jurisdiction for them to review, if they saw fit to do so, the Special Adjudicator's conclusions of fact. A similar view had been expressed in Assah v. The Immigration Appeal Tribunal [1994] Imm. A.R. 519.

In the present case, it was submitted that the Immigration Appeal Tribunal had not properly dealt with the consequences of the admitted error made by the Special Adjudicator; they had merely dismissed it as a matter of little importance, describing it as "peripheral". That was an unsound approach. Looking at the paragraph of the Special Adjudicator's decision in which the error was expressed, it was plain that the matter concerned had been of importance in his assessment of the credibility of the appellant. What the Immigration Appeal Tribunal should have done was to remit the case to a Special Adjudicator for reconsideration or have considered the whole factual material available themselves de novo. It was recognised that the appeal to this court under section 9(1) of the Act of 1993 was an appeal "on any question of law material to (the) determination". Here the question of law involved was as to the correct approach to be adopted by an Immigration Appeal Tribunal when determining an appeal from a Special Adjudicator who had made a demonstrable error of fact.

Counsel for the appellant proceeded next to make a number of further criticisms of the determination of the Tribunal. In relation to the time of application for the appellant's passport, it was submitted that the Tribunal had been incorrect in saying what it did on page 8 of its determination in regard to this matter. The fact was that, in the appeal documents provided by the appellant, it had been stated that it was quite common in Pakistan for a passport to be issued immediately. The Tribunal had no reason to reject that material.

Support for the view that the Tribunal ought to have looked at the whole matter de novo could be obtained from the observations of Woolf J., as he then was, in Regina v. Immigration Appeal Tribunal ex parte Zaman [1982] Imm. A.R. 61, at page 62. The right of appeal to the Tribunal was the equivalent to that which was enjoyed where there was a right to a re-hearing; the Tribunal had to consider the matter de novo on the material before it and not restrict itself to the form of review which was appropriate in the consideration of an application for judicial review. That was particularly appropriate where, as here, fresh evidence had been admitted by the Tribunal as it was entitled to do under Rule 27 of the Rules of 1996. In the whole circumstances the appeal ought to be allowed and the case should be remitted back to the Tribunal for them to consider the matter de novo under section 20 of the Act of 1971.

Counsel for the respondent submitted that the Immigration Appeal Tribunal had correctly performed its task under the statute and had correctly considered the material before it; there was no error of law in its determination. On the assumption that that submission was wrong, it was accepted that the appropriate disposal would be for the case to be remitted back to the Tribunal with an instruction that it should recommence its task, ignoring the determination of the Special Adjudicator. In this connection, it was accepted that the Immigration Appeal Tribunal could act in the same manner as a Tribunal of first instance.

The question had been raised of the punctum temporis to which the Tribunal should have regard in reaching its determination. In that connection reference was made to Sandralingham v. The Secretary of State for the Home Department [1996] Imm AR 97, which indicated that appellate authorities were not restricted to a consideration of the facts in existence at the date of the decision under appeal. The relevant point in time was the moment at which a case came before the body charged with fact-finding. An examination of the statutory framework applicable indicated that the Immigration Appeal Tribunal possessed a mixed function. It was open to it to accept facts found by the Special Adjudicator; however, it had a discretion to receive new evidence which had not been before that Adjudicator. Thus it was accepted that its function was not restricted simply to reviewing the determination of the Special Adjudicator.

Counsel for the respondent went on to consider the determination of the Special Adjudicator. It was plain that delay occurring before the application for asylum had been an issue from the commencement of the proceedings. At page 97 of the determination, delay was seen correctly as an element which could undermine the appellant's case of a well-founded fear of persecution for a Convention reason. The Special Adjudicator's conclusion had been that the delay occurring following upon the alleged attack on 13 or 14 September 1991 did not suggest that the appellant was in fear of any kind. That conclusion had been reinforced by the fact that the appellant had not returned to Pakistan when the PPP regained power in 1993. While it was accepted that the appellant's entry to the United Kingdom on a visitor's visa was not automatically destructive of his credibility as regards the important elements of his case, Rule 341 of the Immigration Rules (H.C. 395) made it quite clear that the respondent was entitled to have regard to the delay occurring after the appellant's arrival in the United Kingdom. Of course, in terms of that Rule, a reasonable explanation from the appellant could destroy the effect which delay would otherwise have. The Rules, of which Rule 341 was one, had been made under section 3(2) of the Act of 1971 and had been validated by having been laid before Parliament as required. It was plain from these Rules and from authority that delay was a relevant consideration in assessing the credibility of a claim for asylum, although it was not conclusive. In this connection reference was made to Bila v. Secretary of State for the Home Department [1994] Imm. A.R. 130, at pages 135 to 136.

In connection with the issue of delay, the Special Adjudicator had found against the appellant in certain respects with complete justification. In paragraph 10 of the appellant's grounds of appeal to the Special Adjudicator, at page 8 of Appendix 2, it had been indicated that the appellant was attempting to obtain statements from certain persons, Mohsan and Shakoor in support of his contention that he had attempted to have charges against him dropped and had remained in Pakistan for that purpose. Letters had indeed been obtained by the appellant from these persons, dated 12 and 15 February 1997, which were at pages 71 and 72 of Appendix 2, but they did not live up to the appellant's expectations; they contained no explanations for the delay in Pakistan. Furthermore, the letter from the appellant's lawyer in Pakistan, dated 24 August 1992, at page 19 of Appendix 2 gave no explanation of the appellant's delay in leaving Pakistan.

It was accepted by the respondent that the Special Adjudicator had made the error previously referred to concerning the correspondence. However, it was not accepted that that error had tainted the Special Adjudicator's whole decision.

Counsel for the respondent next proceeded to consider the terms of the Immigration Appeal Tribunal's determination. It was plain from that decision that the Tribunal had received further documentary evidence from the respondent, as they were entitled to do, and had properly assessed the significance of that material which was unfavourable to the appellant and tended to undermine the credibility of his claim. Among the points which emerged from that new material was the one concerning a duplicate identity card, referred to at the top of page 6 of the determination. That was a powerful point against the appellant. It was clear from page 8 of the Tribunal's determination that they had fully appreciated the nature of the mistake which the Special Adjudicator had made. It was submitted that the Tribunal had correctly dealt with that matter.

In relation to the matter of delay, it was accepted that the Special Adjudicator appeared to have misapprehended the extent of the delay discernible. In particular, in a passage in his determination at page 96 of Appendix 2 he referred to a delay of "almost eight months before claiming asylum". This was a reference to the period of time between the arrival of the appellant in the United Kingdom on 4 April 1992 and the making of a formal request for asylum on 16 December 1992. It was accepted that the appellant had in fact approached his solicitor in connection with the making of a claim for asylum on 22 September 1992, a fact of which the Special Adjudicator was in ignorance. Furthermore, it was a consequence of that situation that the Special Adjudicator was not aware of the fact that the appellant had taken steps to seek asylum while the six month visa which he held was still in force. Despite these various considerations, it was submitted that the Immigration Appeal Tribunal had not misdirected themselves, but had proceeded correctly in relation to the circumstances presented to them, in these circumstances the appeal should be refused.

This is, of course, an appeal under section 9(1) of the Act of 1993, which makes provision for an appeal against a determination of the Immigration Appeal Tribunal "on any question of law material to that determination". Accordingly, the first issue which we must address is whether such a question of law arises here. We consider that it does. The question of law which we see as involved in this case is as to what is the correct approach to be adopted by the Immigration Appeal Tribunal when determining an appeal from a Special Adjudicator, in whose determination a demonstrable mistake has been made by the Adjudicator in the comprehension of the evidence before him.

In approaching the question which we consider requires to be answered, the statutory position of the Immigration Appeal Tribunal is important. In our view, it is clear that the function of that Tribunal on an appeal from a Special Adjudicator is not limited in the same way as is that of a court of review in an appeal from a fact-finding court or body. Section 20(1) of the Act of 1971 provides:

Rule 17(2) of the Asylum Appeals (Procedure) Rules 1996 provides:

It can thus be seen that three options are available to the Tribunal on an appeal such as this (1) affirmation of the determination of the Special Adjudicator; (2) the making of any other determination which could have been made by the Special Adjudicator; and (3) a remit of the case to a Special Adjudicator for a determination by him in accordance with directions given by the Tribunal.

We recognise nevertheless that certain limitations exist on the wide powers conferred by these statutory provisions on the Immigration Appeal Tribunal. In Borissov v. The Secretary of State for the Home Department, it was said by Hirst L.J. at page 535:

Similar views were expressed in Assah v. The Immigration Appeal Tribunal. It is clear however that issues of that kind do not arise in this case, where no oral evidence from witnesses was heard by the Special Adjudicator.

What we consider to be an authoritative exposition of the powers of the Immigration Appeal Tribunal was provided in Regina v. Immigration Appeal Tribunal ex parte Zaman and Another by Woolf J., as he then was. At pages 62 and 63 of that decision, in a passage which it is appropriate to quote, he said:

We respectfully agree with these observations. In our view, it is particularly important that this approach should be followed, if for no other reason than that the structure of the appeals system involves the possibility that new evidence, not before the Special Adjudicator, may be received by the Immigration Appeal Tribunal. That is the consequence of the provisions of Rule 27(2) and (3) of the Asylum Appeal (Procedure) Rules 1996. Furthermore, that approach is entirely consistent with the views expressed by Simon Brown L.J. in Sandralingham v. The Secretary of State for the Home Department, at pages 111 to 113 of the report. In that passage he reached the conclusion that, in asylum cases, the appellate structure as applied by the 1993 Act was to be regarded rather as an extension of the decision-making process, as opposed to simply a process for enabling an original decision to be reviewed. It is a feature of this approach that the punctum temporis at which a factual situation is to be considered is the point at which the matter comes before a fact-finding tribunal. In this context, that means the time of the hearing before the Immigration Appeal Tribunal.

Following this approach, if the Immigration Appeal Tribunal were faced with a situation in which, in an appeal before them, it was shown that a Special Adjudicator had made a mistake in his comprehension of the evidence before him and if the Tribunal were satisfied that the mistake was in relation to a matter which was de minimis, in our view, they could quite properly simply affirm his determination, if that was otherwise appropriate. However, in a situation where such a mistake could not be so viewed, we consider that the Immigration Appeal Tribunal would be bound to follow the approach explained in Zaman. That would also inevitably be the appropriate approach where new evidence, not before the Special Adjudicator, had been received.

In these circumstances, the question arises whether the mistake which was admittedly made by the Special Adjudicator here can rightly be seen as de minimis. In our opinion, it cannot. We consider that it is clear from the Special Adjudicator's determination that the credibility of the appellant's account of the grounds of his claim for asylum was the fundamental issue before him. The matter of delay was simply one among several elements relevant to that issue. Looking at how the Special Adjudicator considered the issue of the credibility of the appellant's claim and how he came to regard that claim as incredible, it is apparent that he considered several factors. Among these was the issue of delay, both in Pakistan and in the United Kingdom, before the appellant made his claim for asylum. In relation to that matter, it is apparent from what is said in the Special Adjudicator's determination at page 96 of Appendix 2 that he considered the delay involved in the United Kingdom before the making of the claim as amounting to eight months. It became apparent in the discussion before us that that assessment was wrong. It appears that the Special Adjudicator was ignorant of the fact that, as early as 22 September 1992, the appellant approached his solicitor in the United Kingdom with a view to making a claim for asylum. Thus the figure referred to by the Special Adjudicator ought to be five rather than eight months. The Special Adjudicator, of course, also considered the issue of the date of application for the appellant's passport; he assumed upon a basis which is obscure that application for the passport must have been made some time before its date of 14 September 1991. In relation to the important incident upon which the appellant founds of alleged violence against him and his wife on 13 or 14 September 1991, the Special Adjudicator has rejected the appellant's version of events, giving no particular reason for that posture. In addition, it is plain that he has rejected the document which was said to be a warrant for arrest of the appellant as not being genuine, although specific reasons are not given for that conclusion. Having regard to these features of the Special Adjudicator's determination, it appears to us that the consequences of his misunderstanding of the facts in relation to the correspondence, manifested in the passage in his determination at the bottom of page 96 in Appendix 2 may be of very considerable importance. In this passage the Special Adjudicator says this:

It appears to us that, in this passage, for reasons which are demonstrably erroneous, the Special Adjudicator reached the conclusion that an important part of the appellant's position in support of his claim made no sense. Against a background of apparently slender justification for rejection of the appellant's credibility in relation to the matters to which we have alluded, we consider that it is impossible to reach the conclusion that the mistake made by the Special Adjudicator was de minimis.

Having reached the foregoing conclusion, it now becomes necessary to consider how the Immigration Appeal Tribunal has approached their task. Looking at their Decision and Reasons at the end of their Determination, it is clear to us that they did not follow the approach which we have desiderated and which was explained in Zaman. In fairness to the Tribunal, we observe that the submissions which were made to them were not formulated upon the premise that that approach should have been adopted. It appears that the Tribunal have followed the approach which might be adopted by a court of review of the decision of a fact-finder, considering whether the Special Adjudicator had come to correct conclusions on a series of detailed points, rather than themselves reconsidering the whole matter de novo on the evidence then available and in the light of a correct understanding of that evidence. It is apparent that such an approach was taken in relation to the passport application issue, where the Tribunal considered the adequacy of the Special Adjudicator's reasoning in relation to that particular matter. The same approach was adopted in relation to what are described as Grounds 3 and 4. It is plain that, in relation to those matters the Tribunal were addressing the question of the adequacy of the Special Adjudicator's reasoning on those particular points.

Turning to the feature of the case on which the Special Adjudicator misapprehended or misunderstood the evidence relating to correspondence, the Immigration Appeal Tribunal say:

Once again, it is obvious that the focus of the Tribunal's attention was upon the reasoning of the Special Adjudicator. Taken on its own terms, we find the conclusion contained in this passage without discernible foundation. Furthermore, the "core issue", in our opinion, was not one of delay; it was one of the credibility of the appellant's claim, in all the circumstances; delay was relevant only in relation to that fundamental issue. We are unable to understand how the Immigration Appeal Tribunal could have regarded that part of the Special Adjudicator's reasoning as "peripheral", in view of the apparently slender basis for the Special Adjudicator's conclusions in relation to the other points in the case which we have mentioned.

In these circumstances, in our view, the Immigration Appeal Tribunal have misdirected themselves in law in failing to follow the correct approach, which we have explained. Having concluded, as we think was inevitable, that the Special Adjudicator's determination was flawed, and, in any event, having received fresh evidence not put before the Special Adjudicator, we consider that the Immigration Appeal Tribunal should simply have discarded the reasoning and determination of the Special Adjudicator and have considered the primary issue of the credibility of the appellant's claim for themselves de novo, in the light of all the evidence before them and of a correct understanding of it. In that connection, in the particular circumstances of this case, in which no oral evidence has been led from witnesses, the restraint recognised in the passage which we have quoted from Borissov v. The Secretary of State for the Home Department would have had no part to play.

In all these circumstances, we shall allow the appeal and remit the case to an Immigration Appeal Tribunal to undertake that task in the light of the approach which we have indicated ought to be followed. We consider that it would be appropriate for that Tribunal to be a fresh one, differently constituted from that whose decision has been the subject of this appeal.