Scottish Court of Session Decisions

The appellant has appealed to this court against the determination by the Immigration Appeal Tribunal dated 24 June 1997 in which they refused his appeal against the determination of a special adjudicator dated 14 March 1997. His appeal relied on section 8(4) of the Asylum and Immigration Appeals Act 1993 which provides for a right to appeal against a direction for the removal of a person from the United Kingdom on the ground that it would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees and the Protocol thereto.

The adjudicator made the following findings of fact. The appellant was a supporter, and from 1990 a member, of the Sikh Students Federation in the Punjab.

He was involved in attending demonstrations and meetings organised by the Federation. In January 1989 he was beaten by the police when they broke up such a demonstration. On 13 August 1991 he was arrested by the police, detained and mistreated in detention. After his release he required medical treatment as a result of internal injuries and deprivation of food. After this incident he was arrested again but released after two or three hours questioning. In January or February 1992 he was arrested a third time and again detained and mistreated. After this arrest his family and lawyer decided that it was no longer safe for him to remain in Punjab and he went to stay with relatives in Uttar Pradesh. He remained there for about one and a half months before his father advised him to leave the country. He left India on 10 April 1992 and spent two years in Germany before entering the U.K. in April 1994 clandestinely.

The basis for the finding that his father advised him to leave the country appears to have been the evidence which the appellant gave to the adjudicator that while he was staying at his aunt's house in Uttar Pradesh his father came to visit him and advised him that the police were looking for him again and had threatened to kill him. His father therefore said he should leave the country. The appellant said he was frightened for his life.

The adjudicator stated that he was satisfied that the appellant had a well-founded fear of persecution for a Convention reason were he to return to the Punjab. However, the persecution feared by him was "rooted" in the Punjab. This raised the question as to whether it would not have been reasonable to expect him to have sought refuge in another part of India, in accordance with para. 91 of the U.N.H.C.R. handbook on refugee status. The adjudicator stated in his decision:

Having considered a number of factors he stated that he was not satisfied that there was a reasonable likelihood of the appellant being persecuted under the Convention were he to return to another Indian state. On that issue the appeal failed.

Before the Tribunal the point at issue was limited to the one on which the appellant had failed before the adjudicator, namely what is commonly referred to as the internal flight alternative. This is expressed most widely in Rule 343 of the Immigration Rules (HC 395) of 23 May 1994, which is as follows:

Before the Tribunal the appellant produced and relied on a statement by Dr. Jasdev Singh Rai of Hounslow, Middlesex who is the director of the Sikh Human Rights Group. The respondent relied on, first, the Response to Information Request dated 17 February 1997 from the Documentation, Information and Research Branch of the Immigration and Refugee Board in Ottawa, Canada and, secondly, the India Country Report on Human Rights Practices for 1996, released by the Bureau of Democracy, Human Rights and Labor of the US Department of State, dated 30 January 1997. In their decision the Tribunal, after referring to this evidence, stated that they agreed that the option of internal flight was in fact open to the appellant, given the lack of any pursuit against him while he actually had exercised that option on going to Uttar Pradesh, where he remained for one and a half months before leaving India. They stated that they were further fortified in this decision by the fact that the appellant was able to leave India, subject to careful scrutiny on his departure at the airport, on his own passport, albeit with some alteration of his appearance. They added:

We deal first with an argument, presented by Mr. Bovey on behalf of the appellant, that the Tribunal adopted an incorrect approach to the exercise of their jurisdiction. He pointed out correctly that, in terms of section 20(1) of the Immigration Act 1971, which applied to the present type of case by virtue of para. 4(2)(c) of the second schedule to the Asylum and Immigration Appeals Act 1993, any party who was dissatisfied with the determination of an adjudicator might appeal to the Tribunal, and the Tribunal might "affirm the determination or make any other determination which could have been made by the adjudicator". It was clearly recognised that this meant that they had a role which involved fact finding, and were not limited to acting as if they were a court exercising the power of judicial review. However, it could be seen from their decision that they had taken the view that the law on the matter of internal flight was clearly stated in the decision in El-Tanoukhi [1993] Imm. A.R. 71, including the following passage in the opinion of Lloyd L.J. referring to para. 91 of the U.N.H.C.R. handbook:

Mr. Bovey submitted that the Tribunal appeared to have fallen into the trap of restricting their jurisdiction to one which resembled judicial review. We are not persuaded by this argument. While it is true that this passage referred to the view which the Secretary of State was entitled to take, we do not understand the Tribunal as restricting themselves to considering only what lay outside the discretion of the Secretary of State. They appear to have considered for themselves whether the appellant did or did not fall foul of the rule relating to the internal flight alternative.

In approaching that question Mr. Bovey correctly submitted that the assessment of such an alternative was an integral part of the assessment of whether an applicant is entitled to asylum. In accordance with the approach set out in R. v. Home Secretary ex parte Sivakumaran [1988] 1 A.C. 958 this required the applicant to demonstrate a reasonable degree of likelihood that he would be persecuted for one of the reasons referred to in Article 1A(2) of the Convention and Protocol relating to the Status of Refugees, and hence had a "well-founded fear" of persecution within the meaning of that provision.

The principal submission made by Mr. Bovey on behalf of the appellant was that the Tribunal, who were under a duty to give reasons for their decision in terms of Rule 19 of the Asylum Appeals (Procedure) Rules 1996, had failed to give adequate reasons for their decision. He referred to the well-known statement by the Lord President (Emslie) in Wordie Property Co. Ltd. v. Secretary of State for Scotland 1984 S.L.T. 345 at page 348:

In Zia v. Home Secretary 1994 S.L.T. 288 Lord Prosser stated that it was not enough that an adjudicator might in theory have had comprehensible reasons; the reasons must be sought in the stated reasons and nowhere else.

Mr. Bovey referred us to the statement of Dr. Rai, from which the Tribunal had quoted two passages. In the first, which summarised the position in regard to the safety of a Sikh in another State within India, he stated:

In their Decision and Reasons the Tribunal noted that Dr. Rai had been accepted as a credible witness in the decision of another Tribunal in the case of Charanjit Singh. They emphasised that he had given oral evidence in that case. They noted that in the later case of Parmar the Tribunal had concluded that the relatively low-level involvement of the appellant would not give rise to any significant level of risk of persecution in any part of India other than the Punjab. They went on to quote a further passage from the statement of Dr. Rai, in which he said that it was extremely unlikely that a State would be able to act to save a person from central government interest. While the police force of one State could not in theory enter and arrest in another State in India without the permission of the police force in that state, in practice this could be done by formal or informal means. If due courtesies had been shown and favours returned by the Punjab police, the individual was as much in danger in any southern Indian State as in the Punjab. The Tribunal observed with reference to the latter passage:

Mr. Bovey drew our attention to the fact that the respondent's representative before the Tribunal had criticised the reliability of Dr. Rai's statement on the ground that he had not recently been in India and that he was tendentious. Mr. Bovey pointed out that Dr. Rai had been prevented from re-entering India, and submitted that there was no specific reason for thinking that he was tendentious. As regards the views of the Tribunal they gave no reason for placing emphasis on the fact that he had given oral evidence in the earlier case. It was not adequate for the Tribunal merely to state that what he said might well be a valid commentary in regard to someone who was a well-known activist involved at some significant level. It appeared that the Tribunal rejected him on what they regarded as the essentials but, where a number of pieces of evidence could not be reconciled one with another, it was not good enough merely for the Tribunal to say that one was preferred as against another. The assessment of reports on the state of human rights was part of a fact-finding exercise (R. v. Immigration Appeal Tribunal ex parte Balendran [1998] I.N.L.R. 158 per Jowitt J. at page 161).

The Tribunal went on to say that they accepted the Canadian report as representing the most accurate degree of risk of persecution to which the appellant might be subject outwith the Punjab and in other States of India. They stated that they agreed, apparently with the adjudicator, that the appellant did not have any involvement with any Sikh Separatist movement of such a high level, as to present to him any significant risk of pursuit and mistreatment in other parts of India. They stated that they considered that

Mr. Bovey submitted that, in the absence of adequate reasons, it appeared that the Tribunal had been influenced by an erroneous approach which had been submitted to them by the presenting officer on behalf of the respondent. He had quoted the Canadian report as containing a "conclusion" expressed in the views of Bob Brack, who was referred to as one of the "authors" of that report. He was deputy programme manager of immigration at the Canadian High Commission in New Delhi. However, it was plain that the report did not contain any "conclusion". It was merely a narrative of the divergent views of four people from different backgrounds who had been interviewed in connection with the subject-matter of the report. This point had nowhere been recognised by the Tribunal. Further, the only passage from the report which was quoted as being part of the submission of the presenting officer related, not to the question of internal flight, but to the subject of "groups at risk", which was concerned with an entirely different issue. In the present case it was not in dispute that in the Punjab the appellant had a well-founded fear of persecution. The risk to the appellant and his resultant fear did not depend upon his membership of a particular group but on his own personal history and circumstances. The Tribunal gave no indication of rejecting the use which the presenting officer had made of the Canadian report. The Tribunal appeared to have accepted his submission as being to the effect that a conclusion had been reached in the report that only those who had an involvement in a Sikh Separatist movement at a higher level than the appellant could not safely take internal flight. However, this was not what the report said. The Tribunal neither stated which of the views expressed in the report they accepted nor gave any reason for such acceptance. None of the views expressed in the report related to the profile of the individual. The views of Bob Brack, as quoted in the submission by the presenting officer, were that

This view was inconsistent with the findings which had been made by the adjudicator and were expressly accepted by the Tribunal.

Mr. Bovey also submitted that the Tribunal had failed to give adequate or, at any rate comprehensible, reasons for reaching their view that the two reports contained the best information on the prospects of internal flight, and bore out the conclusion that there was no significant risk of pursuit and mistreatment in other parts of India than in the Punjab.

Mr. Bovey submitted that, since differing views were expressed by the contributors to the Canadian report, it was not possible to determine which view was being endorsed. Certain parts of the report were consistent with the statement of Dr. Rai. For example, in the part of the report which did deal with the internal flight alternative, Ravi Nair, the executive director of the South Asia Human Rights Documentation Centre in New Delhi, stated that a Sikh who was on a police list or feared the State in some way would not be able to re-locate undetected, since police intelligence had become quite effective. He remarked that in the past the Punjab police commonly travelled outside Punjab and extra-judicially executed militant suspects. Counsel submitted that in the present case the Tribunal could hardly have held that the appellant was a Sikh who had no specific ground for fearing persecution by the State. They had failed to consider, in the light of the evidence before them, whether he was on a police list. In any event the Tribunal had failed to define at what level of involvement in a Sikh Separatist movement they considered that a person might not be able to flee internally within India. Quite apart from the question of whether another part of India represented a safe haven for the appellant, the Tribunal did not appear to have considered the question of whether it was reasonable to expect the appellant to take internal flight.

For the respondent Mrs. Stacey submitted that it was for the Tribunal to determine whether and to what extent the two reports and the statement by Dr. Rai dealt satisfactorily with the question of the internal flight alternative. She concentrated on the question as to whether the appellant, on whom the onus lay, had shown an objective basis for a fear of persecution in an Indian State other than the Punjab. The adjudicator had accepted that the appellant had a well-founded fear of persecution were he to return to that State, but he had made no finding in fact that the police were looking for him and had threatened to kill him. However, she accepted that at no point had the adjudicator said that he did not accept that threat had been communicated to his father. On the other hand, the fact that the police were looking for the appellant did not necessarily mean that there was a warrant for his arrest. She agreed that the Tribunal required to consider the position of the appellant, but the evidence which he gave about his being threatened did not amount to a risk of the police coming to get him wherever he was in India. In reaching their decision the Tribunal were entitled to take into account that the reports before them showed that persons who did not have a leading role were not at risk outside the Punjab. The Tribunal were well aware that the basis of the appellant's case was the advice which he had received from his father. In agreeing with the adjudicator their decision in effect incorporated his views.

The decision of the Tribunal is on any view not happily expressed. There is considerable force in the criticisms made by Mr. Bovey of their approach to the statement of Dr. Rai, on the one hand, and the material contained in the Canadian and U.S. reports, on the other hand. The parties and this court should be able to ascertain without difficulty which parts of material of this kind has been accepted or rejected; and also the view taken by the Tribunal as to the relevance of such accepted material to the grounds of their decision. In the present case what the Tribunal have said is not adequate for these purposes. More fundamentally, their decision appears to us to involve a degree of confusion and inconsistency. The view that the appellant was not at risk of persecution outwith the Punjab rested on the view that he could not be regarded as an activist or a high profile militant. However, this does not take adequate cognisance either of his personal history of repeated mistreatment, or of the fact, which did not appear to be in dispute, that after he had left the Punjab to seek refuse in Uttar Pradesh he was advised by his father to leave India since the police were looking for him and had actually threatened to kill him. The Tribunal appear to have treated this as relevant only to what would have been his position if he had returned to the Punjab, and do not appear to have considered the pertinence of that actual threat to his personal circumstances within another State. Their treatment of the two reports and the statement of Dr. Rai do not leave us with a sense of confidence that they have fully taken into account the risk that the appellant would be identified and subject to persecution in another State in consequence of the attitude of the police in the Punjab. On these grounds we consider that their reasons are inadequate and that the appeal should be allowed.

The remaining question is as to future procedure. Mr. Bovey submitted that, in respect that the adjudicator had been the person who had originally determined the facts of the case, it should be returned to him for further hearing, and that it lay within the power of the court, in exercising its jurisdiction under the 1993 Act, to require that this should be done. For the respondent Mrs. Stacey submitted that it was more appropriate that the case was remitted to the Tribunal. They were in themselves able to entertain fresh evidence as they had done in the present case, and could include an assessment of the up-to-date position. A remit to the Tribunal was particularly appropriate where the main criticism of their decision was that they had provided inadequate reasons for arriving at their decision.

We are in no doubt that the case should be remitted. The role of this court is limited to one of dealing with any question of law which arises in relation to the decision of a Tribunal. The present case is not one in which, on the material before them, the Tribunal were bound to come to a particular conclusion. In the circumstances it is plain that the appropriate course is for the case to be remitted to the Tribunal for further hearing, at which they can take into account any up-to-date material which is founded upon by the parties.