Scottish Court of Session Decisions

The petitioner entered the United Kingdom on 22 November 1995. He applied for asylum on entry. His application was refused. He appealed against the initial decision and, in pursuing his appeal, altered the basis on which asylum was claimed. The special adjudicator, Mr Deans, refused the appeal on 24 July 1997. The chairman of the Immigration Appeal Tribunal refused leave to appeal on 8 August 1997. Those decisions were not challenged at the time and have not been challenged by the petitioner in the present petition. The grounds of decision by the special adjudicator and the Tribunal were, generally, that the petitioner's claim for asylum was not based on a reason which fell within the Convention on the Status of Refugees.

The circumstances on which the petitioner relied in pursuing his appeals, and in making the application with which the present petition is concerned, were related to a dispute between his family and a neighbouring family about the ownership of a parcel of land in Pakistan. The dispute had continued for a period of years. The petitioner avers that a member of his father's bodyguard and his brother were killed by supporters of the rival family. It appears, however, from the findings made by the special adjudicator that there were allegations of violence used by each side of the dispute towards the other. The head of the opposing family was one Gulam Mohammed. His brother, Noor Mohammed, had also been murdered, and this had "created a further strand in the dispute" between the two families, according to the submissions of the petitioner's agent. The petitioner states that he moved from his home area to Rawalpindi to escape from the recurring violence. He was followed there, and there were threats against his life. In the present petition the petitioner founds on the findings made in the earlier proceedings that his account of violence towards his family was credible. For the purposes of the application for a first order, it has to be accepted that the petitioner is a member of a family engaged in a violent campaign against another family over a land dispute, and that he would be at risk of serious violence if he were to return to his home territory, or anywhere in Pakistan within reach of the avenging forces of the rival family.

The petitioner's initial response to the refusal of his asylum application and appeals was to disappear in September 1997. He was found in a restaurant wearing a waiter's uniform, and waiting at tables two years later.

The petitioner then, and for the first time, sought exceptional leave to remain in the United Kingdom in a letter written by his solicitor, Mr Deb, dated 16 September 1999. The letter set out in brief the history of the petitioner's previous applications and appeals, and referred particularly to the special adjudicator's view that the petitioner's account of his circumstances was credible. The basis of the application was expressed as follows:

No new material was introduced at that stage. By return, the Chief Immigration Officer refused the application. It was noted that there was nothing new in the application. It was noted that at the time of the refusal of asylum the petitioner had been asked whether he wished to apply for entry on any other basis. Mr Deb was invited to contact the office if any new or compelling information came to hand. On 5 October, 1999, an affidavit by the petitioner's father was submitted setting out additional details of the continuing dispute between the two families.

The application was passed to the Integrated Casework Directorate. On 19 October 1999, the decision letter which is the basis of the present petition was issued. It appears from its terms that the writer had available prior correspondence which was not produced to me. Neither party made reference to that matter. The letter referred to the application dated 16 September 1999, and continued as follows:

On 29 October, the petitioner sought a first order in the present petition and interim liberation. Mr MacDonald outlined the circumstances already narrated. He accepted that the petitioner was not a convention refugee since the basic local issue was a land dispute with another family. He had made an application to the Secretary of State for exercise of his residual discretion. This was usually extended to political refugees who might be permitted a finite period of residence subject to later review. It was not uncommon for there to be a cycle of review and extension. But the discretion was general both as to the classes of persons who might be permitted to stay and as to period. The petitioner's account of the primary facts had been accepted. The decision of the immigration officer was effectively superseded by the referral of the case to the Integrated Casework Directorate which intimated its decision on 19 October, 1999. It appeared from the terms of the letter that the writer thought he was dealing with an asylum application. If that were not the interpretation, the reasoning was so shrouded in mystery that it could not be said that the writer had addressed the relevant question. Alternatively, if it were accepted that the writer had addressed the right question the result was Wednesbury unreasonable. There was no parallel in any reported case. But the Minister of State had made statements to the effect that the United Kingdom would protect people who were at risk. The change of Government in Pakistan was irrelevant since the issue was not political.

For the respondent it was argued that the petition should be dismissed. A recent petition by the petitioner, in very similar terms, had already been dismissed. There was no material change in the presentation. It was impossible to see how a Wednesbury case could succeed unless the Secretary of State was bound to permit residence where a fear of violence was established. The proposition could not be sustained. The case was on all fours with Mohammed Akbar, an unreported decision of Lord Gill. The petitioner did not seek further time to develop his case. There was no factual dispute. It was accepted that the special adjudicator had made the findings relied on. One was therefore in a position to proceed to a determination of the issue at this stage and on the petitioner's averments. There was no sustainable argument. The decision letter was clear. It was not surprising that the letter dealt with issues as it did. The application had developed the petitioner's claim on the basis of the disposal of his asylum application. It was not surprising that the decision taker took the same starting point. But, in any event, the final position of the decision taker was unassailable. He had plainly turned his mind to the relevant issue. It was impossible to see what else could be asked of him.

Mr MacDonald had referred to a statement of policy which he did not have to hand. I therefore gave him an opportunity to search for any additional material that he might wish to place before me, or to develop in the pleadings. He was unable to produce any additional material. His response to the argument presented by Mr Dewar was developed without such material. It was inappropriate to deal with the case at this stage. The letter was potentially ambiguous. If the matter proceeded the Secretary of State would require to produce an affidavit to explain what had been considered. One could not be certain at this stage that the petitioner was bound to fail. He referred me to Supperstone & O'Dempsey on Immigration & Asylum; the Joint Council for the Welfare of Immigrants' handbook, Immigration, Nationality & Refugee Law, and R v Secretary of State for the Home Office ex p. Aboudou Zibrila-Alassini [1991] Imm. A.R. 367 in further support of his Wednesbury unreasonableness argument. To send the petitioner to Pakistan was analogous to sacrificing him. That could not be reasonable.

In my opinion Mr MacDonald's attempt to rely on a statement of general policy was wholly abortive. It is unnecessary to say more than that he was unable to produce any evidence of a relevant policy, much less to say that the petitioner had a legitimate expectation of having the benefit of a general policy extended to him or could in any other way rely on a failure to apply to him a policy of general application.

Secondly, I consider that the attack on the form of the decision letter of 19 October is without foundation. It is clear that the writer reconsidered the question of asylum. The terms of Mr Deb's letter dated 16 September 1999 invited that course by referring to and founding on the earlier material. The representation that the petitioner still entertained a fear of persecution coupled with a reference to the Convention was less than clear. It might have been read as a re-assertion of a claim for asylum, or simply as a general assertion that the petitioner was afraid to return to Pakistan whether or not he had a Convention reason for seeking to remain in the United Kingdom. But the petitioner can have no legitimate complaint that the issue of asylum was considered afresh, whether as a matter of obligation or as a concession, provided that it is plain that the respondent did consider and deal with the issue of exceptional grounds for remaining in the United Kingdom which had been raised with him. Having regard to the final paragraph of the decision letter I am of opinion that there is not the slightest doubt that he did. As a matter of structure of the letter and content of the paragraph it is obvious that the writer had turned from the question of asylum to the issue of exceptional grounds. There is no ambiguity in the letter. The arguments based on its terms are without substance.

There remained the argument that the decision was Wednesbury unreasonable. As originally developed, that argument amounted to no more than an assertion, based on the facts found in the course of the asylum process, and left undeveloped by reference to cases bearing even a remote resemblance to the present case. I was not persuaded that the argument had any substance. Mr MacDonald's development of the argument in his reply to Mr Dewar did not improve the position, though the final ground of appeal suggests that I may have misunderstood it. It is suggested in that ground of appeal that in order to dismiss the present petition I would have required to be satisfied that it was reasonable to return the petitioner to a risk of serious injury or death in Pakistan. As I understood Mr MacDonald's response, no such submission was made to me. If it had been, I would have wanted full argument on the basis on which it was contended that it was a matter for me as Lord Ordinary to make a personal assessment of any risk to the petitioner, and to use that as the measure or a measure of the Secretary of State's due performance of his discretionary duties. The argument appears to be contradicted by the decision in Aboudou Zibrila-Alassini where the application of judicial review was refused and the risk to the applicant was referred to the Home Office. In my view it also reflects a misconception of the role of the court in judicial review proceedings.

In my opinion, the textbooks and decision to which Mr MacDonald referred did no more than indicate that exceptional leave might be granted entirely at the discretion of the Home Office: Immigration, Nationality & Refugee Law at page 106-7; and Supperstone & O'Dempsey at page 455. It was not disputed by the respondent that applicants who could show that they had a fear of persecution but who could not bring themselves within any of the heads of the Convention might obtain exceptional leave to remain in the United Kingdom. But the basis on which such exceptional leave may be granted is entirely outwith the statutory framework of immigration law. There is no relevant authority. In Aboudou Zibrila-Alassini, Rose J. indicated that the petitioner might receive sympathetic consideration if he applied for exceptional leave. It is not recorded whether he did so. The ground for such an application was advanced for the first time before the court. It had not been before the Secretary of State. The petitioner, a member of the Muslim minority, feared that if he were to return to Togo he ran the risk of selection as a sacrificial victim in "old religion" rites. He sought political asylum in the United Kingdom. His application was refused, and his application for judicial review failed. The Divisional Court's suggestion of a fresh application focused on the humanitarian considerations which the Secretary of State might have in mind while emphasising that it was a matter entirely within executive discretion. In this case the decision letter indicates that it was precisely such humanitarian considerations which were addressed. In my opinion, Mr MacDonald's Wednesbury unreasonableness case was not improved by the additional references he provided.

The remaining point appeared to be that if the Secretary of State had to lodge answers and an affidavit expanding on the procedures followed something might turn up which would add weight to the petitioner's case. I did not consider that it was appropriate to require any further action by the respondent when the whole issue appeared adequately focused in the documents produced and the pleadings of the petitioner. This was already a second attempt at stating a relevant case. There was no merit in prolonging what appeared to be a hopeless application.

In the whole circumstances I considered that the petition had to be dismissed.