Scottish Court of Session Decisions

[1] This is an appeal by Jasvir Singh against a determination of the Immigration Appeal Tribunal dated 3 September 1997 dismissing his appeal from the determination of the Special Adjudicator, who was not satisfied that he was a refugee in need of international protection. The Special Adjudicator was of the view that there was a reasonable likelihood that, if he were returned to the Punjab, the appellant would be persecuted by the authorities because of his support of an independent Khalistan. But he was also satisfied that the appellant could have sought refuge in another state in India. Before the Immigration Appeal Tribunal the respondent did not challenge the finding that there was a reasonable likelihood of persecution if the appellant were returned to the Punjab. The only issue for the Tribunal therefore was the question of "internal flight".

[2] For present purposes the approach taken by the Tribunal can be gleaned from a short passage in their determination:

The Tribunal clearly proceeded on the basis that there was an onus on the appellant to demonstrate a reasonable degree of likelihood that it would not be reasonable for him to be returned to another part of his home country. During the hearing of the appeal to this court, the soundness of that approach emerged as an issue. We note, however, that in R. v. Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958 at p. 994 F Lord Keith of Kinkel observed:

We refer also to the passage to the same effect in the speech of Lord Goff of Chieveley in the same case (1988] A.C. at p. 1000 F - G).

[3] The submission of Mr. Sutherland on behalf of the appellant was that the Immigration Appeal Tribunal had adopted the wrong approach to the assessment of the evidence in this case. In the course of those submissions he referred us to the unreported decision of the Court of Appeal in Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449. When Mr. Lindsay came to address us on behalf of the respondent, somewhat to our surprise, it emerged that he was not aware of that decision. The hearing required in any event to be continued to a second day and, when it resumed, Mr. Lindsay was in a position to make certain submissions with regard to that case. We need only mention one of those submissions. Mr. Lindsay explained that, while accepting the bulk of the decision of the Court of Appeal in Karanakaran, the respondent considered that the observations of Sedley L.J. on the onus of proof in relation to the issue of internal flight were incorrect and inconsistent with the approach of Lord Keith and Lord Goff in Sivakumaran. Mr. Sutherland for his part drew attention to a passage in the opinion of Brooke L.J. and submitted that there was no such inconsistency.

[4] In his opinion ([2000] 3 All E.R. at p. 456 j, at paragraph 40), Brooke L.J. says that, in relation to internal flight, the applicant "must show that it would be unduly harsh" for him to live" in the part of the country concerned. As Mr. Sutherland submitted, that language might suggest that there was some kind of onus on the applicant. But Brooke L.J. specifically agreed with the opinion of Sedley L.J. which contains an extended passage beginning with paragraph 125 ([2000] 3 All E.R. at p. 474 e - f):

That extended passage comes to an end in the very last paragraph of his Lordship's opinion ([2000] 3 All E.R. at p. 480 a, at paragraph 139) where he says:

Robert Walker L.J. agreed with both Brooke L.J. and Sedley L.J. Indeed it is clear from paragraphs 116 and 133 ([2000] 3 All E.R. at p. 472 h and p. 476 j) that their Lordships intended both opinions to be read together.

[5] Mr. Lindsay submitted that if, as both Brooke L.J. and Sedley L.J. accepted (in paragraphs 63 and 138), the issue for any decision-maker comprises "a single composite question" (Ravichandran v. Secretary of State for the Home Department [1996] Imm AR 97 at p. 109 per Simon Brown L.J.), then it was for the applicant in this case to establish all the necessary components of that single question. In that sense there was an onus of proof on him. For that reason, he submitted, the conclusion of Sedley L.J. that no question of the burden of proof arose was incorrect. Mr. Sutherland submitted that that conclusion required to be read in the light of Brooke L.J.'s observations in paragraph 40 where he appeared to accept that it was for the applicant to show that it would be unduly harsh for him to live in the particular place ([2000] 3 All E.R. at p. 456 j).

[6] The submissions addressed to us so far suggest that, in the light of Karanakaran, there may be an important issue as to whether there is any burden of proof on an applicant, at least in respect of matters relating to internal flight. It was evident that neither counsel had analysed this aspect of the decision in Karanakaran in depth. Nor were they in a position to refer us to other authorities, in particular any of the Commonwealth authorities which might throw light on the issue. Mr. Lindsay suggested that in Karanakaran counsel had not made submissions in relation to onus. Be that as it may, the decision of the Court of Appeal is, with respect, one which has clearly been considered with the greatest care and which is explicitly intended to provide guidance for decision-makers. Moreover, the Home Secretary did not appeal the decision to the House of Lords. We notice that in their decision in Horvath v. Secretary of State for the Home Department [2000] 3 WLR 379, the House of Lords did not deal with the question of standard of proof. Indeed, although Lord Clyde referred to Karanakaran in that connexion, he expressly stated that he would say nothing about it ([2000] 3 W.L.R. at p. 399 G - H). In these circumstances it would in our view be highly undesirable for this court to decide this case or to make any observations on the critically important question of onus without having the benefit of a full analysis of the relevant material.

[7] We have therefore continued the hearing of the appeal to a date to be fixed. At the resumed hearing we shall expect counsel to be in a position to provide a full analysis of the opinions in Karanakaran in relation to onus. We shall also expect to be referred to any prior authority, including Commonwealth authority, on the point, as well as to any relevant decisions and analysis since Karanakaran.