Scottish Court of Session Decisions

[1] This is an appeal against a final determination of the Immigration Appeal Tribunal notified to the appellant on 9 April 1998. The appellant, a citizen of Pakistan, entered the U.K. on 29 August 1990, being granted leave to enter for six months subject to a condition prohibiting employment. He had travelled direct from Pakistan, apart from a flight stopover in Turkey. He made a claim for asylum on 4 February 1991. This claim was refused on 31 October 1991. The grounds of refusal were that he had failed within a reasonable time to produce the evidence required to support his claim. He appealed against this refusal and his appeal was dismissed on 8 December 1992. However, following a recommendation by the adjudicator, the appellant was granted an asylum interview on 7 June 1995 in order for the respondent to consider the merits of the asylum claim. Following that interview, his claim was refused by the respondent in a letter dated 12 September 1995. The appellant was served with a notice of removal, giving directions for his removal to Pakistan, on the same date. He appealed against those directions. The appeal came before an adjudicator on 7 March 1996. The appellant failed to attend, although he was represented by a solicitor. The adjudicator refused to adjourn the appeal and refused the appeal on 29 March 1996. Thereafter, proceedings were taken by way of application for judicial review of the adjudicator's decision not to adjourn the appeal and this application was successful.

[2] Accordingly, the appellant's appeal against the respondent's refusal of his application for political asylum came to be heard de novo by a different special adjudicator on 11 November 1997. The adjudicator was the Regional Adjudicator for Scotland and Northern Ireland, Mr. Deans. The adjudicator dismissed the appeal on 18 December 1997. The Immigration Appeal Tribunal granted leave to appeal against the adjudicator's decision on 9 January 1998 and the appeal was heard before the Tribunal on 3 March 1998. On 9 March 1998 the appeal was dismissed. Leave to appeal to the Court of Session was refused by the Immigration Appeal Tribunal but granted by the Court of Session unopposed. Mr. Bryce, for the appellant, explained to us that complications concerning the obtaining of legal aid thereafter have been the principal cause of delay in this appeal being heard in the Court of Session.

[3] In substance, the present appeal involves the proposition that the Immigration Appeal Tribunal erred in law by failing to notice that the adjudicator had erred in law by failing to deal, in the reasons given for his determination, with statements made by the appellant to the effect that he had been president of the local Bhutto guard and that, accordingly, the appeal should be remitted back for rehearing by the Immigration Appeal Tribunal. Mr. Bryce, for the appellant, accepted that the grounds of appeal before the Immigration Appeal Tribunal did not include the only ground of appeal now advanced. He also accepted that the grounds of appeal lodged in connection with the application for leave to appeal to the Court of Session did not include the present ground of appeal, which was first raised in October 1999. Mr. Bryce's submission was that there was sufficient information before the Immigration Appeal Tribunal to alert them to the point, notwithstanding that it had not been directly raised on behalf of the appellant. Miss Maguire, for the respondent, agreed that the issue properly before this court is whether the Immigration Appeal Tribunal erred in law. In terms of section 9(1) of the Asylum and Immigration Appeals Act 1993, the appellant required to show that the Tribunal had erred on a question of law material to their final determination of an appeal under Part II of the Immigration Act 1971. She also said that, in the procedural circumstances of this particular case, and expressly without prejudice to the position which the respondent might adopt in other cases in different procedural circumstances, she did not propose to found upon the absence from the grounds of appeal lodged in making application for leave to appeal to the Court of Session of the ground of appeal now advanced.

[4] While it is agreed that in order to succeed in this appeal the appellant requires (1) to show that the Tribunal should have identified and dealt with the contention that the adjudicator erred in law and (2) that that contention involves a question of law material to the Tribunal's determination in that the adjudicator did err in law, there was heavy emphasis in the submissions to us upon the second of these two points. This is understandable because the criteria to be applied so far as the first point is concerned being agreed, application of those criteria depends very much on the strength of the submission for the appellant on the second point. We were referred to the case of R. v. Secretary of State for the Home Department ex parte Robinson [1998] QB 929. The Court of Appeal required to consider the duties of adjudicators and Immigration Appeal Tribunals to consider points of law not argued before them. Lord Woolf M.R. said (at pages 945-6):

[5] We note that that view was expressed in relation to applications (1) to the immigration appeal tribunal for leave to appeal to it against the special adjudicator's decision and (2) to the High Court [in England] for leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal to it against the special adjudicator's decision. Neither such class of application is concerned with a situation where a Convention point (obvious or otherwise) has not been taken or focused at any stage prior to proceedings by way of appeal from the tribunal to the Court of Appeal (or in Scotland to the Court of Session). In the absence of argument to the contrary we are prepared, for the purposes of this case, to proceed on the basis that the same approach is appropriate; but we should not be taken as deciding that that is so.

[6] It was accepted in the present case that the appellant required to show that on the information before them the tribunal should have recognised as a "readily discernible...obvious point of Convention law which favours the applicant although he has not taken it..." the contention that the adjudicator had erred in law as now alleged, and that to qualify as such an "obvious point" the contention required to have "a strong prospect of success" if it was argued. It is against the background of acceptance by the appellant's counsel of these criteria that we turn now to consider the submission that the adjudicator did err in law.

[7] In his determination and reasons, the adjudicator stated that the basis of the appellant's claim for asylum was summarised in the respondent's refusal letter of 12 September 1995 in the following terms:-

The adjudicator explains that the refusal letter went on to record that the PPP were, at the time the letter was written, heading a coalition Government holding power both nationally and in the appellant's home province of the Punjab. In his submission, Mr. Deb, for the appellant, had pointed out that circumstances had changed in Pakistan since the date of the refusal letter and that the PPP was once again in opposition. He had submitted that it had been open to the respondent to re-interview the appellant about his circumstances but the respondent had not done this. The adjudicator had pointed out to Mr. Deb that he had an opportunity at the appeal hearing to put forward evidence in relation to the situation in Pakistan but he had not lodged any additional documentary evidence nor himself given evidence. The adjudicator states that the appellant claimed that his difficulties with the authorities in Pakistan began in 1981 when he was detained for two to three weeks. He claimed to have further detentions in 1984-1985 and in 1988. He claimed to have been tortured in custody in 1981. He claimed false charges were brought against him in 1988. He claimed that when the police were unable to find him they arrested his father and then arrested his younger brother and tortured him. The appellant's allegations of torture were, the adjudicator found, lacking in specification and detail and were unconvincing. His explanation for not leaving Pakistan until 1990 also lacked credibility. At interview the appellant initially insisted that he did not leave until 1990 because he was expecting the situation to improve. Only when he was asked for the third time about his decision to leave in 1990 did he mention that the police were trying to involve him in an illegal arms case. The adjudicator found the appellant's reference to this alleged accusation at this stage, after he had twice already been asked about his decision to leave in 1990, to be lacking in credibility. The appellant's contention at interview in June 1995 that it was not safe for him to return to Pakistan was also lacking credibility. At that time the PPP were in power and the adjudicator was not satisfied by the appellant's claim that there were false cases against him. The adjudicator said:

The adjudicator concluded that the appellant had failed to satisfy him that on the basis of his own particular circumstances he faced a serious possibility of persecution by reason of his political opinion were he to return to Pakistan.

[8] Mr. Bryce said that the only error of law which he could submit had been made by the adjudicator was that he had failed to deal with what Mr. Bryce described as the "chapter of evidence" about the appellant's alleged presidency of the local Bhutto guard. It is convenient at this stage to relate what was the information before the adjudicator as to the appellant's alleged involvement with the Bhutto guard. That information is contained in the interview record of the appellant's interview on 7 June 1995. In that interview, he stated that he required to get a passport in Pakistan in 1989 because he was under threat from the police in Pakistan. He was asked:

Later in the interview he was asked:

Later in the interview he was asked:

He said that he thereafter escaped from the police.

[9] Mr. Bryce made three submissions:-

Mr. Bryce said that he was not arguing that the adjudicator ought to have insisted on further information as to what is meant by being "president of the local Bhutto guard". He accepted that it was for the appellant to show any important distinction between being a member of the PPP and being president of the local Bhutto guard. If there was a "material category distinction" between the two it was for the appellant to show that. Mr. Bryce accepted that the adjudicator had disbelieved the appellant as to his having been involved in being in trouble with the police in any of the various ways alleged by him in connection with his political activities. He accepted that it was for the adjudicator to determine whether the appellant's claim of being president of the local Bhutto guard was credible and that it was for the adjudicator to decide whether any such claim was material. His submission was that the adjudicator's error in law lay in failing to deal with the Bhutto guard evidence explicitly. In support of his submission that the adjudicator had erred in law, Mr. Bryce referred to the case of Wordie Property Co. Limited v. Secretary of State for Scotland 1984 S.L.T. 345 and in particular to what was said by the Lord President (at page 348) with respect to the Secretary of State's statutory duty involved in that case "to notify his decision and his reasons therefor" as involving that he gave "proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it." Mr. Bryce referred also to the case of Safeway Stores plc v. National Appeal Tribunal 1996 S.C. 37 concerning the duty "to intimate a decision and the reasons for it", where the Lord Justice Clerk said (at page 40), "Where there is an obligation to give reasons, the reasons must deal with the substantial questions in issue in an intelligible way, and must not leave the informed reader or the court in any real doubt as to what the reasons for the decision were, and what were the material considerations which were taken into account in reaching it." In the present case, the adjudicator required to make a determination which complied with rule 2(3)(b) of the Asylum Appeals (Procedure) Rules 1996. This rule requires that "every determination shall consist of a concise statement of (i) the decision on the substantial issues raised; (ii) any findings of fact material to the decision; (iii) the reasons for the decision." He next referred to the case of Zia v. Secretary of State for the Home Department 1994 S.L.T. 288. Lord Prosser had there (at page 291L) noted as apparently undisputed statements concerning the requirements of an adjudicator's reasons in what was said by Schiemann J. in R. v. Immigration Appeal Tribunal ex parte Amin (1992) Imm. A.R. 367, "In my judgment adjudicators should indicate with some clarity in their decisions: (1) what evidence they accept; (2) what evidence they reject; (3) whether there is any evidence as to which they cannot make up their mind whether or not they accept it; (4) what, if any, evidence they regard as irrelevant." Mr. Bryce next referred to the case of Asif v. Secretary of State for the Home Department 1999 S.L.T. 890. This was a case involving application for judicial review on the grounds that the adjudicator's decision was incomplete so far as findings in fact were concerned and included illogical reasons for rejecting the applicant as credible. Accordingly, it raised similar considerations to the present case so far as the former of these two points is concerned. Mr. Bryce referred to a pass

In the circumstances of this case, the arbitrator's reasons were inadequate in omitting any mention of the claimed presidency of the local Bhutto guard. Finally, Mr. Bryce referred to the case of Singh (Jaswinder) v. Secretary of State for the Home Department 1998 S.L.T. 1370 where Lord Macfadyen, referred (at page 1374C) to the need for "anxious scrutiny" to be applied to the decision of a special adjudicator. This was having regard to the potential gravity of consequences inherent in asylum cases. He accepted what Lord Macfadyen said (at page 1374D-E) that what was properly involved was proper application of the Wednesbury test concerned rather than modification of the terms of that test.

[10] Miss Maguire, for the respondent, submitted that the adjudicator had been correct not to find the claimed presidency of the local Bhutto guard as a material matter in terms of his determination. The important point was that there had been no evidence whatsoever before the adjudicator that being a member of, or even president of, the local Bhutto guard would place the appellant in a distinct category for present purposes different from that of being a member of the PPP. It was quite clear that what was established to the satisfaction of the adjudicator was that the appellant was a member of the PPP as he claimed. All that might be taken from the evidence before the adjudicator was that the Bhutto guard was part of the PPP. Any mention of the Bhutto guard in the information before the adjudicator was claimed involvement incidental to membership of the PPP. It was accepted correctly for the appellant that it was not for the adjudicator to embark on an investigation himself. There was no information before the adjudicator to suggest that the allegation about involvement with the Bhutto guard was material to the adjudicator's decision. In the circumstances, there was no substance in the contention that the adjudicator should have made findings in fact relating to the appellant's claim about the Bhutto guard. Furthermore, it is clear from the adjudicator's findings as to credibility of the appellant on a number of matters that any specific finding by the adjudicator would not have been material to his determination. The adjudicator had made detailed findings with regard to the appellant's claims about being in trouble with the police, his allegation of torture, persecution being the reason for having left Pakistan, the police trying to involve him in an illegal arms case in 1990 and the appellant's explanation for delay in seeking asylum. The adjudicator was not satisfied that the appellant had been detained in 1988 nor that he had been implicated by the police in false cases in 1988 and 1990. He was not satisfied that the appellant had been tortured in custody. He did not accept that the appellant had suffered persecution because of his political activities. He had been a member of the PPP since 1978/79. His complaints at the time of interview had related to times when he would have been a member of the Bhutto guard. Accordingly, how would it have made any difference if the adjudicator had made specific findings regarding any significance of being president of the local Bhutto guard? Any presidency of the local Bhutto guard was irrelevant to the determination. Accordingly, the adjudicator did not require to make any finding about the Bhutto guard and, even if the situation had been that he should have done, this would have had no material consequence so far as his determination was concerned in the light of his findings about the credibility of the appellant.

[11] With regard to the submission on behalf of the appellant that the Immigration Appeal Tribunal should have identified and dealt with the ground of appeal now advanced on behalf of the appellant, Miss Maguire submitted, under reference to the passage in the case of R. v. Secretary of State for the Home Department ex parte Robinson already referred to [1998] QB 929 at page 945-6, that there was no substance in this contention and that the tribunal had made no error in law in failing to identify and deal with that ground. In any event, the ground was not material to the determination of the tribunal and for that reason also the tribunal had not erred in law. Miss Maguire also referred to Singh (Parminder) v. Secretary of State for the Home Department (26 October 1999, unreported) where an Extra Division, in proceedings for judicial review of a refusal by the tribunal to grant leave to appeal to it from the special adjudicator's decision, had accepted and applied the Robinson test.

[12] In our opinion, the appellant has not shown that the tribunal erred in law. In particular, assuming the Robinson test to be applicable to the present situation, it has not been shown that the ground of appeal advanced before this court involved a readily discernible and obvious point of Convention law which favoured the applicant, being a point which had a strong prospect of success if argued. In reaching that conclusion we have, against the procedural history of this case, found it appropriate to consider the detailed submissions addressed to us as to whether or not the adjudicator did err in law. We are satisfied that he did not. In particular, it has not been shown that the adjudicator should have made any explicit finding in relation to the appellant's alleged presidency of the local Bhutto guard. Furthermore, we are satisfied that, had he chosen to do so, his other findings demonstrate that any express finding concerning the Bhutto guard would have been immaterial to his determination.

[13] As to the duties of an adjudicator in giving reasons, we agree with what was said by Lord Penrose in the case of Asif already referred to on that matter. We agree in particular with the passage in Lord Penrose's opinion, already approved in the case of Singh (Daljit) v. Secretary of State for the Home Department (2000 S.L.T. 243 at 246C) and referred to earlier in this opinion (at page 894G/H) where he says:

We also agree with the acceptance inherent in Lord Penrose's decision of the contention (at page 893J-K) that the comments of Schiemann J. there referred to, if applied literally, would require every decision to contain a categorised analysis of every piece of evidence. That cannot have been what the judge intended. Furthermore, applying the test of the Lord Justice Clerk in the Safeway Stores case (at page 41A), we are satisfied that the adjudicator's determination and reasons do not "leave the informed reader or the court in any real doubt as to what the reasons for the decision were, and what were the material considerations which were taken into account in reaching it". In particular, we are satisfied that, on a fair reading of the adjudicator's determination and reasons, the adjudicator was not satisfied that any evidence before him relative to the Bhutto guard materially assisted the appellant's application. The requirements of rule 2(3) of the Asylum Appeals (Procedure) Rules 1996 are similarly satisfied. In short, there was nothing in the material before the adjudicator which could or should have led him to suppose that presidency of the local Bhutto guard was, in the context of the appellant's history and circumstances, significant and material to the question whether the appellant had a well-founded fear of being persecuted for reasons of membership of a particular political opinion. For the same reasons it is plain that the tribunal did not err in law by failing to recognise and give effect to any obvious point of Convention law favourable to the appellant.

[14] Having rejected the appellant's primary ground of appeal we record only briefly at this stage what was an additional necessary ground of appeal for the appellant had he succeeded on the primary ground. This additional ground stated:

Mr. Bryce submitted that his submissions on his primary ground of appeal covered this secondary ground of appeal. Miss Maguire submitted that, as the adjudicator had found that the appellant did not have a well-founded fear of persecution in the Punjab, it could not be contended that he would have such a fear elsewhere. In any event the adjudicator was right in his conclusion that the applicant was not in the category of a prominent person on the basis of the material before him. The relevance of reference to "prominent persons" arises from a passage from the report mentioned, cited in the adjudicator's determination and reasons, relating to the risk of enforcement in one province of an arrest warrant issued in another being greater in the case of "prominent persons". The adjudicator concluded that he was not satisfied that the appellant was such a "prominent person". On the matter of internal flight alternative, we say only that we are not persuaded that the adjudicator was not entitled to make the alternative determination which he did on the information before him. However, the matter is academic upon our conclusions with regard to the primary ground of appeal.

[15] On the whole matter we refuse the appeal.