Scottish Court of Session Decisions

The petitioner is a citizen of India. The respondent is the Secretary of State for the Home Department ("the Secretary of State") and is responsible for the administration and enforcement of immigration legislation throughout the United Kingdom. Answers have been lodged on behalf of the respondent. The petition was served on the Special Adjudicator and the Chairman of the Immigration Appeal Tribunal ("the IAT") whose decisions are the subject of this application, but no Answers have been lodged on behalf of either of them.

The petitioner entered the United Kingdom illegally in October 1994. On 10 November 1994 he applied for political asylum. In June 1996 the Secretary of State made a decision to refuse the petitioner's application for political asylum. On 16 August 1996 the petitioner was served with removal directions. The petitioner appealed against these directions and an appeal hearing took place before the Special Adjudicator on 21 November 1996. By a determination dated 23 December 1996 and sent by post on 6 January 1997 the Special Adjudicator dismissed the appeal. The petitioner sought leave to appeal to the IAT against this determination. By a determination dated 23 January 1997 and notified on 28 January 1997 the Chairman of the IAT refused leave to appeal. Thereafter an immigration officer made a decision to issue removal directions dated 10 February 1997, requiring that the petitioner be removed from the United Kingdom on 15 February 1997. These directions were served on the petitioner on 13 February 1997 and he was taken into detention on that date. The present application was lodged on 17 February 1997. By interlocutor dated 18 February 1997 the petitioner was granted interim liberation. Answers for the Secretary of State were lodged on 5 January 1998. I am not aware why more rapid progress was not made in the meantime. The Petition and Answers came before me for a first hearing on 8 January 1998 but I discharged the diet so that further enquiries could be made. I am not aware of the outcome of those enquiries. No adjustment was made to the Petition or the Answers. The matter came before me again for a first hearing on 17 and 18 February 2000. No explanation was given for all this delay. It cannot be regarded as satisfactory that the first hearing should finally have taken place more than three years after the determination of the Chairman of the IAT and indeed almost three years after the lodging of this application. There were indications that there have in the meantime been material changes in the petitioner's circumstances, but in the context of an application for judicial review there is no scope for me to take account of them: I am necessarily restricted to the information which was before the Special Adjudicator and the Chairman of the IAT.

The Asylum and Immigration Appeals Act 1993 provides by section 1 that the expression "claim for asylum" means a claim made by a person that it would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to that Convention for him to be removed from, or required to leave, the United Kingdom. By Article 1A(2) of the Convention the term "refugee" is defined as applying to inter alios any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Article 33(1) of the Convention provides that no contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. These provisions are reflected in provisions of the Immigration Act 1971, the 1993 Act, the Statement of Changes in Immigration Rules (HC 395) laid before Parliament on 23 May 1994 and the Asylum Appeals (Procedure) Rules 1996 (SI 1996/2070), to which reference was made in the course of the hearing but which I need not repeat here. I need only refer to section 8(4) of the 1993 Act which provides, in circumstances such as the present, for an appeal to a Special Adjudicator against directions for removal from the United Kingdom on the grounds that the appellant's removal in pursuance of the directions would be contrary to the United Kingdom's obligations under the Convention. By Rule 2(3) of the 1996 Rules an appeal is determined when written notice is sent of the decision whether or not the appeal should be allowed, and every determination is to consist of a concise statement of (i) the decision on the substantial issues raised, (ii) any findings of fact material to the decision and (iii) the reasons for the decision. Rule 13 provides inter alia that an appeal to the IAT may be brought only with the leave of the IAT, that an application for leave shall be made by serving upon the IAT the appropriate form accompanied by the original or a copy of the Special Adjudicator's determination together with all the grounds relied on, and that, when an application for leave has been decided, the IAT shall forthwith send to the parties to the appeal a notice recording its decision on the application for leave and, where leave to appeal is refused, the reasons for the refusal.

The duties of the Special Adjudicator and the IAT to give reasons for their determinations fall to be considered in light of Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 per Lord President Emslie at p. 348:

In the recently reported case of Singh v Secretary of State for the Home Department 2000 SLT 243 the First Division observed that the basic duty on statutory tribunals to give reasons would be satisfied if the decision maker's reasons came within the ambit of Wordie Property Co Ltd v Secretary of State for Scotland; the extent and adequacy of the reasons would vary with the circumstances, which would depend on the nature of the tribunal, its rules of operation, the scope of issues raised, the amount of evidential material involved and whether the decision was judicial or administrative. The Court in that case approved a dictum of Lord Penrose in Asif v Secretary of State for the Home Department, 12 January 1999, unreported:

Because of the criticisms which were directed against it, I require to quote the Special Adjudicator's determination in the present case in full. For convenience I have added paragraph numbers to it. It is in these terms:

The application for leave to appeal against this determination has not been lodged as a production, but its terms can be discovered from the determination of the Chairman of the IAT refusing leave to appeal. His determination was in these terms:

Although the Petition seeks inter alia reduction of both the determination of the Special Adjudicator and the determination of the Chairman of the IAT, counsel for the petitioner restricted his submissions at the hearing to the latter. His motion was that I should reduce the determination of the Chairman of the IAT and remit to the IAT to proceed as accords. In support of this motion counsel moved me to hold that it was Wednesbury unreasonable of the Chairman of the IAT to have refused leave to appeal. There was discussion during the course of the hearing about the duties of the Chairman of the IAT in considering whether to grant leave to appeal. In R. v Secretary of State for the Home Department, Ex parte Robinson [1998] QB 929 the Court of Appeal held inter alia that although in seeking leave to appeal the claimant was required to state the grounds of his appeal, the appellate authorities were neither limited by the arguments actually advanced nor required to engage in a search for new grounds and that, since they were obliged to ensure that the applicant's removal would not contravene the United Kingdom's obligations under the Convention and Protocol, where there was a readily discernible and obvious point in his favour, which had not been taken on his behalf, they, and the High Court exercising its supervisory jurisdiction by way of judicial review, should nevertheless apply it. This approach has been followed in Scotland: see, for example, the decision of the Extra Division in Parminder Singh v Secretary of State for the Home Department, 26 October 1999, unreported. It is therefore necessary to consider whether it was unreasonable to refuse leave to appeal against the Special Adjudicator's determination having regard both to the grounds of appeal and to the question whether there was a readily discernible and obvious point in the petitioner's favour which had not been taken on his behalf.

In order to bring himself within the provisions of Article 1A(2) of the Convention an applicant for political asylum must establish that he has a well-founded fear of persecution. There are two aspects to this. Firstly, he must establish that he has a subjective fear of persecution. Secondly, he must establish that this fear is objectively well-founded. These two aspects are clearly recognised in the leading case of R. v Secretary of State for the Home Department, Ex parte Sivakumaram [1988] AC 958, in which the House of Lords held that whether an applicant for refugee status had a "well-founded fear" of persecution within the meaning of Article 1A(2) was to be determined objectively in the light of the circumstances existing in the country of his nationality and that he had to demonstrate a reasonable degree of likelihood that he would be persecuted for one of the reasons referred to in Article 1A(2) if he were returned to that country. Reference may also be made to Macdonald's Immigration Law and Practice, 4^th Edition, para. 12.17, where the need to establish a genuine fear of persecution as a subjective element is discussed. The Special Adjudicator clearly recognised the need to make decisions on each of these two aspects. He decided, firstly, at para. [8] that the petitioner had not established that he had a genuine fear of persecution. He went on to decide, secondly, at para. [12] that even if the petitioner had established that he had a fear of persecution, that fear was not well-founded.

It is averred in the petition that the Special Adjudicator applied the wrong test when making his determination in holding that the petitioner had not shown that he had a genuine fear of persecution. It is also averred that it is not apparent what the Special Adjudicator meant by so holding, because this could mean either that the petitioner had no basis for a real fear which existed or alternatively that he did not have a fear at all and that it was a false claim to be fearful. It is suggested that the Special Adjudicator had thereby failed to give proper and intelligible reasons for his decision. Although counsel for the petitioner advanced submissions along these lines, he came to recognise, as I understood it, that the Special Adjudicator had indeed identified the correct issues. This led him to submit that in holding that the petitioner had not established a genuine fear of persecution the Special Adjudicator had not directed himself to all relevant material. In particular, counsel relied on information which is set out in the determination of the IAT in Charanjit Singh v Secretary of State for the Home Department, notified on 10 May 1996. In that case the IAT accepted inter alia evidence given by Dr Jasdev Singh Rai about categories of people who would be at risk of being placed on the "police list" as suspected terrorists/militants and therefore subject to arbitrary arrest, detention, and ill-treatment ultimately resulting in death or disappearance. This evidence contributed to the IAT's finding the appellant in that case to be credible in his claim that the police were looking for him and they would still be looking for him were he to return to India and accordingly that he had a subjective fear of return for a Convention reason. In the present case the Special Adjudicator was referred to the determination in Charanjit Singh v Secretary of State for the Home Department. Counsel submitted, however, that he had failed to take account of the evidence of Dr Rai, as set out in the determination in that case, in deciding whether the present petitioner had a genuine fear of persecution.

The question of the standard of proof to be applied in resolving issues such as this has recently been considered by the Court of Appeal in Karanakaran v Secretary of State of the Home Department, 25 January 2000, unreported. In Kaja v Secretary of State for the Home Department [1995] Imm AR 1 it was held that when assessing future risk decision-makers may have to take into account a whole bundle of disparate pieces of evidence. This decision had been generally interpreted as meaning that decision-makers were at liberty to substitute a lower standard of proof than that conventionally used in civil litigation when judges make findings about past and present facts. The Court of Appeal in Karanakaran held that the approach in Kaja was the approach which should be adopted at each of the stages of the assessment process. Although the Court were principally concerned with the standard of proof in deciding the question, derived from Sivakumaran's case, whether there was any reasonable degree of likelihood that the applicant would be persecuted for a Convention reason if returned to his own country, the approach is equally applicable to the consideration of such matters of fact as may have a bearing on the question whether the applicant has a genuine fear of persecution. Approaching the question in this way, I am unable to accept that the Special Adjudicator can be said to have misdirected himself or to have failed to give adequate reasons for holding that the petitioner had failed to show that he had a genuine fear of persecution for a Convention reason were he to return to India. Counsel for the petitioner did not dispute that in paragraph [7] the Special Adjudicator had correctly identified the standard of proof. At the end of that paragraph the Special Adjudicator stated that in addition to having regard to the judicial decisions referred to, he had also had regard to the determinations of the IAT referred to by the Secretary of State's representative. These included Charanjit Singh, as is recorded in paragraphs [5] and [6] of the determination. I can see no basis for thinking that the Special Adjudicator left out of account any relevant material, or for that matter took into account any irrelevant material, in deciding what he characterised as a question of the petitioner's credibility. Such a question was pre-eminently one for him to decide on the basis of the material before him, and I can see no ground, obvious or otherwise, on which it could be argued with any degree of force that this was a finding which he should not have made.

The decision against the petitioner on the point which I have just discussed was fatal to his application. As I have explained, however, the Special Adjudicator went on to consider whether, if the petitioner had established that he had a genuine fear of persecution, that fear would have been well-founded. His approach to the material before him which led him to his conclusion on this matter is criticised in the petition and this criticism was developed in the submissions of counsel for the petitioner. As I have already mentioned, before the Special Adjudicator reference was made to the material which was available in the case of Charanjit Singh, in particular the evidence of Dr Rai. Before the Special Adjudicator reference was also made to the United States State Department report for 1995. This was more recent in date than the report which was referred to in the case of Charanjit Singh. It was submitted that it was not clear from the Special Adjudicator's determination what weight he gave to the information which he had noted was being relied upon by the petitioner before deciding that the petitioner had failed to satisfy him that there was a reasonable degree of likelihood of his being persecuted for a Convention reason if he returned to India. Having regard to the authorities to which I have previously referred, I am not satisfied that there is any substance to this criticism. All questions of fact were for the Special Adjudicator to decide, and in the course of making his decision he required to evaluate the material before him and to decide what weight to give to any particular piece of information. While he was entitled to have regard to the material which had been relied on in Charanjit Singh, he was not bound to accept it, and in particular was not bound to accept it simply because it had been accepted in that case. He was entitled, and indeed since it was one of the main issues before him, bound to weigh this material against information coming from other sources and in particular the United States State Department report. In my opinion he cannot be criticised for reaching the view he did about this material, for the reasons given by him. He did not decide, as was suggested, that by 1995 there were no longer any human rights abuses in the Punjab. What he decided was that the situation in the Punjab had so far improved that there was no reasonable likelihood of persecution of a person in the position of the petitioner. In considering this question he appears to me to have adopted the approach to evidence laid down in Kaja and Karanakaran.

These are the main points which were made before me in support of the submission that it was Wednesbury unreasonable of the Chairman of the IAT to refuse leave to appeal. Some subsidiary points were made, in particular with regard to the letter stating that the petitioner was "declared proclaimed" and his opportunity for internal flight, but these matters were fully discussed in the determination of the Special Adjudicator and the only comment that requires to be made about them is that it lay within his province to decide what to make of them. Given the approach of the Special Adjudicator to the main questions whether the petitioner had established a genuine fear of persecution and, if so, whether that fear was well-founded, I can see no basis for holding that the Chairman of the IAT was Wednesbury unreasonable in holding that the Special Adjudicator's decision was based on an assessment of the evidence before him and was supported by it and that there was nothing in the grounds of appeal or otherwise justifying the grounds of leave to appeal.

For these reasons I shall, as moved by counsel for the Secretary of State, sustain the third plea-in-law for the respondents so far as directed to the determination of the Chairman of the IAT and refuse decree of reduction of that determination.