Scottish Court of Session Decisions

[1] This is an appeal by Jasvir Singh against a determination of the Immigration Appeal Tribunal ("the Tribunal") dated 3 September 1997 dismissing the appellant's appeal against a determination of the Special Adjudicator dated 3 October 1996. The issues raised in this appeal relate to the Tribunal's treatment, in the circumstances of this case, of the question of internal flight (or internal relocation, as it is variously called) in the context of the appellant's claim for asylum.

[2] The Special Adjudicator made a number of findings in fact which were not subsequently disputed. From them we take the following narrative. The appellant, who was born on 6 July 1974, is a citizen of India. He is a Sikh from the State of Punjab. While resident there he supported a campaign for an independent Sikh State of Khalistan. He became a supporter, and then a member, of a Sikh militant group called Babbar Khalsa. The assassination of Beant Singh, the Chief Minister of Punjab, in August 1995, was attributed to this group. The appellant provided food and shelter for members of Babbar Khalsa, but did not take part in violent activities. He came to the attention of the police because of his involvement with this group. He was arrested twice, once in 1994 and once in 1995. On each occasion he was beaten whilst in police custody. On the second occasion he was released after payment of a bribe. Thereafter he remained in hiding until he left India in late 1995.

[3] The appellant seems to have left India by air from Delhi. After travelling through several other countries, he entered the United Kingdom clandestinely. On 22 January 1995 he was apprehended at Ramsgate. He was served with illegal entry papers and detained. On 23 November 1995 he was interviewed and made a claim for asylum. This was refused by the respondent in a letter dated 20 December 1995. On 28 December 1995 the appellant was served with directions for his removal to India. He appealed against these directions. The appeal was first heard before a Special Adjudicator on 22 March 1996 and was dismissed in a determination dated 18 April 1996. A subsequent appeal to the Tribunal was allowed and the matter was remitted for a hearing de novo before a different Special Adjudicator. The hearing took place on 11 October 1996 and the Special Adjudicator's determination dated 30 October 1996 was delivered on 1 November 1996.

[4] Before we go further into the Special Adjudicator's determination, and the subsequent determination of the Tribunal, we should summarise the legal context in which these determinations were made. Since, by the conclusion of the hearing before us, counsel were agreed about this, our summary can be quite brief. The relevant statute was the Asylum and Immigration Appeals Act 1993. This was repealed by the Immigration and Asylum Act 1999 with effect from 2 October 2000, except in relation to events which took place before that date. So for present purposes it is to the 1993 Act alone that reference requires to be made. By section 1 it provided that the expression "claim for asylum" meant a claim 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) 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 were reflected in provisions of, inter alia, the 1993 Act and the Asylum Appeals (Procedure) Rules 1996, S.I. 1996/2070 (now superseded by the Immigration and Asylum (Procedure) Rules 2000), which we need not repeat.

[5] The interpretation and application of these provisions have been variously considered. In R. v. Secretary of State for the Home Department, ex p. Sivakumaran [1988] AC 958 the House of Lords held inter alia that whether the 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 the applicant 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. We refer in particular to the speeches of Lord Keith of Kinkel at p. 994F and Lord Goff of Chieveley at p. 1000F-G. This decision therefore established that the burden of proving entitlement to refugee status rests on the applicant, and that the standard of proof is that there is a reasonable degree of likelihood of persecution for a Convention reason.

[6] The question of the alternative of internal flight or internal relocation (to use but two of the phrases which have gained currency) arises from the fact that in some, though by no means all, cases a person who fears persecution for a Convention reason in one part of the country of his nationality may be able to seek refuge without fear of persecution in another part of that country, in which case he may not be entitled to refugee status in another country. This is recognised in the U.N.H.C.R. Handbook on Procedures and Criteria for Determining Refugee Status, published in 1979 by the Office of the United Nations High Commissioner for Refugees, which is regarded as authoritative. In a passage discussing the phrase "is outside the country of his nationality" in Article 1A(2) of the Convention, the U.N.H.C.R. handbook states at paragraph 91:

Reference may also be made to the Statement of Changes in Immigration Rules (H.C. 395) laid before Parliament on 23 May 1994, paragraph 343 of which is in these terms:

[7] The question whether it would be reasonable to expect a refugee to resort to the internal flight alternative was considered by the Court of Appeal in R. v. Secretary of State for the Home Department, ex p. Robinson [1998] QB 929, in which it was held that the test to be applied was whether it was unduly harsh to expect the applicant who was being persecuted in one part of his country to move to another less hostile part of the country before seeking refugee status abroad.

[8] The case which was most fully discussed before us was Karanakaran v. Secretary of State for the Home Department [2000] Imm AR 271. In this, the Court of Appeal had to consider the proper approach for determining whether internal relocation was a legitimate alternative to asylum for a person who otherwise ranked as a refugee under the Convention, and in particular whether any question arose on the burden or standard of proof. The court approved the decision of the Immigration Appeal Tribunal in Kaja v. Secretary of State for the Home Department [1995] Imm AR 1. As Brooke L.J. explained at p. 282, what the Tribunal in Kaja decided

Later in his judgment, at pp. 293-4, having considered decisions of the courts in various jurisdictions, in particular in Australia, Brooke L.J. said that the approach in fact recommended by the majority of the Immigration Appeal Tribunal in Kaja, as much more fully explained in the Australian cases, was the approach which should be adopted at each of the stages of the assessment process. He went on to say:

Further down on p. 294 Brooke L.J. said that he accepted a submission that when dealing with questions of internal protection, the decision-maker should simply ask:

"Would it be unduly harsh to expect the applicant to settle there? In answering this question it may have to take into account the cumulative effect of a whole range of disparate considerations, in respect of some of which it may be satisfied that they probably did occur (or are occurring), while in respect of others it may only think that there is a serious possibility that what the applicant and/or his/her witnesses is saying is correct."

[9] The second judgment was delivered by Robert Walker L.J., who said that he agreed with the judgments of both Brooke and Sedley L.JJ. The latter said at p. 299:

He went on to say, also at p. 299, that ability to return is not literal or absolute but a question of what it is reasonable to expect of a particular applicant in particular circumstances, and that what is reasonable in this field is best tested by asking whether return for relocation would be unduly harsh. Hence, among other things, the potential importance of the expert evidence in the case. After further extensive discussion of the issues, he said at p. 304 that he would put his own view, in summary, as follows:

Finally, at p. 305, Sedley L.J. said:

[10] The decision of the Court of Appeal in Karanakaran was, as we said in the Opinion of the Court delivered by the Lord President on 12 July 2000, one which had clearly been considered with the greatest care and was explicitly intended to provide guidance for decision-makers. During the first stage of the hearing before us, which preceded that Opinion, it became apparent that there was room for discussion about the meaning and effect of the Court of Appeal's decision, particularly when regard was had to the last paragraph of Sedley L.J.'s judgment. At one point, indeed, it appeared that counsel for the respondent was minded to advance a submission contradictory of that advanced by counsel for the Home Secretary in Karanakaran. We accordingly continued the hearing of the appeal to enable counsel to consider their position; the reasons are more fully explained in our previous Opinion. In the event, when the hearing was in due course resumed, counsel were agreed on the interpretation to be placed on the decision in Karanakaran. As counsel for the respondent put it, it was agreed that the question of internal flight was part of a single composite question of proof of the criteria for entitlement to refugee status, and did not require a different standard of proof. In further discussion, however, it was accepted on both sides of the Bar that, although what had to be considered was a single composite question, it could be broken down into a series of related questions, in respect of which the burden and standard of proof were the same. In practice, the question of internal flight would only require to be addressed if it were put in issue by the respondent; but, once it was put in issue, it would form part of the burden of proof on the applicant. This is consistent with the Michigan Guidelines on the Internal Protection Alternative, agreed to at the First Colloquium on Challenges in International Refugee Law at the University of Michigan Law School in April 1999, to which reference was made by counsel for the appellant. Since this was the subject of agreement between counsel, on which we are content to proceed for present purposes, it is not necessary for us to express a view as to how a possible inconsistency between the last paragraph of Sedley L.J.'s judgment and the remainder of his judgment and that of Brooke L.J. may be resolved. This agreement between counsel meant that for our purposes the relevant legal principles are not in dispute.

[11] In his determination the Special Adjudicator reached two main conclusions. First, he was satisfied that there was a reasonable likelihood that, if the appellant were to return to Punjab, he would be persecuted by the authorities because of his political opinion, as a supporter of an independent Khalistan. He considered documentary evidence about the prevailing situation in Punjab. He attached considerable weight to the reports of the United States Department of State, in particular one for 1995. These led him to find that there had been abuses of human rights by the police, but that these incidents were much less widespread at the time of the hearing before him than they were reported to have been a few years earlier, and that when these incidents were reported, they were more likely to be investigated by the proper authorities than was formerly the case. He also found that the level of violence in Punjab by 1995 had diminished considerably by comparison with the early 1990's. Having regard to the appellant's own evidence about his involvement with Babbar Khalsa, the Special Adjudicator was satisfied that as a known supporter of a Sikh militant group he would be likely to be arrested if he returned to Punjab, and that there was a strong possibility that the policy would again mistreat him if he were in their custody.

[12] Secondly, however, the Special Adjudicator was not satisfied that the Punjab police would pursue the appellant in another Indian State. He said that the evidence did not suggest that Sikhs faced difficulties in other Indian States. In reaching this conclusion the Special Adjudicator referred to a passage in the determination of the Tribunal in the case of Charanjit Singh (No. 13375) where a sentence from a report by a Patricia Gossman was quoted. The Special Adjudicator said that this statement did not appear to him to say that Sikhs in other parts of India are at risk of persecution unless they return to Punjab. Accordingly, he was satisfied that the appellant could have sought refuge in another Indian State. He said that the appellant was a young man with no dependants and that he was not satisfied that it would not have been reasonable to expect him to seek refuge in this way. Accordingly he was not satisfied that the appellant was a refugee in need of international protection and his appeal therefore failed.

[13] The appellant appealed to the Tribunal, with leave of the Tribunal, against the Special Adjudicator's determination. At the hearing of the appeal the appellant was present, so that the Tribunal were able to form an impression of his appearance. Before the Tribunal the sole issue was the question of internal flight. The respondent did not seek to challenge the Special Adjudicator's finding that, if the appellant were to return to Punjab, there was a reasonable likelihood that he would be persecuted by the authorities because of his political opinion. The Tribunal required to consider the question of internal flight de novo on its merits.

[14] The evidential material upon which the appellant's representative principally relied in support of the appeal came from the following sources: (1) evidence given to and accepted by the Tribunal in the case of Charanjit Singh, in particular oral evidence given by a Dr. Rai and the above-mentioned passage from the report by Patricia Gossman; (2) the evidence before the European Court of Human Rights in Chahal v. United Kingdom (1996) 23 EHRR 413; (3) the United States Department of State India Country Report on Human Rights Practices for 1996, released on 31 January 1997; (4) a report entitled Amnesty International and India, dated March 1996; and (5) passages from a report by the Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa, dated 17 February 1997 and containing information from four specialists in the Punjab ("the Canadian report"), in particular statements therein by Gurinder Singh Mann and Ravi Nair. The appellant's representative submitted that this and some other evidential material demonstrated that the appellant would be at risk if he were to return to India. In their determination the Tribunal summarised the submissions of the parties' representatives about this evidential material. After considering the law, including the then recent decision of the Court of Appeal in Robinson, supra, the Tribunal gave the following reasons for their determination:

[15] We have quoted the foregoing passage in extenso because, once the parties had reached agreement about the legal context which we have already discussed, the appeal was directed solely to the adequacy of the reasons given by the Tribunal in this passage for making their determination. By interlocutor dated 17 November 1999 leave was granted to the appellant to appeal to this court. The scope of the appeal is determined by section 9(1) of the Asylum and Immigration Appeals Act 1993, which restricts it to any question of law material to the Tribunal's determination. Rule 2 of the Asylum Appeals (Procedure) Rules 1996 provided inter alia that

Under Rule 19 it was the duty of the Tribunal to record the decision on the appellant's appeal, and the reasons for it, and to send to every party to the appeal, not later than ten days after the conclusion of the hearing, written notice of the determination. Obviously, it is open to consideration whether the Tribunal's determination complied with these rules. Reference may appropriately be made to Wordie Property Co. Limited v. Secretary of State for Scotland 1984 S.L.T. 345, in which Lord President Emslie said, at p. 348, in relation to administrative decisions:

Reference may also appropriately be made to Singh v. Secretary of State for the Home Department 2000 S.C. 219, in which Lord Weir, delivering the Opinion of the Court, said at pp. 222H-223A that the basic duty of statutory tribunals to give reasons would be satisfied if the reasons came within the ambit of what was said in Wordie Property Co. Limited. The extent and adequacy of the reasons which were set out were bound to vary according to circumstances. Much would depend on the nature of the tribunal and any rules under which it was required to work, the scope of the issues which might be raised, the amount of evidential material involved and whether the decision was an administrative or judicial one. The court agreed with the view of Lord Penrose in Asif v. Secretary of State for the Home Department 1999 S.L.T. 890 at p. 894H, where he said that:

[16] The task which counsel for the appellant set himself was not an easy one. He expressly stated that there was nothing wrong with the formalities of the Tribunal's approach. He also accepted that the Tribunal might have been right in the decision they reached. His main complaint was that there was no indication of the reasons why the Tribunal rejected material relied upon by the appellant. They could only discard matters relied upon by him where they were satisfied that there was no doubt that these matters were not as claimed. There must be, he submitted, a "proper evidential and/or reasoned basis for doing so". He further submitted that the Tribunal did not apply the approach to the assessment of the evidential material required by Kaja and Karanakaran. No attempt was made to evaluate the material relied upon by the appellant and consider which of it, if any, should be rejected entirely, and why it should be rejected. They failed to consider whether, in light of the evidential material they left before them for consideration, there was a serious risk of persecution if the appellant were to be returned to India. They failed to give proper and adequate reasons for implicitly rejecting the evidential material relied upon by the appellant. Counsel invited us to allow the appeal and to remit the case to a differently constituted Tribunal for a fresh hearing of the appeal.

[17] For his part, counsel for the respondent accepted that if we were satisfied that the Tribunal's approach to the evidence was flawed, that amounted to an error in law which would entitle this court to interfere. He submitted, however, that the Tribunal did correctly evaluate the evidence before them and did give adequate and comprehensible reasons for their determination. As could be seen from the determination, the Tribunal had taken into account the submissions of both parties and the documents placed before them. They then attached more weight to certain items than to others. They attached most weight to the Canadian report. It was reasonable and logical to do this because it was the only report which dealt with the internal flight alternative, which was the only issue before the Tribunal.

[18] While we were taken through much of the evidential material which was before the Tribunal, we have not found it necessary to set it out in this Opinion, having regard to the very limited basis upon which counsel for the appellant attacked the Tribunal's determination. It is in our view clear, and was not ultimately disputed before us, that the Tribunal had correctly directed themselves as to the burden and standard of proof in respect of the internal flight issue. We are also satisfied that the Tribunal correctly identified and applied the proper approach to evidential material as set out in Kaja, and even with the benefit of hindsight given by the decision in Karanakaran, which was of course made after their determination, their approach in this regard cannot be seriously criticised. The evidential material itself was a hotchpotch. It seems that other Tribunals had reached differing conclusions on the same evidential material in broadly similar circumstances. Some of this evidential material took the form of the full texts of reports which were of more or less relevance to the issue of internal flight within India. Some of it took the form of statements, not only ambiguous in themselves, but removed from the context in which they were made. It was open to the Tribunal to place greatest reliance on passages in the Canadian report. Counsel for the appellant did not seek to suggest otherwise, so long as adequate reasons were given for any such preference. In our opinion these reasons are adequately stated in the passage which we have quoted from the determination. As the Tribunal pointed out, the Canadian report addressed specifically the question of internal flight alternatives for Sikh refugees from Punjab. The point may also be made that the Canadian report was the most recent item before the Tribunal. There was therefore a basis for the conclusion that there were many areas in India to which the appellant could reasonably return. The Tribunal appear to us to have given adequate reasons for preferring the evidential material which led them to this conclusion. As they went on to state, they carefully considered the submissions made by the parties' representatives and the documents to which reference had been made. The Tribunal also considered the question whether it would be unduly harsh to expect the appellant to move to a less hostile part of India before seeking refugee status in this country, and gave reasons, derived from the Canadian report, for doing so. They therefore gave sufficient reasons, in our opinion, for their conclusion that the appellant's home State of India could offer him adequate protection, that it would be reasonable for him to be returned there and that he had not demonstrated that it would not be reasonable for him to return to another part of India outwith Punjab. Having regard to the test laid down in Wordie Property Co. Limited, the determination of the Tribunal leaves no real and substantial doubt as to what the reasons for their decision were and as to the material considerations which they took into account. This being our opinion on the only live issue in the case, we shall refuse the appeal.