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Cite as: [2004] ScotCS 121

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Rafiq, Re Determination Immigration Appeal Tribunal [2004] ScotCS 121 (30 April 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Macfadyen

Lord Wheatley

XA114/03

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

under Section 58(4)(b) and paragraph 23 of Schedule 4 of the Immigration and Asylum Act 1999

ANEES MOHAMMED RAFIQ

Applicant;

against

a determination of

THE IMMIGRATION APPEAL TRIBUNAL

Respondent:

_______

Act: Govier; Drummond Miller, W.S.

Alt: Drummond; Advocate General's Office

30 April 2004

[1] The appellant in this appeal, Anees Mohammed Rafiq, is a citizen of Pakistan who arrived in the United Kingdom on 30 January 2001 and applied for asylum on 11 February 2002. His application was refused. He appealed to an adjudicator in terms of sections 65 and 69 of Part IV of the Immigration and Asylum Act 1999 on the merits of that refusal and also on the ground that his removal from the United Kingdom would breach its obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. By a determination dated 2 September 2002, an adjudicator refused the appeal in terms of section 69 of the 1999 Act against the refusal of asylum, but allowed the appeal in terms of section 65 on the ground that the appellant's removal from the United Kingdom would place it in breach of its obligations under Article 3 of the Convention. That Article, of course, provides that: "No one shall be subjected to torture or inhuman or degrading treatment or punishment". The adjudicator's decision to allow the appeal under Article 3 of the Convention was appealed by the respondent, the Secretary of State for the Home Department, to the Immigration Appeal Tribunal, under paragraph 22(1) of Schedule 4 of the 1999 Act. They reached a determination, notified on 23 June 2003, which involved their allowing that appeal. The present proceedings are an appeal to this court against that determination.

[2] When the matter came before us today, we were informed that the respondent did not wish to maintain opposition to the appeal, which he had hitherto done. That position had been communicated to the court in a letter dated 30 March 2004. In response to our enquiry as to the reason for this change of position, we were informed that the respondent had reassessed his decision in relation to the matter in the light of fresh legal advice. In these circumstances, and also in the light of the submissions made in the appellant's written Note of Argument, which had previously been ordered by the court, we are now satisfied that it is proper to allow this appeal. However, in that context, it emerged at the hearing before us that there remains an issue between the parties concerning the appropriate disposal of this appeal. The position of the appellant, set out in a motion before this court, was that the appeal should be allowed, the decision of the Immigration Appeal Tribunal should be recalled and the decision of the adjudicator restored. However the position of the respondent was that, after the allowance of the appeal, the case should be remitted to a freshly constituted Immigration Appeal Tribunal to be heard de novo. That position reflects that taken up in the letter of 30 March 2004. In these circumstances it has become necessary for us to consider whether the decision of the adjudicator was indeed flawed, as contended for by the respondent.

[3] It was argued by Miss Drummond, on behalf of the respondent, that the adjudicator's decision was flawed in two particular respects. First, it was contended that he had not properly considered the applicant's claim that a return by him to Pakistan would result in a breach of his rights under Article 3. Essentially it was said that the adjudicator had not made reference to Article 3 until he did so in paragraph 16 of his decision. In that paragraph the adjudicator states:

"In accordance with the findings made above, I do consider that the removal of the appellant from the United Kingdom would place this country in breach of its obligations under the European Convention on Human Rights".

Plainly, in the context of this case, that is a reference to the appellant's case under Article 3. However, prior to that passage in the decision, no specific reference had been made to Article 3 of the Convention. Furthermore, it was said that this was of some importance against a background that there was authority to suggest that a general threat which might affect all persons on arriving in a particular country was not a sufficient basis to invoke Article 3 in relation to a particular individual.

[4] Secondly, it was contended that there were certain issues relating to the scope of the offences with which the appellant might be charged, were he to return to Pakistan. In particular, there was an issue in relation to whether the appellant or his wife might have been responsible for certain particular offences which had been alleged against him.

[5] In reply to these submissions, Mr Govier, on behalf of the appellant, submitted that the adjudicator's decision was not flawed. He argued that, as regards the point relating to Article 3 of the Convention, paragraphs 12 and 13 included findings of fact which related specifically to the risks which the appellant would face were he required to return to Pakistan. Furthermore, it was submitted that the adjudicator had adopted a proper criterion as regards risk in relation to the case under Article 3. As regards that matter, questions were raised as to what was the appropriate criterion. In that connection we were referred to the case of Secretary of State for the Home Department v. Kacaj (Immigration Appeal Tribunal 19 July 2001) in which these matters were the subject of consideration. While a variety of expressions had been employed to define the issue of what risk there must be in relation to breach of the Convention, the words "real risk" figure extensively in these expressions. Mr Govier contended that the adjudicator had followed the appropriate criterion in this respect. He had used expressions such as the "considerable risk" and "substantial risk" of maltreatment.

[6] In relation to the other criticisms made of the adjudicator's decision, it was pointed out to us that the adjudicator had not had a contradictor appearing before him, which circumstance might have resulted in his adoption of the somewhat shorthand approach evident in the expression of his decision. As regards the matter raised concerning the scope of the offences with which the appellant might be charged, were he to return to Pakistan, it was argued that that particular matter did not have any bearing upon the adjudicator's assessment of the risks of maltreatment which he considered the appellant would be likely to face.

[7] In the light of these submissions, we have come to conclude that there are no real grounds for criticism of the decision of the adjudicator in relation to the case made under Article 3 of the Convention. He appears to us, in paragraph 8 of his decision, to have selected an appropriate criterion for the assessment of the case under Article 3 and, in paragraphs 12 and 13, to have found a factual basis to support the decision which he made to sustain the appellant's plea under that Article.

[8] As regards the other criticism directed against his decision, we are not persuaded that it possesses substance. We do not think that the issue involved, or the focus of it, undermines the adjudicator's assessment of the risk which the appellant would have faced, were he to have returned to Pakistan, in the context of the findings in fact made.

[9] In all of these circumstances we have concluded that there is no reason for us, having allowed the appeal, to remit the matter to the Immigration Appeal Tribunal for further consideration. Accordingly we shall allow the appeal, recall the determination of the Immigration Appeal Tribunal, with the result that the decision of the adjudicator will stand.