Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Qamar, Re appeal against a determination [2004] ScotCS 76 (16 March 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/76.html
Cite as: [2004] ScotCS 76

[New search] [Help]

Qamar, Re appeal against a determination [2004] ScotCS 76 (16 March 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Macfadyen

Lord Mackay of Drumadoon

XA149/02

OPINION OF THE COURT

delivered by LORD MARNOCH

in

APPEAL

under paragraph 24 of Schedule 4 to the Immigration and Asylum Act 1999

by

AMIR QAMAR (A.P.)

Applicant;

against

a determination of

THE IMMIGRATION APPEAL TRIBUNAL

Respondents:

_______

Act: Devlin; Drummond Miller

Alt: Lindsay; H.F. Macdiarmid

16 March 2004

[1] This is an appeal against a decision of the Immigration Appeal Tribunal in terms of which the Tribunal allowed an appeal by the Secretary of State for the Home Department against a determination of the adjudicator favourable to the applicant.

[2] The applicant (hereinafter referred to as the "appellant") originally applied for asylum but now appeals against the directions for his removal to Pakistan solely on the basis that, if so deported, there is a real risk that he will be arrested and subjected to treatment contrary to Article 3 of the European Convention on Human Rights. The appeal accordingly proceeds under and in virtue of section 65 of the Immigration and Asylum Act 1999.

[3] The adjudicator's conclusions and findings contain the following two passages:

"I consider that there is a reasonable degree of likelihood that the appellant is wanted in Pakistan in respect of the attempted murder of two persons which itself was a revenge attack ... I am satisfied that there are serious grounds for thinking that if he returned to Pakistan the appellant will face the risk of arrest and the subsequent risk of torture or other inhumane and degrading treatment whilst in the custody of the police."

[4] On the face of it these findings are conclusive in favour of the appellant and, so far as the risk of arrest is concerned, they appear to have been based on information given by the appellant, first, that he and a friend had shot two individuals and were thereafter "wanted" for attempted murder; second, that his friend had, as matter of fact, subsequently been arrested; third, that although he, the appellant, had escaped to a neighbouring village, his family had subsequently been harassed by the police; fourth, that there was actually in existence an outstanding warrant for the appellant's own arrest; and, lastly, that his membership of the SSP organisation made that arrest even more probable than would otherwise have been the case.

[5] In the foregoing circumstances it is somewhat remarkable that the Immigration Appeal Tribunal described the adjudicator as having "leapt" from the appellant's subjective fear of ill-treatment to the conclusion that there was a "reasonable likelihood" that the claimant would actually be arrested (and persecuted) "without any basis for doing so".

[6] In our opinion the adjudicator did not "leap" and, granted the appellant's credibility, had every reason for reaching the conclusion he did. The Appeal Tribunal took no issue with the adjudicator's assessment that, if imprisoned, the appellant might well experience an infringement of his human rights but, as regards the risk of arrest and imprisonment, it appears to have been influenced by the considerations that the appellant remained in Pakistan for ten months following the shootings and then left openly on his own passport. In our view, however, these two considerations cannot be regarded as in any way displacing the various other considerations relied on by the adjudicator and we further take the view that it was what in another context would be described as "Wednesbury unreasonable" so to regard them. It was conceded by Mr. Lindsay that on that hypothesis the Appeal Tribunal could be seen as having erred in law.

[7] For the foregoing reasons the present appeal will be allowed and the decision of the adjudicator restored. It is unnecessary to deal with the other grounds of appeal enumerated in the appeal document.

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010