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Cite as: [2005] ScotCS CSIH_37, [2005] CSIH 37

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DD v. The Secretary Of State For The Home Department [2005] ScotCS CSIH_37 (19 April 2005)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Nimmo Smith

Lady Paton

[2005CSIH37]

OPINION OF THE COURT

delivered by LADY PATON

APPEAL

Appellant;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

_______

Appellant: Bovey, Q.C., Frain-Bell, Advocate; Anderson Strathern (for Quinn, Martin and Langan, Solicitors, Glasgow)

Respondent: Lindsay, Advocate; Advocate General's Office

19 April 2005

Asylum: internal relocation
[1] The appellant is a citizen of Pakistan. He was born on 22 July 1955. He is married with two sons. The appellant and his family entered the United Kingdom as visitors in October 2000. He applied for asylum for himself and his family, claiming persecution by reason of his religion, namely Christianity.

[2] The appellant fell ill and was unable to attend his asylum interview. Thereafter, by letter dated 28 December 2000, the Secretary of State for the Home Department (the respondent) refused the application for asylum. The appellant appealed to an adjudicator.

[3] The adjudicator heard oral evidence from the appellant and his wife, and considered documentary evidence including the Home Office Pakistan Country Assessment (CIPU report) of October 2001, and an address by the Bishop of Peshawar dated 17 June 1998 entitled "Being a Christian in Pakistan" describing the serious difficulties suffered by Christians in Pakistan.

[4] In their oral evidence, the appellant and his wife spoke of persecution suffered as a result of the appellant's religion. Reference was made to events in 1984, 1985, 1992, 1998, and 1999, occurring in various parts of Pakistan including Gujranwala, Lahore and Rawalpindi. The last and most serious incident involved the rape of the appellant's wife, followed by threats and blackmail. The appellant and his wife gave evidence that the cause of each incident was the appellant's religion.

[5] In his determination promulgated on 8 February 2002, the adjudicator accepted the documentary evidence concerning difficulties suffered by Christians in Pakistan. However he noted inconsistencies in the accounts of rape and blackmail given by the appellant and his wife. He did not believe those accounts, and refused the appeal.

[6] The appellant then appealed to the Immigration Appeal Tribunal (IAT). The appeal hearing was conducted by video-link with Glasgow. Although the issue of internal relocation had not been raised by either party, nor had any facts relating to that issue been investigated to any extent, the IAT raised the question with the appellant's solicitor at the end of his submissions as noted in paragraph 27 of their determination promulgated on 30 July 2002:

"27. In response to issues relating to a possible internal flight alternative for the appellants within Pakistan, Mr. McGowan [solicitor for the appellant] submitted that the appellants would have the same problems in any other part of Pakistan that they moved to and they were not able to escape these in the past. The appellant had moved before but had still encountered problems."

[7] The IAT ultimately dismissed the appeal. They gave their reasons in paragraphs 29 et seq. of their determination. They accepted that the adjudicator's findings in relation to the alleged rape were flawed. They accepted that there might be a risk of persecution or inhuman and degrading treatment were the appellant and his wife to return to Rawalpindi. However they considered that there was a possibility that the family could relocate to another district within Pakistan. In paragraphs 30 to 33 of their determination, the IAT noted:

"30. In respect of the possible relocation or internal flight alternative we note that some ten years ago the appellants did move to Rawalpindi, possibly to avoid discrimination and harassment from local Muslim fundamentalists. However Pakistan is a large country and there are some 3 million Christians dispersed throughout. The appellant is clearly a capable and mature individual with good connections. From an assessment of all the country information presented, we consider that they would be able to relocate to other sites within Pakistan and access meaningful protection from the Pakistani authorities. We do not consider that it would be unduly harsh or unreasonable to expect the appellant and his family to do so.

31. In reaching this conclusion we do note from the country of origin information that there is some level of continued harassment of Christians within Pakistan, however this appears to rise to the level of persecution in only very rare and occasional instances. We consider that the level of possible discrimination or harassment in other parts of Pakistan would not be at a level that would force the appellants to return to Rawalpindi where it is accepted there may be a real risk of persecution by the same fundamentalists in the appellant's home district of that city.

32. In this situation, given that an internal flight alternative is available, and, based on the country evidence and the subjective factors relating to this family, it would not be unreasonable or unduly harsh to expect them to undertake that relocation, this appellant is not a refugee within the meaning of article 1A(2) of the Refugee Convention. The appeal is therefore dismissed. Following the findings of the Tribunal in Kacaj we consider that there are no substantial reasons for concluding that there would be a real risk that this appellant and his family would be subjected to ill-treatment that would invoke a breach of Articles 2 or 3 of the ECHR.

Decision

33. The appeal is dismissed."

Appeal to the Court of Session
[8] The IAT refused leave to appeal further. The appellant then sought leave of this court to pursue the appeal. As that application was bound up with the merits of the appeal, we heard counsel on both questions. It was submitted on behalf of the appellant inter alia that the IAT had found the adjudicator's determination flawed so far as relating to the allegation of rape. The IAT's own determination was flawed as outlined below. Accordingly both determinations should be quashed, and the case remitted to a fresh tribunal.

[9] Senior counsel for the appellant submitted inter alia that the IAT had failed properly to explore the question of internal relocation with the parties. The issue had been raised by the IAT at the last minute in the appeal hearing. Insufficient inquiry had been made into the appellant's status and practice as a Christian in Pakistan. Productions such as number 6/10 of process (page 5) suggested that the appellant was a high-profile Christian, who had been a founder and an active member of the governing boards of Christian bodies, and who was well-known to extremists. Furthermore, no account had been taken of the fact that the appellant had been convicted of selling food during Ramadan, and had been barred from public service. That put him at a serious economic disadvantage in Pakistan. Had the question of internal relocation been explored to any extent with the parties, those points would have been made on his behalf.

[10] In the course of submissions, reference was made to Iftikhar Ahmed v Secretary of State for the Home Department [2000] INLR 1 (concerning the difficulties suffered by Ahmadis in Pakistan); the address by the Bishop of Peshawar; UNHCR guidelines dated 23 July 2003; "Asylum Law and Practice" by Symes and Jorrow (2003) at pages 220-223; and the CIPU report of 2001, in particular paragraph 5.4.38 which was in the following terms:

"Internal Flight (Refuge within Pakistan)

5.4.38 Groups with a limited internal flight alternative are women and mixed (inter-religious and inter-caste) couples. Many flee from rural areas to the cities if their economic circumstances permit, but even there they may not be safe from their families or religious extremists. For Ahmadis and Christians (including converts) there is also a high likelihood that an internal flight alternative may also be ruled out. Political activists however usually do have the option of moving to another part of the country, unless they are of high prominence".

[11] Senior counsel for the appellant began to explore in detail the factual aspects of the internal flight question; but in the event he accepted a suggestion from the court that he could rest his case on the following propositions:

(i) There was a body of evidence suggesting that the appellant was at high risk of being persecuted in Pakistan as a Christian. There was also a body of evidence (including evidence from an authoritative source, the CIPU report) indicating that internal flight within Pakistan was not an easy option. In those circumstances, the IAT, if proposing to reach the broad conclusion recorded in paragraph 30 of their determination, had to give clear reasons for that conclusion.

(ii) In any event, as the IAT had been of the view that internal relocation was material (although neither party had raised the matter), and as the IAT had introduced the question late in the day, the IAT should have allowed parties the opportunity to deal with the point in greater detail. In the present case, the brief reasoning contained in paragraph 30 was all there was on the matter.

[12] After further discussion, counsel for the respondent intimated that, having considered those propositions and having taken instructions, he wished to withdraw opposition to the appeal.

Conclusion
[13] In the circumstances of this particular case, there was a body of evidence suggesting that the appellant was at high risk of being persecuted in Pakistan because he was a Christian. There was also a body of evidence (including evidence from an authoritative source, the CIPU report) indicating that internal flight within Pakistan was not an easy option. In those circumstances, bearing in mind the seriousness of the issues and the potential consequences for the appellant and his family, we are satisfied that it was necessary for the IAT to explain why they preferred one body of evidence to another, and to specify why they reached the conclusion set out in paragraph 30 of their determination. In our view, they have failed to do so. Furthermore it appears to us that the IAT, having raised the issue of internal relocation for the first time towards the end of the appeal hearing, had a duty to explore that issue in greater detail with both parties before they could properly reach a view on the matter.

[14] In the result we shall grant leave to appeal and allow the appeal, quash the determinations of the adjudicator and the IAT, and remit the case to a differently constituted panel of the tribunal (now known as the Asylum and Immigration Tribunal) to proceed as accords, all under reference to the Nationality, Immigration and Asylum Act 2002, section 103B(4)(c) as substituted by section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and brought into force on 4 April 2005 by commencement order S.I. 2005/565.