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Cite as: [2005] CSIH 45, 2005 1 SC 509, [2005] ScotCS CSIH_45

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Hussein v. The Secretary Of State For The Home Department [2005] ScotCS CSIH_45 (10 June 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Hamilton

Lady Paton

Sir David Edward, Q.C.

[2005CSIH45]

XA30/03

OPINION OF THE COURT

delivered by TEMPORARY JUDGE SIR DAVID EDWARD, Q.C.

APPEAL

under Paragraph 23(1) and (2) of Schedule 4 to the Immigration and Asylum Act 1999

ARSHID HUSSEIN

Appellant;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

_______

Act: P.J.D. Simpson; Drummond Miller (for McAuley, McCarthy & Co., Glasgow)

Alt: Lindsay; Advocate General's Office

10 June 2005

[1] On 6 August 2001, the Secretary of State issued a decision refusing the appellant asylum in the United Kingdom. The appellant appealed to the immigration adjudicator ("the adjudicator"), sitting at Glasgow, who dismissed his appeal. The appellant appealed to the Immigration Appeal Tribunal ("the Tribunal") who refused the appeal. The appellant obtained leave to appeal to this Court, and his appeal was argued before us.

[2] The adjudicator made a number of findings adverse to the appellant's credibility and the reliability of documents produced by him. These were the subject of lengthy grounds of appeal before the Tribunal. However, with the agreement of parties, the Tribunal approached the appeal on the basis of taking the appellant's claims at their highest: if the appellant could not succeed on that basis, there was no necessity to analyse the other grounds of appeal.

[3] The Tribunal concluded that, even taking the appellant's case at its highest, he could not succeed in a claim for asylum on grounds of insufficient protection in his state of origin (Pakistan). Consequently, the Tribunal did not consider whether, in other respects, the adjudicator's decision was justified.

[4] In these circumstances, the appeal to this court being on a point of law only, the question for us is whether the Tribunal erred in law in concluding that, taking the appellant's claims at their highest, the appellant could not succeed in a claim for asylum on grounds of insufficient protection. It was agreed between counsel that, if we were to find that the Tribunal erred in law, the appropriate course would be to remit to the new Asylum and Immigration Tribunal to proceed as accords. (See 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 by commencement order S.I.2005/565.)

[5] The leading authority on the question of sufficiency of protection is Horvath v Home Secretary [2001] 1 AC 489. Horvath was a Roma of Slovak nationality who claimed asylum in the United Kingdom on the ground, amongst others, that he feared persecution in Slovakia by skinheads, against whom the Slovak police failed to provide adequate protection for Roma. The issue was not whether Horvath feared persecution by the Slovak authorities, but whether those authorities provided adequate protection against persecution by "non-state actors".

[6] Counsel for the respondent in the present case accepted that the test to be applied in such circumstances had been correctly stated by Lord Clyde (at page 510H):

"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the [Geneva] Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.

It seems to me that the formulation presented by Stuart-Smith, L.J. [in the court below] may well serve as a useful description of what is intended:

'In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders.'

And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. 'It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy'. The formulation does not claim to be exhaustive or comprehensive, but it seems to me to give helpful guidance."

[7] Put shortly, it is not enough to point to corruption, inefficiency or incompetence on the part of individual members of the police, prosecution or justice system. There must be evidence of systemic or 'institutionalised' unwillingness to afford protection to the victims of persecution by non-state actors. On the other hand, each case must be judged on its own facts. As Laws, L.J., remarked in Mishto v Home Secretary [2003] EWCA Civ 1978 (at paragraph 24): "Every practitioner in this field who brings an objective judgment to his task knows that general in-country conditions may sometimes be malleable when it comes to a particular set of facts".

[8] In the present case, the Tribunal proceeded on the basis of the following facts. The appellant is a Shia and, more particularly, a follower of the Imamia Organisation ("IO") which is opposed by various Sunni groups. Whilst at university the appellant became IO social secretary. He left university at the age of 27 with a law degree and began practising as a lawyer. For two years he was secretary general of IO for his region, and was in charge of training members and resolving any problems that arose. He then opened his own legal practice, and continued to work for IO, doing free legal work and making plans to build a mosque in his village. IO workers were threatened, threatening telephone calls were made, and stones were thrown at their houses.

[9] On 27 November 2000, 2 or 3 people fired shots at the appellant's house. The firing went on for about 10 to 15 minutes. He knew that the shooting had been carried out by one of the opposing Sunni groups, which had a head office nearby. The matter was reported to the police but they did nothing. The appellant and his family, having nowhere else to go, continued to live in the village until his wife's sister invited them to London for a visit to get away from the situation. While in London, the appellant received a telephone call from his parents saying that it was not safe for them to return. Sunni groups were still looking for him and were making threats to kill him if he returned. In these circumstances, he claimed asylum in the United Kingdom.

[10] The Tribunal then quoted the adjudicator's summary of the country evidence, according to which the Shia minority in Pakistan are generally protected by the government, are well integrated into Pakistani society and are not systematically discriminated against. But there have been outbreaks of sectarian violence which the government has taken steps to curb. However,

"Police corruption is reported to be widespread and in general the police continue to commit serious abuses with impunity despite efforts to redress police excesses. Police professionalism is low. They accept money for registering cases on false charges and may torture innocent citizens."

[11] It is on the issue of police corruption that the point in the present appeal arises. At interview (as quoted by the adjudicator) the appellant had stated that he did not press charges against those who had shot at his house because "what normally happened was that they start harassing the complainant and demand bribes". In his Application for Leave to Appeal to the Tribunal, the appellant said that he "not only reported the shooting to the police, the Deputy Commissioner and then again one week later, he was asked for payment of a bribe which he declined to pay. The police refused to take any further action." The demand for a bribe was also spoken to in a statement from his wife, although it is not clear whether this was hearsay derived from the appellant himself.

[12] Counsel for the respondent accepted that the issue of bribery was properly before the Tribunal and, further, that it did not matter, for the purposes of the appeal, whether the appellant was actually asked for a bribe or simply gave up because he knew he would be asked for one.

[13] The approach of the Tribunal to the law is set out in paragraph 14 of the Determination. Having summarised the submissions of the appellant's representative which (at least as summarised) made no reference to bribery, the Tribunal said:

"That entails a consideration of what is required to satisfy the protection test under the Horvath doctrine. It does not require that there should be a guarantee of safety to an individual in the state. No state can hope to provide that. It requires essentially, simply that there be an effective criminal system, operative within the state, which will usually result in criminal process being taken against those who break the law and in respect of which the state does not operate on a discriminatory basis against particular groups of which the applicant for asylum forms part."

In paragraph 15, the Tribunal said:

"The background evidence as summarised by the adjudicator supports the clear conclusion that there is no discriminatory approach on the part of the state."

[14] It appears from these and other passages that the Tribunal approached the case on the basis that the relevant questions were (i) whether Pakistan had an "effective criminal system" and (ii) whether there was discrimination against Shias or, more particularly members of IO. Notwithstanding the quotation (above) from the country evidence about police corruption, the Determination contains no reference to the matter of bribery.

[15] We have come to the conclusion, albeit with considerable hesitation, that the Tribunal's failure to deal with the issue of bribery constitutes an error of law. Horvath makes clear that "adequate protection" requires not just the existence of an effective criminal system, but a willingness to operate it, including a willingness on the part of the police to take the necessary first step of investigation. A system in which the police, as a matter of general practice, require a bribe in order to investigate a serious incident of shooting would not meet this test.

[16] It is, nevertheless, important to distinguish between systematic bribery as a pre-condition of setting the criminal process in motion and a demand for a bribe by an individual police officer. So it would be necessary in this case to consider whether, in the first place, the appellant's allegation of bribery is reliable and then, if so, whether that demonstrates a failure in the system of criminal justice such that the appellant can be said to be deprived of adequate protection in Pakistan.

[17] In these circumstances, the appropriate course is to allow the appeal and remit to the Asylum and Immigration Tribunal. Given the intervening changes in the system for dealing with asylum and immigration cases, it will be for that Tribunal to decide how best to deal with this case, bearing in mind that, on the approach it adopted, the Immigration Appeal Tribunal did not deal with the numerous criticisms of the adjudicator's decision set out in the Application for Leave to Appeal.