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Butt, Re Application for Judicial Review [2005] ScotCS CSOH_107 (08 August 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 107 |
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P874/03
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OPINION OF LORD GLENNIE in the Petition of FARAH BUTT Petitioner; for Judicial Review of a decision by (1) The Immigration Appeal Tribunal refusing to grant leave to appeal from the decision of an Adjudicator dated 12 May 2003 and (2) by an Adjudicator promulgated on 18 March to the Petitioner
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Petitioner: Melvin Farr; Drummond Miller, W.S.
Respondents: Andrew Stewart; Office of the Solicitor to the Advocate General
8 August 2005
[1] The petitioner is a national of Pakistan. She was born on 3 May 1979. On 23 August 2001, she applied for asylum after entering the United Kingdom illegally. That claim was refused by the Secretary of State in a letter dated 17 October 2001. On 4 March 2002 she was serviced with a Notice of Decision to Issue Removal Directions to an Illegal Entrant, giving directions for her removal to Pakistan. She gave notice of appeal on 27 March 2002 against those decisions. That appeal was heard by an adjudicator on 6 March 2003. He promulgated his decision on 18 March 2003. So far as is material to this application, the adjudicator dismissed the petitioner's appeal both on asylum and human rights grounds. The petitioner sought permission to appeal to the Immigration Appeal Tribunal. That application was refused by the Tribunal on 12 May 2003. [2] The petitioner's application for judicial review came before me for a first hearing on 29 June 2005, an earlier date fixed for the first hearing having proved ineffective. The petitioner was represented by Mr Melvin Farr. The respondent to the petition, the Secretary of State for the Home Department, was represented by Mr Stewart. As originally drafted, the petition sought declarator and reduction aimed at the adjudicator's decision on the appeal; and also reduction of the adjudicator's decision refusing leave to appeal to the Immigration Appeal Tribunal. At the hearing before me, I allowed the petition to be amended so as to substitute for all of that a claim for reduction of the decision of the Tribunal to refuse permission to appeal from the adjudicator. I also allowed the pleas-in-law to be substituted to give effect to this change. There was no opposition to this application to amend. At the same time, however, I was told that this amendment was "academic". It was explained to me that the appeal to the adjudicator had been under the provisions of the Immigration and Asylum Act 1999. That had been the governing legislation in force when the petition was intimated and served. Since then, however, that Act had been replaced by the Nationality, Immigration and Asylum Act 2002. In terms of that Act, it was appropriate simply to seek to reduce the decision of the Tribunal refusing permission to appeal. Hence the amendment. However, the 2002 Act had now been substantially amended by the Asylum and Immigration (Treatment of Claimants Etc.) Act 2004. Although the amended provisions do not apply to the present application, it was suggested that the appropriate course now, if I were in favour of the petitioners, would be to reduce both the decision of the Tribunal refusing permission to appeal and also the determination of the adjudicator refusing the appeal from the Secretary of State. Mr Stewart agreed that that would be the appropriate remedy if I were in favour of the petitioner. He pointed out that this was the approach taken very recently by Lord Brodie in the petitioner of Asifa Gafar (unreported, 24 June 2005) at paragraph [3]. I note that the same approach was taken recently in two other cases: Joyce Wani & others (unreported, 8 June 2005) and Sabe Zeghdaou (unreported, 12 July 2005). [3] I do not consider that that is the correct approach. Under the legislation before the 2004 Act, appeals from the Secretary of State had been to an adjudicator, with a further appeal, with permission, to the Immigration Appeal Tribunal. The Court's power to intervene in this process was by review of a decision of the Tribunal refusing permission to appeal from the adjudicator. Under the pre-2002 legislation, this was by way of judicial review. Under the 2002 Act, it was by a process known as "statutory review" conducted on paper. The review by the Court at this stage was, of course, quite separate from any appeal to the Court from the decision of the Tribunal arrived at after a substantive hearing. The amendments introduced by the 2004 Act were designed, inter alia, to bring in a unified appeal process, so that appeals from the Secretary of State go directly to the Tribunal, now called the Asylum and Immigration Tribunal. There is no internal appeal from the decision of that Tribunal. However, the Court may order the Tribunal to review its own decision. This is dealt with by a paper application; and is again quite separate from an appeal to the Court from the substantive decision of the Tribunal. The Asylum and Immigration (Treatment of Claimants Etc.) Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005 introduced transitional provisions for cases already current when the Act came into force (which, so far as material for present purposes, was on 4 April 2005). Most of that Order is taken up with transitional arrangements in respect of cases started under the regime of the 2002 Act. However, Regulation 9 sets out further transitional provisions in relation to appeals under the "old appeals provisions", that is to say the provisions of the various Immigration, or Asylum and Immigration, Acts from 1971 to 1999. Regulation 9(4) deals with the case where an application for permission to appeal to the Tribunal under the old appeals provisions is pending before commencement of the 2004 Act. It was accepted by counsel before me that if I were to reduce the decision of the Tribunal refusing permission to appeal, as the prayer in the amended petition invites me to do, the case would then become one where the application for permission to appeal to the Tribunal was pending - and, because of the retroactive effect of reduction, was pending immediately before commencement of the 2004 Act. Regulation 9(4) directs one, in that situation, to Regulation 6. In terms of Regulation 6(1), where an application for permission to appeal to the Tribunal against an adjudicator's decision is pending immediately before commencement [of the 2004 Act], it is to be treated after commencement as an application under Section 103A(1) of the 2002 Act as amended for an order requiring the Asylum and Immigration Tribunal to reconsider the adjudicator's decision on the appeal. That application, in terms of the new Section 103A, is, as I have said, a paper application. It follows that, logically, if I were to reduce the decision of the Tribunal refusing permission to appeal, the petitioner would then have to make a paper application to the Court requiring the new Asylum and Immigration Tribunal to reconsider the adjudicator's decision. That paper application would be precisely the same as the application before me by way of judicial review. In those circumstances, it seems to me that the appropriate course, if I am in favour of the petitioner, is not only to reduce the decision of the Asylum and Immigration Tribunal refusing permission to appeal but also to treat the petition for judicial review as a paper application for the purpose of the new Section 103A of the 2002 Act and make an order requiring the new Asylum and Immigration Tribunal to reconsider the adjudicator's decision on the appeal. What I cannot do, in my opinion, is go further and reduce the adjudicator's decision. Nor would any purpose be served by my doing so. It was suggested in Asifa Gafar that this course would "clear the way for the petitioner to present a fresh appeal to the new unitary body". However, there is no need for this since the transitional provisions provide a route by which the new unitary body, the Asylum and Immigration Tribunal, is required to reconsider the adjudicator's decision. It would, in my opinion, be usurping the jurisdiction of that Tribunal if the Court were to make any order in respect of the adjudicator's decision. A final decision as to whether to uphold or set aside the adjudicator's decision is specifically given to the Asylum and Immigration Tribunal by the 2004 Act and the transitional provisions to which I have referred, subject, of course, to any appeal to the Inner House from the decision of that Tribunal. [4] To proceed in this way does not cause any prejudice to the petitioner. Under the provisions in force before 2002, leave to appeal from the adjudicator to the Tribunal would be granted only where the Tribunal was satisfied that the appeal would have "a real prospect of success" or there was some other compelling reason why the appeal should be heard: see Rule 18(7) of the Immigration and Asylum Appeals (Procedure) Rules 2000. The 2002 Act restricted the right of appeal to the Tribunal to an appeal on a point of law: see Section 101. The Court could review the Tribunal's decision to grant or refuse permission to appeal only "on the ground that the Tribunal made an error of law": Section 101(2). Similarly, under the new unified appeal process brought in by the 2004 Act, the power of the Court to make an order requiring the new Tribunal to reconsider its decision on the appeal from the Secretary of State may be made only if the Court thinks "that the Tribunal may have made an error of law": see Section 103A(2) of the 2002 Act as inserted by Section 26 of the 2004 Act. But the transitional provisions, to which I have already referred, make it clear that where one is dealing with an application for permission to appeal under the old appeals provisions which is pending immediately before commencement, then "if, under the old appeals provisions, the appeal application was not restricted to the ground that the adjudicator made an error of law, then it shall not be so restricted following commencement": see Article 9(4)(b) of the 2005 Order. In other words, under this part of the transitional provisions, the new Tribunal is required to reconsider the adjudicator's decision on the appeal if it thinks that the appeal would have a real prospect of success or there is some other complaining reason why the appeal should be heard; and the Court can order it to do so on the same grounds. I propose to consider the petition on that basis. [5] In paragraph 7 of his Determination, the adjudicator explained the petitioner's claim to asylum in this way:"7. The basis of the appellant's claim to asylum is that as a female victim of domestic violence who had been forced to leave the marital home, she faced persecution on return from her relatives, against which the authorities were unable or unwilling to protect her."
That is accepted as a correct summary of her application. The petitioner presented her claim both under the 1951 Refugee Convention and under the European Convention of Human Rights. In paragraph 18 of his Determination, the adjudicator said:
"18 The burden lies upon the appellant to show that there is a real risk if returned to the country in question of persecution for a 1951 Refugee Convention reasons (race, religion, nationality, membership of a particular social group or political opinion), or treatment contrary to the ECHR as applied by the Human Rights Act 1998."
He then referred to Article 2 and 3 of the ECHR. Before me, Mr Melvin Farr for the petitioner accepted that that correctly set out the approach that the adjudicator was required to follow.
[6] It is necessary to consider the petitioner's case as presented to the adjudicator and in argument before me against the background of the position of women in Pakistan. The adjudicator summarised the position in this way:"23. Theoretically, there is no discrimination against women in Pakistani law. However, a woman's place in society in Pakistan is low. Domestic abuse and violence towards women is prevalent in Pakistan. There is strong discrimination against married women who have been forced to leave the matrimonial home or who have decided to leave. They are open to charges of adultery. Police and judges tend to see domestic violence as a family problem and are reluctant to take action in such cases. There are an insufficient number of women's refuges for the problem considering that some 70% to 90% of women are victims of domestic violence at the hands of their husbands, in-laws or other relatives. The state-run shelters (Darul Amans), some of which are severely overcrowded, are also inadequate in number and services. The situation of women in Pakistan varies considerably depending on geographical location and class. Women fare better in urban areas and middle and upper class sections of society, where there are greater opportunities for higher education and for paid and professional work, and women's social mobility is somewhat less restricted. Women belonging to the upper and middle classes have increasingly greater access to education and employment opportunities and can assume greater control of their lives.
24. During 2001 the press reported on hundreds of incidents of violence against women and drew attention to the killings of married women by relatives over dowry or other family-related disputes. Most of the victims were burned to death allegedly in kitchen stove accidents; some women were reportedly burned with acid. Most 'stove deaths' are in fact killings based upon suspicion of illicit sexual relationship or upon dowry demands.
25. The tradition of killing those suspected of illicit sexual relations in so-called 'honour killings', in order to restore tribal or family honour, applies equally to offending men and women, though women are fare more likely to be killed than men. It is particularly prevalent in tribal society such as rural Sindh and Baluchistan. Tribal custom among the Baluch and the Pathans sanctions such killings."
Mr Melvin Farr took no exception to this summary.
[7] The adjudicator accepted that women were to be regarded as a social group in Pakistan according to United Kingdom law: see Islam v Secretary of State for the Home Department, R v Immigration Appeal Tribunal ex parte Shah [1999] 2 AC 629. But it is not enough for the petitioner simply to show that she is a member of that social group for the purpose of the Refugee Convention. She must show a real risk of persecution by reason of belonging to that social group. In terms of Article 3 of the ECHR, the question is a similar one: regardless of social group, is there a real risk of the petitioner being subjected to ill-treatment reaching the Article 3 threshold if returned to Pakistan. Again, Mr Melvin Farr accepted that that summary of the position was correct. The petitioner gave evidence before the adjudicator through an interpreter in Urdu. I assume that her written statements were also made through an interpreter. The adjudicator set out her case as he understood it, on the evidence which she presented. His summary is at paragraphs 10-15 of his Determination and I repeat it below:"10. In summary, the appellant's evidence was she married her husband in Pakistan on 1 December 1998. It was an arranged marriage. Her husband was the son of her father's cousin. She lived with her husband and in-laws in Faisalabad. Her mother-in-law and her husband's elder brother resented her from the first day of the marriage because they had wanted the appellant's husband to marry the mother-in-law's niece, who was the appellant's brother-in-law's wife's sister. Her mother-in-law and brother-in-law beat her often and turned her husband against her, and after about a year she started being beaten by him on the misleading information he received from his parents.
11. She overheard a conversation in the absence of her husband where the other family members were planning to burn her alive on the pretext that the gas supply was very low and she would have to use mud ovens for cooking. As soon as she started cooking they would turn the gas supply on and set her alight. In cross-examination, she stated that the plan was that they would tamper with the kerosene oil cooker, as they did not have gas, and when she went to cook on it, it would blow up and they would make out that it was an accident.
12. The door was normally kept locked but she took advantage of an occasion when it was not and escaped, on 25 June 2001. She went to her parents' house but her father was against her leaving home and ordered her to leave. She went to stay with a female college friend and her parents in Lahore. The police were not interested in her case. Women's organisation could not help as she already had someone to stay with.
13. She left Pakistan with the assistance of an agent. She got assistance at an Asian centre in the United Kingdom. It was about a month before she claimed asylum.
14. She took her jewellery and her important documents with her to her friend's house because she intended to take up employment.
15. Despite the size of Pakistan, she could not get refuge anywhere else. She would face violence from her relatives, the public and the police. She would be arrested and detained if she returned".
It is to be inferred from what follows in the determination that, had he accepted that evidence, the adjudicator would have upheld her appeal. I infer that from the fact that after setting out that evidence, having identified the correct test under the Refugee Convention and the ECHR, and having set out in paragraphs 23-25 the position of women in Pakistan, the adjudicator moves straight into saying, in paragraph 26:
"I do not consider that (sic) the appellant to be credible or her evidence to be reliable".
He then set out in paragraphs 27-32, to which I shall return, matters which he regarded as supporting his view that the appellant was not credible and her evidence not reliable. He then says, in paragraph 33:
"As I do not find the appellant credible, it follows that her claim under the 1951 Refugee Convention and the ECHR must fail".
The main focus of the challenge before me, therefore, was whether there was any proper basis upon which the adjudicator could come to that conclusion.
[8] Before turning the particular criticisms of the adjudicator's reasoning in those paragraphs, I should first set out certain matters which inform the Court as to its approach in cases such as this. Mr Melvin Farr referred me to the decision of the Court of Appeal in R v Secretary of State for the Home Department and Another, ex parte Robinson [1998] QB 929. This concerned the question of whether the Tribunal was limited to the arguments advanced before the adjudicator; and similarly whether the Court was limited to the arguments taken in the notice of appeal to the Tribunal. The judgment of the Court was given by Lord Wolffe MR. He dealt with the point in this way at pp.945-6:"It is now, however, necessary for us to identify the circumstances in which it might be appropriate for the tribunal to grant leave to appeal on the basis of an argument not advanced before the special adjudicator, or for a High Court judge to grant leave to apply for judicial review of a refusal of leave by the tribunal in relation to a point not taken in the notice of appeal to the tribunal.
"Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious." Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."
Mr Melvin Farr argued that this approach had been followed in Scotland. He referred me to the decision of Lord Nimmo Smith in the petition of Harjinder Singh (12 July 2000, unreported), at paragraph 3. At paragraph 3 Lord Nimmo Smith summarised the position in this way:
"The decision of the IAT to refuse leave to appeal may accordingly be susceptible to judicial review if inter alia it has failed to take into account a relevant consideration which was either advanced in the grounds of appeal or which was otherwise readily discernible and obvious."
I did not understand Mr Stewart to disagree with this in principle. However, he asked me to bear in mind also the observations of Lord Reed in the petition of Mutas Elabas (2 July 2004, unreported) where at paragraph 23 Lord Reed offers the following guidance:
"It is however important to bear in mind that obviousness is emphasised in both ex party Robinson and ex parte Kallcak. As Lord Penrose observed in Parminder Singh v Secretary of State for the Home Department, 10 July 1998 (unreported),
'Whatever else this indicates, it is clear that there is and can be no duty to pursue each and every hypothesis that could be postulated in the search for possible grounds for support of an appeal which may have escaped the notice of the appellant's advisors.'
In the same case, Lord Penrose also said:
'It seems to me that in considering whether the IAT has erred in relation to matters of fact, or to inferences properly to be drawn from facts and circumstances, one is concerned only with the clear, the obvious, with question that fly out for answer.'
I respectfully agree with his observations, which reflect the limited nature of the Court's supervisory jurisdiction over the Tribunal. Although counsel for the petitioner in the present case understandably emphasised the need for 'anxious scrutiny', it is necessary to remember that the Court's jurisdiction to interfere with the decisions of adjudicators or of the Tribunal is based on the same fundamental principles that apply in other areas of administrative responsibility. Although the Tribunal is not restricted by Wednesbury principles in considering whether to entertain an appeal, the Court has to apply those principles in deciding whether to interfere with the Tribunal's decision."
In the present case I was not entirely sure why this point was relevant. It was not suggested to me that the points being taken on behalf of the petitioner differed in any fundamental respect from those addressed by the adjudicator.
[9] Mr Melvin Farr next referred me to another decision of the Court of Appeal, namely, Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449. He relied upon this decision for passages in the judgment of Sedley LJ at pages 477-479, which, building upon Australian jurisprudence, emphasised that decision making in this field does not involve a choice between two conflicting accounts. The convention issues are evaluative, not factual. The decision maker, in making his evaluation (or "speculation", as the Australian jurisprudence describes this exercise), must take into account everything capable of having a bearing on the issue, and give it the weight, great or little, due to it. Sedley LJ quoted with approval a passage from the judgement of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259:"It is not an error of law for such a decision maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the "real chance" of persecution required by Chan [Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379]. Secondly, the decision maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan, cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision maker in the end to return to the question: "What if I am wrong?" [Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441]. Otherwise by eliminating facts on the way to the final conclusion, based upon what seems "likely" or "entitled to greater weight", the decision maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a "real chance" of persecution ..."
Sedley LJ also noted that in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 the Federal Court had adopted the approach of Drummond J in Thanh Phat Ma v Billings (1996) 71 FCR 431, 436:
"... unless the decision maker can dismiss as unfounded factual assertions made by the applicant, the decision maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect."
Mr Stewart did not dispute the approach identified in Karanakaran. However, he emphasised, under reference to Asif v Secretary of State for the Home Department 2002 SC 182, that this did not dispense with the requirement placed of necessity on the adjudicator to assess the credibility of the applicant. He referred me to a passage at p.189 where, after referring to the need expressed in various authorities to handle questions of credibility with sensitivity to cultural differences, the Court said this:
"It does not, however, in our opinion, follow that the question of the applicant's credibility can be set aside or that the account he gives is not to be tested. In the present case, the real issue is whether the appellant is giving an account of his reasons for leaving Pakistan and coming to the United Kingdom which can be believed at all. It is true that one factor bearing on the judgment on any such issue is whether the events described by the applicant can be regarded as events of a kind which could well happen in the country concerned. The fact that there is consistency between the narrative and the known situation in the state from which an applicant has come, however, can only be a part of the judgment as to whether the particular applicant or appellant is a person who is in genuine apprehension of persecution. As we have said, we accept without reservation that credibility is an issue which must be approached with care and with sensitivity to cultural differences and the very difficult position in which applicants escaping from persecution often find themselves. It is, however, a matter of everyday experience that the credibility of witnesses can, and often must, be tested by examining what they say in regard to peripheral matters as well as central ones. The United Kingdom system of immigration control presupposes that the credibility of applicants has to be judged and, if a judgment is to be made, it is very difficult to see that it can be made without reference to the ordinary tests of consistency and inconsistency, always applied with due sensitivity."
I do not consider that there is any conflict between the passages to which I have referred. The remarks of Sedley LJ in Karanakaran serve to emphasise the need, in assessing the evidence, to recognise that the appellant does not need to establish any particular facts on balance of probabilities: all that needs to be proved is that there is "a real risk". Matters should not be excluded from the overall assessment, therefore, simply because they are not established on balance of probabilities. The adjudicator will be concerned to see that the appellant's fear is genuine, and that it is a fear which is real as opposed to fanciful. In undertaking this task, he will obviously need to make an assessment of the appellant's credibility; but as has been emphasised in the cases, this is a task which he will require to conduct with sensitivity to cultural differences and with a recognition that applicants for asylum may well, for any number of reasons including fear or ignorance or reticence or language difficulties, be liable to give an unsatisfactory account of themselves, of their history and of their circumstances.
[10] I was also reminded by Mr. Stewart, in answer to the criticisms that were made of the adjudicator's reasons, of the observations made by the Inner House in Daljit Singh v Secretary of State for the Home Department 2000 SC 219 at 223:" In connection with immigration appeals it is to be noted that in terms of r. 2(3)(b) of the Asylum Appeals (Procedure) Rules 1996 every determination is to consist of a concise statement of (i) the decision on the substantial issues raised; (ii) any findings of fact material to the decision; and (iii) the reasons for the decision. We agree with the view of Lord Penrose in Mohammed Asif, Petitioner: nothing could be more destructive of the efficient disposal of immigration appeals than the notion that the adjudicator and the tribunal are under an obligation to carry through a mechanical process of narration of the evidence, analysis of it into classes, and an explanation factor by factor of the relevance or irrelevance, credibility and reliability or otherwise of it."
I do not doubt that that is correct. However, it is only by considering the reasons which are in fact given that the Court is able to see whether the adjudicator has erred in law or has reached a decision in respect of which, under the old system of review with which this case is concerned, an appeal has a "real prospect of success". In the present context, the passage cited from Daljit Singh simply serves to remind the Court that its scrutiny of the adjudicator's reasons must take account of the limited nature of the reasons that an adjudicator requires to give.
[11] The adjudicator's reasons for deciding that the appellant was not credible, and therefore that her claim must fail, are set out in paragraphs 27 - 32 of his determination. To my mind the adjudicator's reasoning in those paragraphs is unfounded, or at least is not shown to be based on any material sufficient to support it. I take some examples.(1) In paragraph 27 the adjudicator points out that the appellant did not claim asylum for about a month after her arrival, "during which time she sought advice at an Asian centre". He goes on to say:
"It would have enhanced her claim if she had told her tale of domestic violence before having had the opportunity of hearing about United Kingdom law on the subject. I do not find her explanation of thinking she had to wait for her identification and birth certificate to arrive before claiming asylum, or that she was advised to wait for it, to be plausible. She deliberately came to the United Kingdom. She had assistance of an agent. She had opportunity to consult with those who would know such things within the United Kingdom and was in fact in touch with an Asian centre."
If the adjudicator is simply saying that her delay in applying for asylum is an indication that her claim is not credible, then he is wrong. Delay by itself is entirely neutral on the question of credibility. It can only be judged by reference to the circumstances, including any explanation. The appellant gives an explanation, but he rejects it as implausible without giving any reasons for finding it implausible. This is wholly unsatisfactory. The references to an opportunity to consult with those in the United Kingdom who would know the requirements of United Kingdom law, and to being in touch with an Asian centre, appear to carry the innuendo that she (and they) would have used the time to concoct an untrue story to bolster her application. But there is no basis set out for any such inference.
- In paragraph 28 the adjudicator says that the appellant "made much of the hostility of her husband's family towards her, and the alleged fact that her mother-in-law had another candidate in mind for her son." He then dismisses this as "impossible to reconcile with the fact that this was an arranged marriage within the family". He explains:
"Everybody was related to everybody else. If her husband's family, by definition her own extended family, wanted a different marriage partner for him, there is absolutely no reason why they should not have arranged that in the first place. The hostility and abuse, which she faced from her mother-in-law from the start, cannot plausibly be linked to that reason."
The adjudicator appears to proceed upon the hypothesis that an arranged marriage would have been impossible unless the whole of the husband's family were fully in favour of it. Without such an impossibility, there is no basis for saying that the appellant's account of the mother-in-law's attitude is "impossible to reconcile" with the fact of the arranged marriage. But such a hypothesis is far from self-evident and the adjudicator gives no indication in his determination that he has given consideration to the possibility of, for example, the husband's father and mother having different attitudes to the marriage. If, as may be the case, he had no information on the subject, then he had no basis on which to reject the appellant's account as implausible.
(3) In paragraph 29, the adjudicator criticizes the appellant's account of how she was treated in this way:
"The appellant claimed to have been locked in, except for the day she escaped. However, if she was a prisoner, it is curious that she had full access to her own documents and jewellery. It is also inconsistent with her own complaint that she had to sleep on the veranda, which she describes at interview in the context of her alleged miscarriage after an assault by her mother-in-law. If the incident of the miscarriage was important to the appellant's claim, I consider that she would have mentioned it in her SEF asylum questionnaire as she could easily have asked to speak to the female member of her solicitor's staff. That she did not is indicative of a recent invention to bolster her claim."
This passage appears to be based on a misreading of the evidence presented by the appellant. The appellant did not claim that she had always been locked in. A fair reading of her evidence shows that this first happened at a late stage. The miscarriage incident clearly, on her account, occurred earlier, so there is no inconsistency as asserted by the adjudicator. Further, the miscarriage was mentioned by the appellant in her SEF form. On the material before the court, there is no basis for the adjudicator's suggestion that the miscarriage story was a "recent invention to bolster her claim".
(4) In paragraph 31 the adjudicator says this:
"It is possible that the appellant was a victim of domestic violence within Pakistan. The background evidence shows that a large proportion of women in that country are in that unfortunate position. Reference was made on the appellant's behalf to the existence of honour killings in Pakistan. Honour killings are largely practised in lower socio-economic and tribal groups. They involve adultery or in dowry disputes, in the main. It is not plausible that the appellant was targeted. She comes from the educated middle classes. There was no question of adultery, and no dowry dispute. The appellant had entered a marriage arranged by the very people that she alleges wish to get rid of her. She had not defied anybody. She had not brought her family dishonour."
It would be legitimate for the adjudicator to examine critically the appellant's concern that she would be the target of an honour killing. Part of his consideration would properly take into account the prevalence of honour killings in different socio-economic groups or in response to different alleged problems. Therefore he is entitled to say that they "largely" occur in lower socio-economic and tribal groups, and that "in the main" they involve adultery and dowry disputes. But without more that cannot make it "not plausible" that the appellant was targeted - by the use of the words "largely" and "in the main", the adjudicator recognises that these incidents also happen in other classes and situations.