Scottish Court of Session Decisions

"26. In early September 2001 police arrested about fifty people suspected of sectarian violence in Karachi, allegedly belonging to the LJ and SM militant groups.

27. Earlier, it was reported in September 1997 that following the introduction of the Anti-Terrorism Act, sectarian killings and gun battles in Karachi and in Punjab significantly receded. Life was said to be returning to normal in Lahore and other Punjab cities since the security forces had been given sweeping powers under the new law.

28. After incidents of February/March 2001, the government announced plans to tackle sectarian violence, with calls on the provincial governments to take action against those making provocative speeches or publishing inflammatory literature.

29. Unrest and massacres have continued, with most victims being Shias.

30. It is misleading and inconsistent for the CIPU report to state at 5.3.57 that: "The Pakistani Government has been quick to respond to outbursts of sectarian violence although their action has not effectively curtailed sectarian murders." If one looks at the footnotes, one finds that this was information gleaned from the US State Department in 1996 and the BBC in 1997. It takes no account of the effect of the introduction of the Anti-Terrorism Act, nor of the crackdown by the military regime on religious extremists in August 2001, nor the advice to provincial governments.

31. The Canadian report of July 1999 observes that while high profile members of the respective communities were formerly targeted, there had been a switch to indiscriminate reprisal killings. Despite the age of the report, that is consistent with what is known of the situation to date. Its view, as stated, is that sectarian violence in one part of the country could lead to reprisals in another part. This is discussed in the context of internal flight, below."

"32. I consider the appellant to be credible and reliable as to his personal history. He presented himself for cross-examination, and the Home Office failed to take advantage of that opportunity. His account was consistent with the background evidence. His solicitor was not suggesting that, as a member of the Sunni majority, he was at risk merely for that reason. He was, as I accept, a member of the SSP, a militant Sunni group. He has lost a child in tragic circumstances, and has been attacked by persons belonging to the local SM, a rival militant group. The degree of risk on return is, however, a matter for me.

33. In assessing the risk to the appellant, it is relevant to note that the tendency is towards indiscriminate attacks, mostly by Sunnis on Shias rather than the other way round. The government does not tolerate religious violence and has taken steps to counter it. There is no reason to believe that the police would not protect the appellant, and his lack of fear of the authorities can be seen in his obtaining official documents, and his willingness to approach them to lay FIRs. A new regime, less tolerant of religious violence, has come to power since the appellant left. The focus has turned away from individuals to indiscriminate attacks. Even accepting a failure of State protection in the past, I do not consider that there is a real possibility that on return, he would be targeted for attack, or if he were, that there would be a failure of State protection, given the current attitude of the authorities. In short, I do not consider that, taking his account pro veritate, he has shown a real risk of future persecution. Nor, on this analysis, has he shown any real risk of treatment exceeding the minimum threshold for the purposes of Article 3. If I were wrong on that, there would still be the question of internal flight.

34. The alleged inapplicability of the internal flight alternative in this case depended, in submissions, on a sentence in the Canadian report which reads: "Sectarian violence in one part of the country can lead to reprisals in another." However, the possibility of tit for tat violence elsewhere is not the same as saying that there is any real likelihood that this individual would be pursued to the furthest reaches of that vast and populous country. He has no problems with the authorities. I consider that if the appellant did not return to his own area, then as a member of the majority Sunni population he could go virtually anywhere else. There was no evidence from which I could reasonably conclude that it would be unduly harsh for him to do so."

"3. The grounds of appeal are attached.

4. They argue that the Adjudicator's assessment of risk in paragraph 33 is at odds with his positive credibility finding in paragraph 32 and was in error. However, the acceptance in paragraph 32 of the Applicant's credibility, was subject specifically to the proviso that the degree of risk on return was a matter for the Adjudicator to decide. In making his assessment the Adjudicator took all the evidence into account and did not consider there was a real possibility that the Applicant would be targeted for attack. If he were, he found that there would be a sufficiency of State protection under the new government. The adjudicator was entitled to reach that latter conclusion on the basis of the background material before him. In any event the Applicant's problems were local and the Adjudicator found that as a member of the Sunni majority the Applicant could relocate internally within Pakistan and it would not be unduly harsh for him to do so. There is no arguable error in these conclusions.

5. An appeal would have no real prospect of success. Leave to appeal is refused."

"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."

It could not be said that the petitioner was of high prominence.

"Even accepting a failure of State protection in the past, I do not consider there is a real possibility that on return he would be targeted for attack, or if he were, that there would be a failure of State protection, given the current attitude of the authorities."

The question thus comes to be whether the adjudicator, applying the appropriate test, could not reasonably have reached the conclusion he did.

"The applicant may have a well-founded fear of ... ill-treatment for a Convention reason which may be perpetrated against him. But the risk, however severe, and the fear, however well-founded, do not entitle him to the status of a refugee. The Convention has a more limited objective, the limits of which are identified by the list of Convention reasons and by the principle of surrogacy."

Later at page 500, he said:

"The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the subordinate cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard which takes proper account of the duty which the state owes to all its own nationals. As Ward LJ said ... it is axiomatic that we live in an imperfect world. Certain levels of ill-treatment may still occur even if steps to prevent this are taken by the State to which we look for our protection."

"The issue may be formulated as follows: to avoid expulsion on Article 3 grounds must the applicant establish only that in the receiving country he would be at real risk of suffering serious harm from non-state agents or must he go further and establish too that the receiving country does not provide for those within its territory a reasonable level of protection against such harm? Mr Nicol, QC for the appellants, a Lithuanian couple with a young child, submits that they need establish only a real risk of harm on return. For the Secretary of State, Miss Carss-Frisk QC's principal submission is that the appellants must also establish that the receiving country would fail to discharge the positive obligation inherent in Article 3 to provide a reasonable level of protection."

In the following paragraph he said:

"It is of course implicit in the formulation of the issue in this way that a real risk of injury may remain despite the state's provision of a reasonable level of protection against it and such, indeed, I understand to be the agreed position in the facts of this very case. The Secretary of State concedes (certainly for the purposes of this litigation) that on return to Lithuania the appellants would be at real risk of serious injury by non-state agents; Mr Nicol for his part concedes that Lithuania provides a reasonable level of protection against violence of the sort threatened here. That, indeed, is why the stated issue is properly described as critical: its outcome is determinative of this appeal."

The issue was answered in favour of the Secretary of State. What was said to engage the UK's obligation under Article 3 was not the risk merely of harm but the risk of proscribed treatment. As his Lordship said, at paragraph 24:

"Non-state agents do not subject people to torture or other proscribed forms of ill-treatment, however violently they may treat them: what, however, would transform such violence into Article 3 ill-treatment would be the state's failure to provide reasonable protection against it."

After noticing the guidance provided for asylum cases by Horvath v Secretary of State for the Home Department, it was said that a broadly similar approach fell to be adopted under the EHCR. It was said inter alia: "Certainly your Lordships should state for the guidance of practitioners and tribunals generally, that in the great majority of cases an Article 3 claim to avoid expulsion will add little if anything to an asylum claim."