EXTRA DIVISION, INNER HOUSE, COURT OF
SESSION
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Lord Macfadyen
Lord Nimmo Smith
Lord Kingarth
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[2007] CSIH 65
XA98/05
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OPINION OF THE COURT
delivered by LORD MACFADYEN
in
APPEAL
under
section 103B of the Nationality, Immigration and
Asylum Act 2002
by
H A
Appellant;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent:
_____
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Act: Devlin; Drummond Miller, W.S. (for Appellant)
Alt: A. F. Stewart; Office of the Solicitor to the Advocate General
(for Respondent)
2 August 2007
Introduction
[1] The appellant
is a twenty year old citizen of Afghanistan who entered the United Kingdom clandestinely on 1
December 2003. He claimed asylum on 13 December
2003. By decision letter dated 13
February 2004
the respondent refused the appellant's asylum claim. The same letter also expressed the
respondent's decision that the United Kingdom would not be in breach of its
obligations under the European Convention on Human Rights if the appellant were
returned to Afghanistan.
The appellant appealed against those decisions to an Adjudicator. On 25 May 2004 the Adjudicator dismissed that
appeal. The appellant sought and, on 8
October 2004
was granted, permission to appeal against the Adjudicator's decision. In June 2005 that appeal, which in terms of
the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 proceeded by way of reconsideration,
was refused by an Immigration Judge. The
appellant then sought permission from the Asylum and Immigration Tribunal to
appeal to this court. On 4
August 2005
permission to appeal was refused by the Tribunal. Application for leave to appeal was then made
to this court and on 7 March 2006 such leave was granted. This court therefore has before it the appellant's
appeal against the Immigration Judge's decision of June 2005.
The circumstances
[2] The narrative
of circumstances on which the appellant bases his claims may be summarised as
follows. The appellant was born in
Mazar-i-Sharif in Afghanistan.
He has two sisters who now live with their husbands in Afghanistan and Pakistan respectively. His mother is deceased. His father and one brother were killed by the
Taliban. Another brother disappeared and
is believed to have been taken by the Taliban.
A third brother, MA, fled Afghanistan and now resides in the United Kingdom.
[3] In about
December 2002 the appellant met a girl called M, and they began a
relationship. They did so secretly, so
that no-one would know that they were going out together. They would go to different places including
the park. On about six occasions they
were able to meet at the appellant's sister's house as there was no one at
home. On those occasions they had sexual
relations. In about June 2003 M
discovered that she had become pregnant and told her mother that the appellant
was the father.
[4] The appellant
knew that it would not be acceptable to M's family that he should marry her, as
her father, Commander A, was important in the region. Commander A is a commander in General
Doustom's army, and is thus a senior military figure in Mazar-i-Sharif. He has a lot of power there and in the north
of Afghanistan.
He is an Uzbek. In addition, the
appellant's own family was considered to be of a lower caste.
[5] M's ten year old
sister told the appellant that her family knew that he was the father of M's
expected child. He therefore left home
and went to an aunt's house about an hour's drive away. His sister came to see him and asked him what
had happened, because her husband had been arrested and beaten. The appellant therefore went to hide with a
friend. He was told by his
brother-in-law that he would be killed if he returned. He was told by his brother-in-law that he
should leave Afghanistan.
As members of the Northern Alliance, Commander A and his sons had a lot of power and
influence with the Transitional Administration throughout the country, and
would find him wherever he went. The
appellant telephoned his brother in the United Kingdom, who said that he should sell the
family home and use the proceeds to leave Afghanistan.
The appellant therefore did so.
[6] After the
appellant left Afghanistan, members of the authorities under
Commander A's control went to the appellant's brother-in-law's shop and
demanded to know where the appellant was.
When his brother-in-law said that the appellant's whereabouts were not
known, he was so badly beaten that he required hospital treatment. He was forced to close his shop. It has not re-opened. He and his wife went first to Kabul, then to Peshawar in Pakistan because they were not safe in Kabul.
Commander A found them in Kabul, again arrested the brother-in-law
and demanded that he tell them where the appellant was. When it was found that the appellant was not
in Afghanistan his brother-in-law was released.
[7] On 27
March 2004
the appellant received from Afghanistan a copy of an arrest warrant that had
been issued for him. His friend J, with
whom he had been hiding in Afghanistan, obtained it for him. J had a relative who worked in the police
station in Mazar-i-Sharif, had seen a file containing the document, and had
obtained a copy of it.
[8] The appellant
fears that if he is captured he will be killed at once. The punishment for what he has done is death
by stoning. No one has heard of M since
the appellant left Afghanistan.
He does not know if she is still alive.
The submissions for the
appellant
[9] In opening
his submissions for the appellant, Mr Devlin formulated five propositions in
which he identified what he said were errors in law on the part of the
Immigration Judge. The first proposition
was that the Immigration Judge erred in law in that there was insufficient
evidence before him to entitle him to exclude the appellant's account of his
activities with M as incredible. There
followed three more propositions asserting error on the part of the Immigration
Judge in reaching other conclusions on matters of credibility. Although those were initially articulated as
separate propositions, they came in the course of the development of Mr
Devlin's submissions to assume the role of subsidiary elements of the first
proposition. Finally, Mr Devlin advanced
the proposition that the Immigration Judge erred in law in finding that the
appellant could safely relocate in Kabul or elsewhere.
The proper approach to
identifying error of law
[10] At the outset
of the development of his main submission, Mr Devlin accepted that the appeal
to this court is an appeal on point of law only. He accepted that this court could not simply
examine the evidence with a view to forming its own view as to the facts
established. He said that it was not his
submission that this court was entitled to enter into the assessment of the
evidence on the merits of the claim.
However, he submitted, that did not mean that the court was prevented
from examining a decision for error of law merely because the decision involved
findings of fact or inferences drawn from findings in fact. A finding in fact might disclose an error of
law if there was insufficient evidence to support it. In asylum cases, the assessment of whether
there was sufficient evidence to support a finding in fact called for the most
anxious scrutiny. Such an assessment
should be based on a holistic view of all the relevant evidence.
[11] The soundness
of Mr Devlin's initial concession is amply borne out by observations made in Mehmet Kahye v Secretary of State for the Home Department [2003] EWCA Civ 317,
which was cited to us by Mr Stewart for the respondent. In that case Scott Baker LJ said:
"10.
... [I]t is clear to me that the way in which the renewed application is
advanced is nothing more than a disagreement with the tribunal's findings of
fact. That does not found a basis for an
appeal to this court, which has to be on the ground that the tribunal erred in
law. ...
12.
... In my judgment, it is high time
that [those] involved in these cases ... appreciate ... that it is wholly
inappropriate to try to dress up an appeal as a point of law which is really a
disagreement with the fact-finding conclusions of the tribunal."
The point was reinforced in the judgment of Lord Woolf of
Barnes CJ at paragraphs 14 to 17. We are
not to be taken as suggesting that in the present case the submissions made by
Mr Devlin involved any abuse of the procedures of the court, but it is salutary
to be conscious of the risk of allowing the limitation of the right of appeal
to points of law to be circumvented or eroded by characterising in one way or
another as points of law matters that are truly mere disagreement with the
fact-finder on matters of fact.
[12] Although at
first Mr Devlin appeared to be arguing that any conclusion on a matter of fact
required to be founded on sufficient evidence, whether that conclusion was a
positive finding in fact or a refusal to accept evidence as credible or
plausible, as his submission developed it came to be that where evidence was
rejected as incredible or implausible, there had to be grounds for so rejecting
it which would bear scrutiny. The reason
for rejection might lie in the acceptance of other evidence, but did not
inevitably do so. It must not rest on
mere conjecture or speculation. Evidence
might, however, be rejected as incredible or implausible if it lay so far
beyond human experience as to be inherently unlikely.
[13] It is as well
to bear in mind, in approaching the question of whether a decision on
credibility involves any error of law, that, as the Immigration Judge reminded
himself at paragraph 23 of his determination, the standard of proof incumbent
on the appellant is the low standard of reasonable likelihood (Sivakumaran [1988] Imm AR 147; Kaja [1995] Imm AR 1; Karanakaran [2000] Imm AR 271). It is also right for us to bear in mind, as
Mr Devlin submitted we should, that cases of this nature, which involve fundamental
human rights, "call for the most anxious scrutiny" (Bugdaycay [1987] 1 AC 514 per Lord Bridge of Harwich at 531G; see
also Regina v Ministry of Defence, Ex parte Smith [1996] QB 517 per Simon Brown
LJ at 537-8).
[14] In support of
his submission that decisions on matters of credibility or plausibility require
to be adequately explained, Mr Devlin cited two cases. The first of these was HK v Secretary of State for
the Home Department [2006] EWCA Civ 1037.
In that case the leading judgment was given by Neuberger LJ, who
observed (at paragraph 24) that the court could normally be expected to refuse
to interfere with findings of primary fact and the drawing of inferences from
such conclusions. At paragraph 25 his
Lordship continued:
"However, ... this does not mean that
we cannot quash the decision of the Tribunal in this case merely because it
involved findings of fact and the drawing of inferences from those
findings. Thus, in E v Secretary of State [2004] QB 1044 Carnwath LJ ... said at paragraph 66 that 'a mistake of fact giving rise
to unfairness is a separate head of challenge in an appeal on a point of law',
albeit subject to certain conditions which he then enumerated."
Although Mr Devlin cited that passage, he did not develop any
submission based on the dictum of
Carnwath LJ, and we need therefore say nothing more about it except that we
reserve our opinion on the soundness or at least the scope of the
proposition. Neuberger LJ went on (in
paragraph 26) to recognise perverseness in connection with a finding in fact as
an aspect of error of law, and quoted from R
(Iran) v Secretary of State [2005] EWCA Civ 982, per Brooke LJ at paragraph 11, where the concept of perversity
was recognised as including "irrationality or unreasonableness in the Wednesbury sense" as well as "a finding
in fact that was wholly unsupported by evidence". In paragraph 27, his Lordship discussed the
particularly acute difficulty of the fact-finding exercise in asylum cases (Gheisari v Secretary of State [2004] EWCA
Civ 1854). His Lordship continued:
"28. Further,
in many asylum cases, some, even most, of the appellant's story may seem
inherently unlikely but that does not mean that it is untrue. Ingredients of the story, and the story as a
whole, have to be considered against the available country evidence and
reliable expert evidence, and other familiar factors, such as consistency with
what the appellant has said before, and with other factual evidence (where
there is any).
29. Inherent
improbability, which may be helpful in many domestic cases, can be a dangerous,
even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to
societies with customs and circumstances which are very different from those of
which the members of the fact-finding tribunal have any (even second-hand)
experience. Indeed, it is likely that
the country which an asylum-seeker has left will be suffering from the sort of
problems and dislocations with which the overwhelming majority of residents of
this country will be wholly unfamiliar.
...
30. Inherent
improbability in the context of asylum cases was discussed at some length by
Lord Brodie in Awala v Secretary of State [2005] CSOH 73
[reported sub nom. Wani v Secretary of State for the Home Department 2005 SLT 875]. At paragraph 22 he pointed out that it was
'not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not
credible is to state a conclusion' (emphasis added). At paragraph 24, he said that rejection of a
story on grounds of implausibility must be done 'on reasonably drawn inferences
and not simply on conjecture or speculation'.
He went on to emphasise, as did Pill LJ in Ghaisari [sic], the
entitlement of the fact-finder to rely 'on his common sense and his ability, as
a practical and informed person, to identify what is or is not plausible'. However, he accepted that 'there will be
cases where actions which may appear implausible if judged by ... Scottish
standards, might be plausible when considered within the context of the
applicant's social and cultural background."
[15] The second
case relied on by Mr Devlin was Reid v
Secretary of State for Scotland 1999 SC (HL) 17, [1999] 2 AC 512. He quoted
the following passage from the speech of Lord Clyde at 41H-42B (541F-542A):
"Judicial review involves a challenge
to the legal validity of the decision.
It does not allow the court of review to examine the evidence with a
view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is
being challenged has done something which it had no lawful authority to
do. It may have misused or abused the
authority which it had. It may have
departed from the procedures which either by statute or at common law as
matters of fairness ought to have been observed. As regards the decision itself it may be
found to be perverse, or irrational, or grossly disproportionate to what was
required. Or the decision may be found
to be erroneous in respect of a legal deficiency, as for example, through the
absence of evidence, or sufficient evidence, to support it or through account
being taken of irrelevant matter, or through failure for any reason to take
account of a relevant matter, or through some misconstruction of the terms of
the statutory provision which the decision-maker is required to apply. But while the evidence may have to be
explored in order to see if the decision is vitiated by such legal deficiencies
it is perfectly clear that in a case of review, as distinct from an ordinary
appeal, the court may not set about forming its own preferred view of the
evidence."
We have no difficulty in accepting that those observations,
made in the context of judicial review, are applicable also in the context of a
statutory appeal confined to points of law.
However, we note that, comprehensive as Lord Clyde's observations were,
they had no need to, and therefore did not, address the particular issue of the
basis on which a tribunal's approach to questions of credibility may disclose
error of law.
[16] Mr Stewart
reminded us of the guidance on the assessment of credibility in the immigration
context offered in Esen v Secretary of State for the Home Department 2006
SC 555, per Lord Abernethy delivering the opinion of the court at paragraph 21:
"Credibility is an issue to be
handled with great care and with sensitivity to cultural differences and the
very difficult position in which applicants for asylum escaping from
persecution often find themselves. But
our system of immigration control presupposes that the credibility of an
applicant's account has to be judged (Asif
v Secretary of State for the Home
Department [2002 SC 182]).
Credibility is a question of fact which has been entrusted by Parliament
to the adjudicator. The adjudicator is
someone specially appointed to hear asylum appeals and has the benefit of
training and experience in dealing with asylum seekers from different societies
and cultures. Of course, an adjudicator
must give his reasons for his assessment.
A bare assertion that an applicant's account is implausible is not
enough (W321/01A v Minister for Immigration and Multicultural
Affairs [2002 FCA 210]). But an
adjudicator is entitled to draw an inference of implausibility if it is based
on the evidence he has heard and in coming to his conclusion he is entitled to
draw on his common sense and his ability, as a practical and informed person,
to identify what is or is not plausible (Wani
v Secretary of State for the Home
Department)."
What is there said about an adjudicator is, we accept,
applicable to an immigration judge.
[17] In the light
of the cases cited to us it is convenient at this stage to formulate some
propositions about the circumstances in which an immigration judge's decision
on a matter of credibility or plausibility may be held to disclose an error of
law. The credibility of an
asylum-seeker's account is primarily a question of fact, and the determination
of that question of fact has been entrusted by Parliament to the immigration
judge (Esen, paragraph 21). This court may not interfere with the
immigration judge's decision on a matter of credibility simply because on the
evidence it would, if it had been the fact-finder, have come to a different
conclusion (Reid, per Lord Clyde at
41H). But if the immigration judge's
decision on credibility discloses an error of law falling within the range
identified by Lord Clyde in the passage quoted above from Reid, that error is open to correction by this court. If a decision on credibility is one which
depends for its validity on the acceptance of other contradictory facts or
inference from such facts, it will be erroneous in point of law if the
contradictory position is not supported by any, or sufficient, evidence, or is
based on conjecture or speculation (Wani,
paragraph 24, quoted with approval in HK at
paragraph 30). A bare assertion of
incredibility or implausibility may disclose error of law; an immigration judge
must give reasons for his decisions on credibility and plausibility (Esen, paragraph 21). In reaching conclusions on credibility and
plausibility an immigration judge may draw on his common sense and his ability,
as a practical and informed person, to identify what is, and what is not, plausible
(Wani, paragraph 24, page 883L,
quoted with approval in HK at
paragraph 30 and in Esen at paragraph
21). Credibility, however, is an issue
to be handled with great care and sensitivity to cultural differences (Esen, paragraph 21), and reliance on
inherent improbability may be dangerous or inappropriate where the conduct in
question has taken place in a society whose culture and customs are very
different from those in the United Kingdom (HK
at paragraph 29). There will be cases where actions which may appear implausible
if judged by domestic standards may not merit rejection on that ground when
considered within the context of the asylum-seeker's social and cultural
background (Wani, paragraph 24, page
883I, quoted with approval in HK at
paragraph 30). An immigration judge's
decision on credibility or implausibility may, we conclude, disclose an error
of law if, on examination of the reasons given for his decision, it appears
either that he has failed to take into account the relevant consideration that
the probability of the asylum-seeker's narrative may be affected by its
cultural context, or has failed to explain the part played in his decision by
consideration of that context, or has based his conclusion on speculation or
conjecture.
The Immigration Judge's
decision - the objective evidence
[18] In paragraphs
61 to 64 of his determination the Immigration Judge narrates the objective
evidence which he took into account in approaching the credibility of the
appellant's narrative of his relationship with M. His source was the Afghanistan Country Report
dated April 2005 prepared by the Country Information and Policy Unit of the
Immigration and Nationality Directorate of the Home Office ("the CIPU
Report"). He summarised paragraphs
6.167, 6.168, 6.169 (misprinted as 6.619), 6.177, 6.209, 6.224 and 6.242 of the
CIPU Report. He pointed out in paragraph
65 of his determination that there was nothing to contradict that material, and
went on:
"There is no objective evidence, of
any kind, to suggest to me that the account given by the Appellant in relation
to his activities with [M] is remotely likely. ...
66. There
is nothing to suggest in any of the objective evidence before me that the
Appellant and [M] would have been able to enjoy the relatively open
relationship that they did have [sic;
presumably he meant "that the appellant claimed that they had"] by meeting
every day and going to the local park.
Were the case that this happened I would have expected this type of
activity to have been revealed in the objective evidence before me
notwithstanding what is stated in the objective evidence that it is difficult
to obtain reliable data. There is no
such evidence.
67. The
extent of the continuing restrictions faced by women in Afghanistan suggests to me that there is no
reasonable degree of likelihood that the Appellant's account is true."
[19] Mr Devlin
submitted that there was no sufficient basis in the CIPU Report for the
conclusion which the Immigration Judge reached in paragraph 67 of his
determination. The restrictions on women
referred to in the passages relied on were for the most part of a different
nature. In paragraph 6.168 there was
reference to girls "once confined to their homes", which implied that that was
no longer so. The statement that
improvements in women's and girls' rights "can especially be seen in urban
centres such as Kabul" could be applied to Mazar-i-Sharif, which was
urban. The statement that "many Afghan
women and girls continue to struggle to exercise fundamental rights to ...
freedom of movement" implied that others did not. Paragraph 6.169 contained reference to
restrictions on movement that impeded women's ability to travel, study and
work, applied in "some" areas, which suggested that they did not in others.
Nothing in the passages relied upon directly supported the proposition that
there was no scope for women or girls such as M to meet a man in the way the
appellant said M met him.
[20] In response to
this part of Mr Devlin's submissions Mr Stewart submitted that paragraphs 61 to
67 of the Immigration Judge's determination had to be read as a whole. The review of the objective evidence
disclosed two themes which were relevant to the Immigration Judge's conclusion
in paragraph 67. The first was that
there remained widespread restrictions on movement for women and girls. The second (paragraph 6.224) was that
marriage remained a question of relationships between families, not
individuals. The Immigration Judge had
properly gone about the task of evaluating what support, if any, the appellant's
account derived from the objective evidence (Esen, paragraph 21; we would add HK at paragraph 28). No
error of law was disclosed in that part of his determination.
[21] In our opinion
Mr Stewart's analysis of this aspect of the Immigration Judge's determination
is well-founded. The Immigration Judge
was undoubtedly entitled, indeed bound, to examine the objective evidence to
see whether it afforded on the one hand support for, or on the other hand
ground for rejecting as incredible, the appellant's account of his relationship
with M. It is right that, as Mr Devlin
pointed out, there was nothing in the objective evidence that bore directly and
expressly on the likelihood of a girl like M being able to go out and meet with
a young man like the appellant in the circumstances to which the appellant
spoke in his evidence. Indeed in
paragraph 66 the Immigration Judge made just that point. However, the general tenor of the objective
evidence is of continuing restrictions on the freedom of women and girls. When that is taken with the evidence about
the attitude to marriage, it seems to us that the Immigration Judge was
entitled, as a matter of legitimate inference, to conclude that circumstances
in Mazar-i-Sharif, and in M's family, were not such as to lend any support to
the credibility of the appellant's account, and indeed pointed the other
way. We conclude that in this part of
his determination the Immigration Judge was properly carrying out his function
as primary fact-finder, and that his approach discloses no error of law.
The Immigration Judge's
decision - reasons for rejection of the appellant's account.
[22] In paragraph
68 of his determination the Immigration Judge gives three reasons, derived from
the appellant's own evidence, for finding the appellant's account of his
relationship with M incredible. Mr
Devlin attacked each of these as disclosing an error of law.
[23] The first
reason given in paragraph 68 is in the following terms:
"What seems particularly unlikely is
that the Appellant would telephone [M's] house knowing that while her parents
might not be there her brothers could, presumably, have answered the telephone
call. From his own evidence the
Appellant knew that his relationship with [M] was not one that would be
approved of. [M] would then walk
(whether she was wearing a burqa or not we do not know) to the Appellant's
sister's house where they would engage in a sexual relationship."
[24] The oral
evidence of the appellant on which that reason is based is recorded in
paragraph 28 of the determination in the following terms:
"He would call [M] at her house and
either [M] or her younger sister would answer.
He would ring at about 12.15 from his sister's house and [M] would walk
about one kilometre to his sister's house."
Mr Devlin submitted that, since that was all that was
recorded by way of evidence, the comment by the Immigration Judge that M's
brothers could have answered the telephone was conjecture or speculation, as
was made clear by the use of the word "presumably". The evidence recorded that the calls were
made at an arranged time, and that M or her sister would answer. There was apparently no evidence about where
M's brothers might be at the arranged time.
Without more detail in the evidence there was no sufficient basis for a
finding that that aspect of the appellant's account was so improbable as to
cast doubt on its plausibility. The
appellant's account could not be excluded on a bare assertion that it was
implausible (W321/01A v Minister for Immigration and Cultural
Affairs, per Lee J at paragraph 30, quoted with approval in Esen at paragraph 21). That part of the Immigration Judge's
reasons for rejecting the credibility of the appellant's account thus did not
bear scrutiny, and revealed an error of law.
[25] The second
reason given in paragraph 68 is in the following terms:
"Given that the Appellant knew that
his relationship, if discovered, would lead to serious problems it is
surprising that there is no evidence before me of the precautions taken by the
Appellant and [M] to ensure that she did
not become pregnant. It might be thought
that this is one area where considerable caution would have been exercised by
the Appellant but there was no evidence on this aspect."
[26] Mr Devlin
submitted that the Immigration Judge had acted unfairly in not raising with the
appellant his concern about the absence of evidence of precautions against
pregnancy. He cited Hadmor Productions Ltd v Hamilton [1983] AC 191 per Lord Diplock at
233B-D where reference was made to:
"the right of each [party] to be
informed of any point adverse to him that is going to be relied upon by the
judge and to be given an opportunity of stating what his answer to it is."
Mr Devlin also cited (from Symes and Jorro, Asylum Law and Practice, paragraph 2.31)
an observation made by Lord Bingham writing extra-judicially in 1983:
"No judge worth his salt could
possibly assume that men of different nationalities, educations, trades,
experience, creeds and temperaments would act as he might think he would have done
or even - which may be quite different - in accordance with his concept of what
a reasonable man would have done."
Mr Devlin invited us to adopt that and to apply it to the
Immigration Judge's view of what "might be thought" on the question of precautions
against pregnancy.
[27] The third
reason given in paragraph 68 is in the following terms:
"The Appellant indicates that he was
very fond of [M] and presumably her [sic]
feelings were reciprocated and yet it appears that she did not tell him that
she was pregnant. ... While it is well known that a daughter will
often confide in her mother at such times it seems to me that both [M] and the
Appellant knew very well that this was a relationship that would be very much
disapproved of by [M's] mother and particularly her father. It might be thought that [M] would then be
more likely to tell the Appellant of her pregnancy and seek his advice on what
she should do knowing that when she told her mother sanctions would be likely
to be applied to her including the restriction that she would not then be able
to see the Appellant. In a genuine
relationship it seems to me that [M] would have been likely to have made every
effort to have seen and discussed her pregnancy with the Appellant but, on the
Appellant's account she did not do so."
[28] Again Mr
Devlin's submission was that in that passage the Immigration Judge fell into
error of law in failing to consider the effect of the different culture in
which the appellant and M were living.
He drew inferences about what "might be thought" and what would have
been likely to take place "in a genuine relationship" without disclosing that
he had given any thought to the cultural context, and whether young people in Afghanistan might have behaved differently from
the way in which he thought they would.
[29] Mr Stewart
submitted that throughout paragraph 68 the Immigration Judge was exercising
properly his function of assessing the credibility of the appellant's
evidence. He was following the guidance
given in Esen at paragraph 21. He
was, as he was entitled to do, drawing on his common sense and his ability, as
a practical and informed person, to identify what is or is not plausible. There was no error in law in the reasoning
that led him to the conclusion in paragraph 69 that:
"In both the broad outline of the
Appellant's case that he and M had a relationship and in the detail of how that
relationship was carried out ... there is no reasonable degree of likelihood that
this account is true."
[30] We have come
to the conclusion that there is force in the criticisms made by Mr Devlin of
the Immigration Judge's reasoning in paragraph 68 of his determination, and
that that reasoning does disclose error of law.
So far as the point about the telephone calls is concerned, the Immigration
Judge appears to have proceeded on the view that the appellant's evidence was
inherently unlikely. That in itself is a
dangerous approach, but it is compounded by the fact that the improbability
arises from a view of the risk of M's brothers answering the telephone which
proceeds on no more than conjecture. We
therefore are of opinion that in that respect the Immigration Judge's decision
is erroneous in law. So far as the point
about precautions against pregnancy is concerned, we have some difficulty in
identifying precisely what the point is that the Immigration Judge is
making. Be that as it may, however,
there is in our opinion force in the submission that it was unfair of the
Immigration Judge, if he found in the absence of evidence about precautions
against pregnancy ground for regarding the evidence about the relationship as
implausible, not to put that point to the appellant to give him an opportunity
to put forward evidence on the point. If
he had done so, the appellant might, or might not, have been able to allay his
concern, but the procedure would have been fair. Moreover, there is also in our view force in
Mr Devlin's submission that in coming to a conclusion on what "might be
thought" of the way in which the appellant and M would have acted in the matter
of precautions against pregnancy there is no indication that the Immigration
Judge was alive to the fact that cultural and other circumstances in
Afghanistan might be such as to make what "might be thought" to be the likely
course in a domestic context very different from what would happen there. The same is even more clearly so in relation
to the third point, that M told her mother about her pregnancy rather than the
appellant. No account appears to have
been taken of cultural considerations in reaching the conclusion that in "a
genuine relationship" M would first have discussed her pregnancy with the
appellant. The error in law may lie in
failing to take proper account of the possibility that cultural considerations
could affect the inferences that might reasonably be drawn from the evidence,
or it may lie in failing to explain how such considerations were taken into
account in reaching the conclusions expressed, or it may lie in proceeding on
sheer conjecture as to how a young woman in Afghanistan, faced with a pregnancy
by a young man whom she knew her parents would not allow her to marry, would
react. We do not consider, however, that
the Immigration Judge's reasoning bears scrutiny as the foundation for a
conclusion that the appellant's account of his relationship with M was
inherently implausible.
The Immigration Judge's
decision - the treatment of the appellant's brother-in-law.
[31] Mr Devlin's
second submission, which, as we have noted, came to be developed as an aspect
of his first, was that the Immigration Judge erred in law in finding that the
applicant's claim that his brother-in-law had been ill-treated by Commander A
on a second occasion and compelled to leave his shop was incredible. His third submission, which likewise was
developed as an aspect of the first, was that the Immigration Judge erred in
law in requiring corroboration that Commander A would be able to find the
brother-in-law's family in Kabul and in finding that aspect of the
appellant's account implausible.
[32] Both of these
issues arise from the terms of paragraph 70 of the Immigration Judge's
determination, the first part of which is in the following terms:
"The Appellant says that his
brother-in-law was beaten up because of the Appellant's relationship with
[M]. The reason given for this is that
the brother-in-law would have been able to know the whereabouts of the
Appellant and he could then reveal that information to [Commander A] and [A's]
sons. I accept that this is not
implausible in itself but what I do find implausible is that the Appellant says
this happened to his brother-in-law, again, and thereafter, it was necessary
for his brother-in-law to close his shop.
Given that the Appellant's brother-in-law had nothing to do with the
actions of the Appellant it does strike me as unlikely that the commander would
have pursued his brother-in-law to the extent that it is claimed he did."
[33] Mr Devlin
submitted that in that part of paragraph 70 the Immigration Judge based his
rejection of the plausibility of the appellant's evidence on mere conjecture as
to how Commander A might react in the circumstances. Having accepted as plausible that Commander A
would contact the appellant's brother-in-law and use violence towards him
because he might thus compel him to disclose the appellant's whereabouts, the
Immigration judge had no proper basis for rejecting as implausible the account
that Commander A, having failed on the first occasion, made a second attempt to
find out from the brother-in-law where the appellant was. The Immigration Judge offers no explanation
of why, if one attempt is plausible, a second is not. Mr Stewart submitted, on the other hand, that
in the passage in question the Immigration Judge was legitimately testing the
account which the appellant had given.
We do not agree. When account is
taken of the position of power said to have been occupied by Commander A, and
the attitude which he was said to have adopted to the appellant's relationship
with M, some persistence in the pursuit of the appellant's brother-in-law in
search of information about the appellant's whereabouts seems to us to be
entirely plausible. What matters,
however, is not that we would have taken a different view on this point, since
that is not a matter for us, but rather than the Immigration Judge appears to
have left out of account the relevant considerations to which we have referred,
and to have proceeded instead on mere conjecture. In that respect we are of opinion that he erred
in law.
[34] In paragraph
70 of his determination the Immigration Judge continued in the following terms"
"What strikes me as particularly
unlikely is that the Appellant's sister and brother-in-law would both flee to Kabul and that thereafter they would be
found there. There is no objective
information before me to indicate that it is reasonably likely that the
commander would have been able to find the Appellant's brother-in-law in Kabul.
Two aspects of this strike me as particularly implausible. Firstly, that his brother-in-law would have
found it necessary, because of continual targeting by the commander, to flee
Kabul in the first place and, secondly, that the commander would have been
interested and would have been able to track him to a particular address in
Kabul and would have sought to cause him problems there. No evidence was offered as to how this
happened."
In paragraph 72 the Immigration Judge turned to the evidence
of the appellant's brother, MA. He
suggested that it was not clear whether he had had direct contact with his sisters,
and went on to say that:
"if it is the case that he is
offering direct evidence that he has learned that his sister and brother-in-law
have been found in Kabul and arrested then (as stated) I reject that evidence
as implausible. It may be, of course,
that his sister and brother-in-law do indeed now live in Peshawar in Pakistan but I do not consider there is any
reasonable degree of likelihood that this is caused by the actions of Commander
A."
[35] Mr Devlin
submitted that in these passages the Immigration Judge was again basing his
view of plausibility on conjecture. He
was leaving out of account the same
relevant considerations about the position of power occupied
by Commander A in General Doustom's army, and consequent power and influence
with the Transitional Administration throughout the country, and about his
attitude to the appellant's relationship with M. So far as MA's evidence was concerned, it was
clear that his evidence proceeded on direct contact with his sisters, R and Z,
and that the information from R linked her and her husband's moves to Kabul and onward to Peshawar with persecution by or on behalf of
Commander A. In face of that evidence
confirming the appellant's account, the Immigration Judge gave no reason for
rejecting it as implausible.
[36] We accept that
in those respects the Immigration Judge erred in law in reaching the
conclusions he did on the implausibility of the evidence that the appellant's
sister and brother-in-law fled from Mazar-i-Sharif to Kabul and onwards to Peshawar because of persecution by or on
behalf of Commander A.
The Immigration Judge's
decision - the arrest warrant
[37] Mr Devlin's
fourth submission, also developed as an aspect of his first, related to the
evidence about the issue of an arrest warrant for the appellant. The proposition initially formulated was that
the Immigration Judge made an error in fact in finding in the appellant's
evidence a discrepancy as to who obtained for the appellant the copy arrest warrant,
but the attack on the Immigration Judge's treatment of the warrant broadened in
the course of Mr Devlin's submission.
[38] The
Immigration Judge dealt with the warrant in paragraph 71 of his
determination. He said:
"So far as the arrest warrant is
concerned it is well known that in certain countries forged documents can
readily be obtained and I attach no weight to this document. It seems fortunate in the extreme that the
Appellant had sufficient contacts in Afghanistan for the document to be discovered
and then obtained and faxed to him in the United Kingdom.
The language of the document itself stating that the Appellant "is
accused of having sex with the daughter of Commander [A]" does not create in my
mind a reasonable degree of likelihood that it is authentic. Finally, I note that there is a contradiction
in the final paragraph on page 7 of his statement when he says that [J] sent
the arrest warrant to him and then that it was [J's] relative who sent it to
him; although I should say that, in itself, this is a minor discrepancy."
[39] The opening
statement in that paragraph is general in the extreme. The second sentence is not specifically
related to the account given by the appellant (and his brother) of how the copy
warrant was obtained through J's relative who worked in the police station in
Mazar-i-Sharif. The point about the
language of the document seems to us to disclose a lack of sensitivity to the
difficulties of translation. We do not
know with what formality the warrant is expressed in its original language; we
are not dealing with "the language of the document itself". Finally, the discrepancy noted by the
Immigration Judge as to how the warrant was sent to the appellant is not a
discrepancy that reveals the appellant as having changed his story over time;
it occurs within a few lines of one statement.
It is indeed, as the Immigration Judge commented, "in itself ...a minor
discrepancy". We would not have been
inclined to regard it as of any significance.
[40] Mr Stewart
submitted that the onus of showing
that a document relied upon by an appellant, such as the arrest warrant in the
present case, is on the applicant (Tanveer
Ahmed v Secretary of State for the
Home Department [2002] Imm AR 318).
[41] On the whole,
despite the comments which we have made at paragraph [29] above, we are not
persuaded that the Immigration Judge's treatment of the warrant involves more
than his assessment having been different from that which we might have been
inclined to make if we had been the fact-finding tribunal. We do not consider that it has been shown
that in this respect the Immigration Judge erred in law.
The Immigration Judge's
decision - internal relocation
[42] Mr Devlin's
final submission was that the Immigration Judged erred in law in finding that
the appellant could safely relocate in Kabul or elsewhere in Afghanistan.
The issue is discussed in paragraphs 74 to 77 of the determination. At paragraph 74 the Immigration Judge said:
"Given the lack of Convention reason
this is not, strictly, an internal flight case but an issue would arise on
whether or not he would suffer Article 3 treatment in his place of relocation."
He went on to refer to two cases, namely AM (risk - war lord - perceived Taliban) Afghanistan CG [2004]
UKIAT 0004 and AF ("war lords/commanders" - evidence expected) Afghanistan CG [2004] UKIAT 00284. In paragraph 76 he pointed
out that there was no objective evidence that Commander A exists, or has links
with General Doustom. He suggests that
there is no objective evidence that General Doustom would have significant
power in Kabul. In Paragraph 77 he
reaches the following conclusion:
"Accordingly, even if I had found the
Appellant credible (and the arrest warrant genuine) I would have held that, on
the evidence presented to me, this Appellant would not suffer Article 3
treatment in Kabul. There is no
objective evidence that the warrant would be acted on in that city."
He then suggests that the appellant might safely go to live
with his sister in Samangan.
[43] Mr Devlin
pointed out that paragraph 77 proceeds on the hypothesis that the appellant had
been found credible and the arrest warrant genuine. On that hypothesis, the warrant afforded
evidence of Commander A's existence. Moreover,
the warrant ran in the name of the Transitional Islamic State of Afghanistan,
Ministry of Interior, Police Headquarters Province of Balkh. There was nothing to suggest that it was of
limited territorial scope. Mr Stewart
accepted the force of the point about the hypothesis on which paragraph 77
proceeded. He submitted, however, that
the Immigration Judge was entitled to rely on the cases of AM and AF.
[44] We do not
consider that we require to examine the issue of internal relocation in great
detail. Much of what the Immigration
Judge said on the subject sits ill with the hypothesis on which paragraph 77
proceeds. Moreover, we entertain some
doubt as to the applicability of the guidance in AM and AF to a case in
which Commander A's role is not directly as a military commander or "war lord",
but rather as the aggrieved father of his daughter, M. It seems to us that, on the view which we
have taken of the error in law committed by the Immigration Judge in dealing
with the issue of the persecution of the appellant's brother-in-law by
Commander A in Kabul, that error undermines his conclusion on the closely
related issue of whether the appellant would be safe from such persecution in
Kabul. We need only add that there does
not, in our view, appear to be a sufficient evidential basis for the conclusion
that the appellant would be safe with his sister in Samangan.
Result
[45] We have been
persuaded that Mr Devlin's submission that the Immigration Judge fell into
error of law is in parts well-founded, but in other parts ill-founded. We have rejected the attack on the Immigration
Judge's testing of the credibility of the appellant's evidence by reference to
the objective evidence. We have also
rejected the submission that the Immigration Judge's treatment of the arrest
warrant discloses an error of law. We
are, however, for the reasons which we have explained, satisfied that the
Immigration Judge fell into error of law in his treatment of the credibility
and plausibility of the detail of the appellant's account of his relationship
with M, in his treatment of the evidence of the persecution of the appellant's
brother-in-law, and on the related issue of internal relocation. It seems to us that those aspects of the
Immigration Judge's reasoning played a material part in his over all conclusion
that the appellant's claim must be rejected.
[46] In these
circumstances we conclude that the appropriate course for us to adopt is to
allow the appeal, set aside the determination of the Immigration Judge and
remit the case to the Asylum and Immigration Tribunal for reconsideration by a
differently constituted tribunal.
