C5/2006/0626
Neutral Citation Number: [2006] EWCA Civ 993
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT NO. AS/04520/2005]
 
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 27th June 2006
 
B E F O R E:
LORD JUSTICE PILL

R
CLAIMANT/APPELLANT
- v -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
DEFENDANT/RESPONDENT

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MR D LEMER (instructed by Messrs Thompson & Co, London, SW17 0RG) appeared on behalf of the Appellant

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

J U D G M E N T 

1.	LORD JUSTICE PILL:  This is an application by Mr R for permission to appeal against a decision of the AIT dated 6 October 2005.  On a reconsideration they upheld the decision of an immigration judge dated 17 May 2005.  The immigration judge dismissed appeals by the applicant both on asylum and human rights grounds against the decision of the Secretary of State refusing to grant him refugee status and giving directions for his removal.  

2.	The applicant is a citizen of Pakistan.  He is now 33 years old, and was brought up an Ahmadi.  His father left Pakistan in 1999 and has been granted asylum here following a decision of an adjudicator.  The applicant submits, as he submitted to the judge and the tribunal, that he is at risk of persecution as an Ahmadi if he returns to Pakistan.  It is not suggested that any additional considerations arise on the Article 3 application than  under that for asylum under the refugee convention.  

3.	Not only the applicant’s father but his mother and sister fled to the United Kingdom in June of 1999.  The applicant’s father gave evidence before the immigration judge, as did the applicant. Central to the present application is that the immigration judge did not have before him the decision of the tribunal in relation to the applicant’s father, and that has led, it is submitted, to an error of law and arguably invalidates the entire decision of the judge.

4.	It was an adjudicator’s decision which permitted the admission of the applicant’s father.  The adjudicator in the father’s case set out the background circumstances and found at paragraph 40, page 89, that the father was a credible witness who had, in a religious dispute, been made subject to an arrest warrant.  The penalties were likely to be extremely serious upon conviction and he felt compelled to leave Pakistan, thereby losing substantial assets and livelihood.  

5.	Before the judge the applicant was represented by a Mr Miyan, who is a representative of the same solicitors who still act.  Before the tribunal on the reconsideration, the applicant was represented by counsel.  He is now represented by counsel, although counsel who has only recently been instructed and has not appeared in the earlier proceedings.  In his helpful submissions Mr Lemer has submitted that the adverse finding as to credibility which the immigration judge made was fatally contaminated by the absence of a consideration of the earlier adjudicator’s decision in relation to the applicant’s father.  That is the basis for the entire case now put to the court.  

6.	The father also was disbelieved by the immigration judge upon the son’s present application.  It is submitted that had the judge had before him the earlier decision, and had he given appropriate weight to the favourable view of that adjudicator as to the father’s credibility, the entire proceedings and decision before the present judge would have been different.  Arguably the result would have been different.  The alleged presence of the earlier decision in the proceedings before the judge was raised before the tribunal.  The tribunal concluded, having given detailed reasons at paragraph 8 on page 26:

“We are not satisfied that the father’s determination was before the immigration judge.”

They went on to state:
 “Thus the absence of reference to it is of no moment or significance”.  
They continued at paragraph 9:

“Even if it had been before the Immigration Judge the fact of the matter was the appellant and his father’s evidence was heard by the Immigration Judge who made his own assessment of it.”

7.	The immigration judge found comprehensively against the applicant on the question of credibility.  I will refer a little later to his decision in more detail.  He found that there was no risk to the applicant upon a return to Pakistan.  When the application first came before this court, it was of course on paper and it was considered by Latham LJ.  

8.	By that time a statement had been obtained from Mr Miyan who represented the applicant before the judge.  In the course of that statement the witness says that the earlier determination was “produced for the attention of the immigration judge”.  Thus the submission is that the immigration judge has been in error in failing to refer to it and to have regard to it.  Considering the application generally, Latham LJ stated on 17 May 2006:

“As the AIT stated, the immigration judge was fully entitled to come to the conclusions that he did as to the credibility of both the applicant and his father for any of the 16 reasons given, so that, even if the AIT was wrong in believing that the immigration judge did not have the decision in the father’s case drawn to his attention, that does not affect the result.  There is absolutely no warrant for the conclusion that either the immigration judge or the IAT misunderstood the nature of the problems facing Ahmadis in Pakistan.  It is clear that all the relevant material was considered and assessed and no issue of law arises which would justify this court in interfering with that assessment by the specialist tribunal”.

9.	Mr Lemer accepts that the tribunal were entitled to come to the conclusion they did as to whether the earlier adjudication was before the immigration judge.  They refer to the adjudicator’s  reference to the documents which were before him and to other matters, and it is accepted that the conclusion they reached was one they were entitled to reach.  It comes, then, to an application on this point to call fresh evidence.  While there is no formal application before the court I am prepared to proceed on the basis that such application has been made, and I proceed on that basis only for present purposes.  

10.	Mr Lemer submits in his helpful written statement that there has been a procedural error.  Now that Mr Miyan’s evidence is available, it is arguable that the decision of the tribunal has been incorrect in this respect and it is arguable that this court should remit the entire case for further consideration.  In support of the basic submission, to which I have already referred, that the entire fact finding exercise has been erroneous in law by reason of the absence of reference to the earlier adjudication, Mr Lemer refers to the decision of the tribunal, Collins J presiding, in Chicaiza [2002] UKIAT 01200 at paragraph 7:

“It seems to us that as a general rule previous determinations, either of the individual appellant which occurs where, for example, an asylum claim has been rejected and there is a subsequent human rights claim, or of a relation where that relation’s claim is intimately connected with the claim by the particular appellant, that those determinations should be available and taken into consideration by the adjudicator.  What weight is to be attached to them will depend on the circumstances.”

11.	Mr Lemer submits that fresh evidence can be adduced on appeal where it demonstrates what evidence was before the tribunal and where it highlights a procedural error.  In refusing permission to appeal, it is submitted that Latham LJ’s conclusion that failure to consider the father’s determination would not have affected the result was erroneous because while, as is accepted, the immigration judge was entitled to reach his own view as to the credibility of the appellant and his father, consideration of the previous determination should have formed part of the immigration judge’s decision on credibility.  He submits that, unlike in the present case, the father was cross-examined upon his own application.  He submits that the findings as to earlier events which predated the father’s departure may have had a bearing on the findings in relation to the later events, to which I will refer.  

12.	The second submission is that in making findings on credibility the judge has had insufficient regard to the in-country material, and reference is made to the Amnesty International report of 15 May 2001.  This provides objective evidence of ill-treatment of Ahmardis in Pakistan.  The relevance of this submission is that, again, the father’s credibility would have been more favourably regarded by the judge had the judge taken into account portions of the Amnesty International report dealing with the likely penalties, for example, for offences such as blasphemy.  The dispute between father and the authorities in Pakistan, or at any rate religious movements in Pakistan, arose out of an attempt to set up an Ahmadi mosque.

13.	That all turns upon the relevance of the father’s evidence, and its acceptance in his own case, to the decision of the immigration judge.  I now turn to that determination of the immigration judge.  It appears at page 38 of the smaller bundle.  The judge correctly set out the background.  He referred to the circumstances of arrival in the United Kingdom, which was on a false passport, and to the fact that there was a three week delay between arrival and the claim for asylum.  He refers to the events in 1998 and 1999 involving the applicant’s family.  He refers in detail to the country information and in my judgment his consideration of that cannot be faulted.  He states at paragraph 7 that the information:

“confirms a danger of persecution to the Ahmadi in Pakistan.  There appear to be something in the region of four million of them in the country and they have a purpose built city in Rabwah.  It has a population of 35,000 Ahmadi but even there Islamic hostility is manifest”.

Considerable detail is given.  The judge states later in the paragraph that many Ahmadi have been imprisoned “They are prohibited from holding conferences and proselytising is illegal”.  The judge refers to a case [2003] UKIAT 00198A where the tribunal enjoined adjudicators:

“to assess the real risk of serious harm to Ahmadi appellants by looking at the manner and persistence of their evangelising and determining whether a claim that it was public and insistent is supported by the history of problems encountered”.

14.	In my judgment the consideration of the in-country evidence and the consideration of the oral evidence before him, and of the evidence in the particular case, cannot be faulted, considering, as he did, the evidence in the context of the in-country material.  It is right to say that the adjudicator did not find the account of the father’s problem to be credible (paragraph 8), and that of course is the central point relied on.  However, the judge does give particulars at paragraph 9.  He states that there is no explanation for the applicant being targeted for arrest at the time his father was and: 

“It is difficult to understand why the police failed to do it on a subsequent day.  His father, when he gave evidence, told me that he felt he could leave his son in Pakistan to look after the business, which is incompatible with the Appellant being wanted.  I do not believe that the Appellant was wanted for arrest.”

15.	The judge goes on to state that the applicant relocated in Karachi, where he lived for three and a half years without interference or molestation.  He refers to an incident, to which the father also referred in his evidence, of the applicant’s car being pulled over and his being threatened at gunpoint.  The judge took the view that it should be regarded as “an ordinary criminal offence”.  He added “I regard this as a robbery adapted for the purpose of an asylum claim”.  The judge records that the applicant married an Ahmadi lady in 2001.  That suggests he found that “an Ahmadi who lives and operates quietly in Karachi is able to do so without being persecuted”.  

16.	The judge then considered the applicant’s claim that he was a vigorous proselytiser and would continue to be such, in the face of all hostility, in Pakistan.  As to that the judge concluded: 

“His manner before me was of a quiet diffidence, although I recognise that style may change when a man is aflame with theological fervour.  The facts in this case provide no evidence of aggressive evangelism, quite the contrary.  I find him to be a witness of poor credibility whose evidence I treated with great caution.  

The applicant had alleged that in the later years in Karachi, the applicant began preaching the Ahmadi faith to friends in his own home; that on three occasions a group of mullahs visited him and sought to convert him and on the third occasion assaulted him.  He was arrested overnight, but a friend paid a bribe to the police who released him.  That evidence was not accepted by the judge.  

17.	The judge at paragraph 14 goes on to query why the applicant, if he owned his own passport, did not use it to leave Pakistan; why he went to the trouble of obtaining a false passport, and did not claim asylum on arrival but waited nearly three weeks.  The judge concluded:

“I view the claim to have been persecuted as a fabrication directed to an ambition to settle in the United Kingdom”.

18.	Paragraph 15:

“Because the Appellant is a witness whom I find not to be credible I also reject his evidence relating to being approached in June 2003 and identified for conversion.  However if that aspect of his account is true it goes to show that he is an Ahmadi of quiet spirit who does not assail others with his religious opinion.  I find that the Appellant is not at risk on return”.

19.	I regard the judge’s determination and reasons as showing every indication of a most careful consideration, both of the in-country evidence and of the oral evidence before him in the context of that in-country evidence.  The tribunal took the same view.  Their decision appears at page 25 of the smaller bundle.  They too carefully set out the background as recorded by the immigration judge.  I have already referred to their findings as to whether the father’s determination was before the immigration judge, and to what they found resulted from that.  They stated at paragraph 10:

“We find on a reading of the determination that the Immigration Judge reached perfectly sustainable conclusions in relation to the appellant, the kind of Ahmadi faith he practiced and the manner in which he practiced on a discreet and private basis”.

Paragraph 12:

“We do not find there is any sustainable criticism of the approach to the fact finding undertaken by the Immigration Judge or that the Immigration Judge failed to deal with the key elements of the claim”.

20.	Reference is made to the judge’s consideration of the in-country material and to the submission, properly made and repeated by Mr Lemer this morning, that the absence of a consideration of the father’s adjudication is a fatal flaw in the decision making process in this case.  The tribunal gave a number of reasons why that was not so.  Amongst them, at paragraph 20, is that the judge heard both appellant and father and was entitled to take his own view of their credibility.  That much is accepted by Mr Lemer and rightly so but does not prevent his underlying submission that the entire approach to credibility has been erroneously affected by the absence of a consideration of the earlier adjudication.  

21.	However, the fourth point is also material in my judgment.  At paragraph 21:

“Much of the appellant’s claim was after arising events of which his father could be of no material assistance.”

I regard that as an important consideration in this case.  I respectfully agree with the statement of Collins J, to which reference has been made, as a general proposition.  However, it must be approached on a case by case basis.  This was a case where there were issues as to what happened when the father left in 1999 but where, on the father’s own evidence, it was with an intention that the applicant should run the family business, that it was decided he should remain, and it was extremely unlikely that the father would have left him there on that basis if, as a result of the events of 1998 and 1999, the applicant was at risk.  Thereafter the credibility question revolves around the applicant, and I have referred to the material which the judge was fully entitled to take into account: of relocation, of several years’ peaceful residence, of a marriage to an Ahmadi lady; and of the continuation of the business.  

22.	In my judgment the decision in relation to the father is remote from the issue which the judge in the present case had to decide, and the judge was in a position fully to consider the question of credibility in the light of the material before him.  I accept that there may be cases where, if the wrong starting point is taken as to credibility, that is without having regard to an earlier decision, then the later consideration may be erroneously affected to the extent of being an error of law.  However, in this case the quality of the judge’s approach to the evidence and of the way he has set matters out and reasoned them leaves me in no doubt, as it left Latham LJ in no doubt, that credibility has been sufficiently considered and that the judge was entitled to reach the conclusion he did.  There was in my judgment no error of law in the judge’s finding.  

23.	I have dealt with the merits of the case on the assumption  I said I made for present purposes, that Mr Bayat’s evidence should be admitted.  However, I do have to add that in my judgment it should not properly be admitted in this case.  Of course it is, in the end, the question of justice to the applicant which is important.  But there is no sufficient explanation for the late production of this statement.  Moreover, I find it extremely difficult to accept that the immigration judge, in a determination of the quality which I believe this one had, would have failed to refer to a relevant document which was before him.  I agree with the approach of Latham LJ on that issue too.  

24.	Mr Lemer has said all that could be said on behalf of the applicant.  In my judgment there is no arguable error or law demonstrated.  It is not arguable that, upon further consideration, this court would give relief to the applicant and for the reasons I have given, his application must be refused.

Order:  Application refused.