Ahmed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | P. R. Moulden |
| Judgment Date | 19 February 2002 |
| Neutral Citation | [2002] UKIAT 439 |
| Court | Immigration Appeals Tribunal |
| Date | 19 February 2002 |
[2002] UKIAT 439
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Collins (President)
Mr. C. M. G. Ockelton (Deputy President)
Mr. P. R. Moulden (Vice-President)
AHMED (Documents unreliable and forged) Pakistan *
The Appellant, who is a citizen of Pakistan, appeals with leave against the determination of an Adjudicator (Mr. P. Digney) dismissing his appeal against the Respondent's decision to give directions for his removal from the United Kingdom and to refuse him asylum.
Ms S Panagiotopoulou of Counsel, instructed by Adams, Solicitors, appeared for the Appellant. Mr. C. Trent, a Home Office Presenting Officer, represented the Respondent.
This is a starred case which is intended to give guidance on the questions raised and should be followed in preference to any other Tribunal decisions which touch on these issues. This decision should therefore be regarded as authoritative and is binding on all Adjudicators and Tribunal Chairman.
The Appellant arrived in the United Kingdom on 1 May 2000. He claimed asylum on 4 May 2000. The Respondent's decision is dated 23 April 2001. The Adjudicator heard the appeal on 9 August 2001 and his determination was promulgated on 14 August 2001. Leave to appeal was granted on 12 November 2001.
The Appellant claimed to fear persecution from the authorities in Pakistan because of his membership of the MQM, which he joined in 1997. He had attended rallies since 1993. In 1998 he became the general secretary of the party in his area after his brother, who held the same post before him, was killed. His father was an area controller in Karachi. In December 1999 unknown people murdered a member of the MQM breakaway group, MQM (Haqiqi). The Appellant was named as one of four suspects. He was arrested and detained for three days before being released because of lack of evidence. In February 2000 two further suspects were arrested and one was reported killed attempting to escape. Subsequently the Appellant was arrested on a number of occasions, for a few hours only each time. He was arrested again, in connection with the murder, granted bail but after another suspect was killed he was advised to flee. His party arranged for him to leave the country. He said that the police still wanted to arrest him for the suspected murder. He produced a FIR, an arrest warrant, a letter from his party, the MQM, dated 27 February 2001 and newspaper cuttings.
The Adjudicator found that the arrest warrant and the FIR were not likely to be genuine. He gave no weight to the letter from the MQM. It was unlikely that the Appellant's friend would have been able to obtain them so easily or at all. His account of how he did so was vague. The Appellant said that his family received a number of warrants, but he did not produce any of them. There was no reason why a warrant should have been issued on 3 January 2001. If it had been, it was difficult to see how the Appellant's friend could have heard of it. If the FIR was genuine it was not likely that the Appellant would have been released so easily. The Adjudicator said that it was for the Appellant to persuade him that the documents were genuine, to the usual low standard, and he had not done so.
The Adjudicator went on to consider whether the Appellant's account of events could be true even if the documents were false. Quite properly he considered whether the Appellant used false documents to strengthen a genuine case.
On the country evidence before him the Adjudicator found that the police arrested active members of the MQM arbitrarily and many were killed, particularly in the period before the coup of October 1999. After that date ill-treatment and killings decreased. Whilst MQM activists were ill treated and held for long periods the Adjudicator found that the Appellant was not an activist. Furthermore, if there had been a murder charge against him, even a false one, he would not have been released so easily. This would also indicate that he was not perceived to be a MQM activist. The Adjudicator accepted that the Appellant had been arrested on two occasions but concluded that, because of his speedy release, the authorities had no serious interest in him. If he were suspected of murdering a member of the opposing group it was most unlikely he would have escaped unscathed.
The Adjudicator concluded that the Appellant, who was twice arrested and twice released speedily and without charge, did not have any outstanding warrants for his arrest. His political involvement was at the lowest end of the scale. There was no reason to suppose that he was now of any interest to the authorities. The country evidence showed that, following the coup, the position of MQM members more active than the Appellant had actually improved. Somebody in the Appellant's position would not be at risk.
The Adjudicator went on to find that, even if he were wrong in these conclusions, an individual such as the Appellant, who was not “high profile”, would be safe if he relocated to another part of the country. The Appellant had not established either a well-founded fear of persecution for a Convention reason or that his human rights would be infringed.
The grant of leave to appeal records grounds alleging that the Adjudicator's rejection of the authenticity of the warrant and FIRs was based on an approach which incorrectly placed the burden on the Appellant. The parties' attention was drawn to the apparent tension between the approach in ex parte Shen [2000] INLR 389 QBD (CO-3808-98) and that in ex parte Mukhtar Shala Mohammed [2001] Imm AR 162.
Ms Panagiotopoulou submitted that the Adjudicator erred in law when he said that it was for the Appellant to persuade him that the documents were genuine to the usual low standard. What he should have done, as soon as the Respondent alleged that they were forgeries, was to hold that it was for the Respondent to establish this to the higher civil standard. Ms Panagiotopoulou appeared for the Appellant before the Adjudicator and informed us that, even though it was not recorded in the determination, Counsel who appeared for the Respondent alleged that the documents were forgeries. Mr. Trent confirmed that his papers said that the authenticity of the documents was challenged. Ms Panagiotopoulou submitted that the Adjudicator allowed his findings in respect of the documents to cloud his other findings. The documents were submitted to the Home Office on 23 July 2001 and, before the hearing, Ms Panagiotopoulou asked the Presenting Officer if the Respondent wanted more time to consider the documents. The offer was not taken up. Mr. Trent accepted that often the Respondent did not arrange for documents to be checked in the country where they purported to have been issued.
In reply to our questions Ms Panagiotopoulou accepted that the Appellant had to establish prima facie evidence that a document could be relied on. However, the Appellant was not present when the documents were obtained and in the circumstances could not give details of how this was done. Although she could not direct us to the evidence to support the contention Ms Panagiotopoulou submitted that, even though the arrest warrant was against an individual whose names were not identical to the Appellant's, this was likely to have been an error by whoever translated the document. It was accepted that the Appellant had not absconded from official custody, but was released unconditionally. There was no explanation for the fact that one of the documents indicated a payment of 50,000 rupees (approximately £500). Ms Panagiotopoulou submitted that the country evidence showed that bribes and/or influence could persuade the police to bring false charges. An individual's release could be procured in the same way. The Appellant's case was that the MQM (Haqiqi) were acting in conjunction with the authorities and in particular the police. The Appellant feared what the police would do to him if he returned. The Adjudicator had not made clear findings as to what happened to the Appellant in custody, although he accepted that the Appellant had been arrested and detained. We were asked to allow the appeal to the extent of remitting it for hearing afresh before another Adjudicator.
Mr. Trent submitted that there were four possible scenarios for the documents in question. 1. The documents and the information they contained were genuine. 2. Both the documents and their contents were false. 3. The document was genuine but the information it contained was false. 4. The information was genuine but the document was false. Even if the Respondent had carried out investigations the information he obtained was not likely to be conclusive. Often it was not possible for the Respondent to verify documents. Even if the Respondent did not allege that the documents were forgeries it did not mean he accepted they were genuine. There was nothing in this warrant to say that it was a re-issue of an original warrant. The Appellant had ample time within which to obtain evidence to back up the warrant. For example he could have obtained an affidavit, perhaps from a local lawyer. He had not done so.
Mr. Trent submitted that the Adjudicator's conclusions were open to him on the evidence. Unless there was a clear allegation of forgery the burden of proof did not transfer to the Respondent. We were asked to dismiss the appeal.
The Appellant's bundle contains reports of
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i. Ex parte Shen (see ante) heard in May 2000 and
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ii. Ex parte Mukhtar Shala Mohammed (see ante), heard in July 2000, to which we have already referred, together with
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iii. A, B, C, and D v Secretary of State for the Home Department (HX/61156/96), heard in July 1999.
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iv. Fodjo v Secretary of State for the...
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