K (Risk – Sikh - Women)
| Jurisdiction | England & Wales |
| Judge | Ms. D. K. GILL |
| Judgment Date | 29 August 2003 |
| Neutral Citation | [2003] UKIAT 57 |
| Court | Immigration Appeals Tribunal |
| Date | 29 August 2003 |
[2003] UKIAT 57
IN THE IMMIGRATION APPEAL TRIBUNAL
The IMMIGRATION ACTS
Ms. D. K. Gill (Chairman)
Mrs. M. L. Roe
For the Secretary of State: Mr. A. Hutton, Senior Home Office Presenting Officer.
For the Respondent: Mr. J. Patel, of Counsel, instructed by Malik & Malik Solicitors.
K (Risk — Sikh — Women) Afghanistan CG
The Secretary of State Appellant has appealed, with leave, against the determination of Dr. A E Thorndike, an Adjudicator, who (following a hearing on 20th February 2003 at Rotherham) allowed the appeal of Mrs. K (who we shall hereafter refer as the Claimant) on asylum and human rights grounds against the Secretary of State's decision of 15th October 2002 to give directions for her removal to Afghanistan as an illegal entrant.
The Claimant is a Sikh national of Afghanistan. The Secretary of State proposes to remove her to Afghanistan. Her niece and her son (who are both under the age of 10 years) and her widowed mother-in-law (who is in her late 60s) claim as her dependants.
The Claimant and her three dependants arrived in the United Kingdom together, on 5th September 2002. At the start of their journey from Afghanistan, they had been separated by their agent from the remaining three members of their family – namely, the Claimant's husband, her young daughter and her brother-in-law — because the agent was not able to arrange for all seven to travel together. The evidence before the Adjudicator was that the Claimant did not know where her husband or the others in his group were.
The basis of the Claimant's claim before the Adjudicator was that she and her family had suffered persecution in Kabul, where they had lived, on account of their Sikh religion. They had been persecuted by members of the Northern Alliance after the fall of the Taliban. In November 2001, her father-in-law was beaten by members of the Northern Alliance. He was told to convert to Islam. The same men went to their house in December 2001 to see if he and other male members of the family had converted. When they learnt that they had not done so, they bludgeoned the father-in-law and brother-in-law to death. The Claimant feared returning to Afghanistan because she still feared persecution on account of her religion / ethnic background. In addition, she would have to be a prostitute in order to support her dependants. This is the fate of women who have no male support.
The Adjudicator allowed the appeal on asylum and human rights grounds. He found the Claimant to be entirely credible. He stated that his “consuming concern” was that, as a woman without male support in Kabul, without a husband and a father-in-law, she would suffer persecution and treatment contrary to Article 3. He considered that her only real option would be prostitution. He noted the Human Rights Watch World Report and the Womankind Report in the Claimant's bundle. He noted that, in paragraph 4 of the UNHCR's note, the UNHCR had stated that “also deserving of particular attention are asylum applications of members of certain groups with protection vulnerabilities”. He considered that the Claimant comes within the Refugee Convention “as a woman without male support”. He considered that the prospect of her parents being in Afghanistan was only a possibility.
The grounds of application for leave to appeal to the Tribunal assert that:
i) the Adjudicator had erred in finding that there was an applicable Refugee Convention reason. Furthermore, if he considered that she was a member of a particular social group, he erred in not giving sufficient reasons.
ii) the Adjudicator had erred by speculating as to what would happen on return to Kabul. He had not taken into account the fact that her parents were still in Kabul when she left, that the Sikh community is tight-knit in Kabul and that she would be able to seek assistance from her own community, if not her family.
iii) that the Adjudicator had erred in not considering the objective evidence fully. It is asserted that this shows that there are 40,000 widows in Kabul alone, that 36 % of the population in Afghanistan as a whole are widows and that the NGO (non-governmental organisation) community are beginning to recognise the needs of widows.
Permission to appeal to the Tribunal was granted because the Vice-President granting permission considered that the grounds were arguable.
At the commencement of the hearing before us, Mr. Patel informed us that he had not received any instructions as to the whereabouts of the Claimant's husband. Before the hearing got underway, Mr. Patel raised a separate issue.
Mr. Patel contended that there was no appeal before us, because the application for leave to appeal was lodged out-of-time. He had only become aware of this after his arrival at the hearing, when Mr. Hutton informed him that the Home Office received the Adjudicator's Determination on 11th March 2003. This means that the time limit expired, according to Rule 18(2) and Rule 48(2)(a) of the 2000 Procedure Rules, on 25th March 2003. The application for leave to appeal was only faxed to the Tribunal on 26th March 2003. Mr. Patel submitted that the provisions of Rule 49 were not applicable because the Claimant had not suffered any prejudice by the late application for leave to appeal. He could not refer to any authority for the proposition that the grant of leave by the Vice President could be set aside by the Tribunal. He asked for the proceedings before us to be stayed, so that he could make an application to the High Court for the grant of leave to be quashed. He confirmed that the Claimant had not been prejudiced by the late application and that the Claimant, his instructing solicitors and he himself had proceeded to prepare themselves for the hearing on the assumption that there would be a full substantive hearing before Tribunal at the hearing. He only realised that there was an out-of-time issue after he had spoken to Mr. Hutton on his arrival at the hearing centre.
Decision on the out-of-time issue raised: Given that leave had already been granted, the Tribunal has jurisdiction to hear the substantive appeal. The Vice-President who granted leave had jurisdiction to extend the time for the lodging of the application for permission to appeal. There was no reason to suppose that he had not directed his mind to the fact that the application was one day late. However, in the event that he had not directed his mind to this issue, the time limit for lodging the application was extended at the hearing, for the following reasons:
The relevant Rule in this regard is Rule 16(2) of the 2003 Procedure Rules, given that the time limit was extended at the hearing at a time when the 2003 Procedure Rules were already in effect. The fact that the application was lodged only one day out of time does not, of itself, amount to a special circumstance within the meaning of Rule 16(2). However, it is a relevant factor. Furthermore, the Claimant and her advisers had proceeded on the assumption that leave had been validly granted at all times since they were notified of the grant of leave until just before the hearing got underway. If the situation had been reversed and it was the Secretary of State who was seeking to rely on the timeliness issue in similar circumstances, it is difficult to conceive that the time limit would not be extended, since otherwise the applicant would be deprived of a hearing which he or she had been led to believe that he/she was going to have. The same considerations apply when it is the Secretary of State who stood to lose out on a hearing which he (and indeed, the Claimant) was led to believe would take place. Mr. Patel confirmed that the Claimant had not suffered any prejudice by the late application. Whilst it is accepted that the provisions of the rules for curing defects do not apply, the fact that the Claimant had not suffered any prejudice was also a relevant factor in deciding whether the time limit should be extended.
We then proceeded to hear submissions from both parties on the substantive appeal.
Mr. Hutton relied on the grounds of application. The Adjudicator had to given any reasons for finding that there was an applicable Refugee Convention reason. Women returning to Afghanistan without male support are not a particular social group. There has been an improvement in the security situation in Kabul. He referred us to the October 2002 CPU report – paragraphs 6.76 and 6.78 and paragraphs 5.31 to 5.32. He also referred us to the CIPU report dated April 2003 – paragraphs 5.40 to 5.49. He submitted that, in the event that the Claimant did experience any problems on return to Kabul, there would be sufficiency of protection. The Adjudicator had speculated in considering that the Claimant would be forced to prostitute. This appeared to be based on page A96 of the Claimant's bundle. However, page A94 of the Claimant's bundle states that women are permitted to work outside the home. The Adjudicator also speculated in considering whether her parents would still be in Kabul. There is simply no evidence about this. Paragraphs 6.36 to 6.39 of the CIPU report of April 2003 deal with the position of Sikhs in Afghanistan. The Claimant would be able to find work in the Sikh community. The general humanitarian condition in Kabul is dealt with paragraphs 6.160 to 6.164 of the CIPU Report dated April 2003. Mr. Hutton also relied on the Tribunal's Determination in Mohamed Arefi v. SSHD [2002] UKIAT 05683.
In reply, Mr. Patel carefully took us through the objective evidence. He asked us to bear in mind the fact that the Claimant would be returning to Afghanistan with her dependants, none of whom would be able to help her to support them. He also asked us to...
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