Khan v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLORD JUSTICE WARD,Lord Justice May,LORD JUSTICE MAY,LORD JUSTICE CARNWATH
Judgment Date02 April 2003
Neutral Citation[2003] EWCA Civ 530
Date02 April 2003
CourtCourt of Appeal (Civil Division)
Docket NumberC1/2002/2232

[2003] EWCA Civ 530

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Before:

Lord Justice Ward

Lord Justice May and

Lord Justice Carnwath

C1/2002/2232

Habibullah Khan
Appellant
and
The Secretary of State For The Home Department
Respondent

Mr Rick Scannell (instructed by Messrs Luqmani Thompson & Partners, London N22) appeared on behalf of the Appellant.

Mr Parishil Patel (instructed by the Treasury Solicitor, London SW1) appeared on behalf of the Respondent.

LORD JUSTICE WARD
1

I will ask Lord Justice May to give the first judgment.

LORD JUSTICE MAY
2

This is an appeal by Habibullah Khan, with permission granted by Kay LJ, from a decision of the Immigration Appeal Tribunal notified on 15th August 2002. The Immigration Appeal Tribunal had refused permission to appeal, saying that the grounds of appeal disclosed no point of law which would have made a material difference to the outcome of the appeal; and that the points of fact then canvassed were all matters which were fully argued before the Tribunal.

3

The appeal this morning has taken an unexpected turn. At a very late stage there was produced before the court documents in Bangladeshi (I will explain in a moment how they become relevant) and an English translation which gives, assuming it is correct, very material additional information to that which was before the Immigration Appeal Tribunal. For my part, for reasons which will appear, I would have no hesitation in admitting this material for the purposes of this court's consideration; and it does, as will appear, have a summary effect on the outcome.

4

The appellant is a stateless Bihari who came to the United Kingdom from Bangladesh, where he had been habitually resident. Biharis are non-Bengali Muslims who emigrated to what was formerly East Pakistan during the 1947 partition of British-ruled India. Most Biharis supported Pakistan during Bangladesh's 1971 war of independence. They later declined to accept Bangladeshi citizenship and asked to be repatriated to Pakistan. Between 1973 and 1993 a large number of Biharis did move back to Pakistan. The status of those who remain in Bangladesh remains unresolved. They have not been granted Pakistani citizenship, although they can apply for Bangladeshi citizenship.

5

The appellant is one such technically stateless Bihari. He was born on 1st October 1969. He arrived in the United Kingdom on 13th June 2001 in a lorry container. He was seen by immigration officials and immediately claimed asylum. On 22nd June 2001 the Secretary of State refused his claim for asylum. He appealed to an adjudicator and Mr N.H. Goldstein heard his appeal on 31st January 2002. The adjudicator dismissed his appeal in a determination promulgated on 15th February 2002.

6

The appellant's claim for asylum was made both under the Refugee Convention and the Human Rights Convention. Factually, it centred on the events of 14th August 2000. On that day there was a demonstration in Khulna organised by a man called Afzal Khan, the local leader of the Biharis, and the local branch of the Pakistani Muslim League, an organisation with which the appellant's father had been concerned. The appellant attended this demonstration, at which the demonstrators raised a Pakistani flag. Fighting broke out between members of the Pakistani Muslim League, the police and the Awami League, who were the party in government at the time. Injuries were sustained on both sides. The appellant ran away during the fighting. His case was that after this demonstration criminal charges were laid against seven Biharis, including himself, and warrants of arrest were issued.

7

The appellant did not immediately leave Bangladesh after this incident. He in fact left on 3rd December 2000. He gave an account of what he was doing in the meantime in his evidence to the special adjudicator. He also gave an account of his journey, apparently by land, all the way from Bangladesh to the United Kingdom between December 2000 and 13th June 2001, when he arrived here. In short, the reason which he gave for leaving Bangladesh was that he learnt that he was one of those who had been charged and that the police were looking for him. He believed that he had been charged because of his family connections. He was charged with assault on members of the Awami League. He received advice from a lawyer and help from an agent. It was agreed with Bihari leaders that he should leave because it was thought that if he were arrested he would not get bail and it was very likely that he would not get a fair trial.

8

The special adjudicator heard evidence from him and considered some documents which apparently came from a Bangladeshi court. The exact nature of those documents was unclear to the adjudicator. The special adjudicator concluded, having correctly directed himself as to the law and as to the burden and standard of proof, that the core of the appellant's account was credible, although the special adjudicator believed that the appellant had exaggerated some parts of his account, particularly in relation to claims that he had learnt that the police continued to look for him.

9

The exact nature of what appeared to be Bangladeshi court documentation was unclear. It was agreed that these documents did not include charge sheets. But the appellant's name was shown on each of them as apparently indicating that he was wanted for reasons which it was accepted by the appellant's representative before the adjudicator could not be accurately determined. The documents appeared to include the statements of witnesses who claimed that the appellant, among others, had committed some form of criminal offence. The special adjudicator considered that some of these could be described as depositions of potential prosecution witnesses.

10

On 3rd October 2001, after the Secretary of State had refused the appellant's asylum claim but before the hearing before the special adjudicator, there was a general election in Bangladesh. The Awami League was replaced in government by the BNP Alliance, which won nearly two-thirds of the parliamentary seats.

11

The essence of the appellant's claim for asylum was that if he were to return to Bangladesh he would be detained and charged. He would not be granted bail. He would be detained on remand in what he claimed would be inhuman and degrading conditions in a category C Bangladeshi jail for an excessive period pending his trial. He feared that he would then not receive a fair trial and that any punishment would be excessive.

12

The special adjudicator considered these questions. He considered independent documentary material about the state of affairs in Bangladesh following the October 2001 elections. The documents made it clear that Bangladesh is a parliamentary democracy with broad powers exercised by the Prime Minister. There is an active political opposition, although violence is a pervasive feature of politics. The judicial system in Bangladesh involves a court system with two levels. The lower court consists of magistrates. The Supreme Court is divided into the High Court and the Appellate Court. Trials are in public. The law provides the...

To continue reading

Request your trial
12 cases
  • E v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 February 2004
    ...State [2003] INLR 249. This more flexible approach has been followed without detailed argument in several other cases, including: Khan v Secretary of State [2003] EWCA Civ 530; R (Tataw) v Secretary of State [2003] EWCA Civ 925, [2003] INLR 585; Polat v Secretary of State [2003] EWCA Civ 10......
  • R (Bagdanavicius) v Secretary of State for the Home Department
    • United Kingdom
    • House of Lords
    • 26 May 2005
    ...Haile v Secretary of State for the Home Department [2002] Imm AR 170 and Khan v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 530 (para. 71); (5) However, the fresh evidence, even if credible, had no materiality to the essential issue of the case, namely sufficiency of prote......
  • R (Bagdanavicius) v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 November 2003
    ...22; following: Turgut v. SSHD [2000] Imm AR 306, CA, per Schiemann LJ at 323–324; Haile v. IAT [2002] Imm AR 170, CA; and Khan v. SSHD [2003] EWCA Civ 530, CA, at paras. 26, 30 and 31. 72 What all that does for the integrity of our present system of judicial review, including what Lord Walk......
  • R (Iran) v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 July 2005
    ...an analysis of relevant case law on the power to admit new evidence. It concluded with the observation that the case of Khan v SSHD [2003] EWCA Civ 530 that gave rise to the problem summarised in (viii) above was a good example of the need for a residual ground of review for unfairness aris......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT