R (Javed) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD Phillips, MR |
| Judgment Date | 17 May 2001 |
| Neutral Citation | [2001] EWCA Civ 789 |
| Docket Number | Case No: C/2001/0291 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2001 |
[2001] EWCA Civ 789
Lord Phillips M.r.
Lord Justice Peter Gibson
Lord Justice Latham
Case No: C/2001/0291
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Turner
Royal Courts of Justice
Strand, London, WC2A 2LL
Nigel Pleming, QC and Steven Kovats (instructed by The Treasury Solicitor for the Appellants)
Richard Drabble, QC and Eric Fripp (instructed by Powell & Co for the First Respondent)
Nicholas Blake, QC and Edward Grieves (instructed by Bhogal & Lal for the Second Respondents)
This is the judgment of the Court.
These appeals arise out of applications made by three citizens of Pakistan for judicial review of decisions by Special Adjudicators dismissing their appeals from removal directions made by the Secretary of State. The Removal Orders were consequent upon the refusal of the Secretary of State to accept that any of the three applicants was entitled to asylum on the basis that he had a well founded fear of persecution were he to be returned to Pakistan. Each challenged the decision of the Special Adjudicator in his case on the grounds that the decision was irrational. Turner J on the 19th January 2001 accepted, as had in the case of Abid Ali been conceded by the Secretary of State, that the decision of the Special Adjudicator in each case was irrational, and remitted each to be reconsidered by a fresh Special Adjudicator. But the applicants further challenged the procedure by which their appeals had been heard. The case of each had been certified by the Secretary of State under the provisions of paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993, as amended by the Asylum and Immigration Act 1996, ("the Act") and the Asylum (Designated Countries of Destination and Designated Safe Third Countries (Order 1996) ("the Order"). The effect of certification was to subject the applicants to an expedited procedure which, inter alia, deprived the applicants of any right of appeal from the Special Adjudicator. Turner J upheld the claim of each that, in so far as the Order designated Pakistan as a country return to which could justify certification, it was invalid. The Secretary of State appeals against that aspect of Turner J's judgment.
Paragraph 5 of Schedule 2 to the Act provides:
"(1)
This paragraph applies to an appeal by a person on any of the grounds mentioned in sub-sections (1) to (4) of Section 8 of this Act if the Secretary of State has certified that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which:
(a) sub-paragraph (2), ( 3) or (4) below applies; and
(b) sub-paragraph (5) below does not apply.
(2) This sub-paragraph applies to a claim if the country or territory to which the appellant is to be sent is designated in an Order made by the Secretary of State by Statutory Instrument as a country or territory in which it appears to him that there is in general no serious risk of persecution.
(5) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent .
(8) The first Order under this paragraph shall not be made unless a draft of the Order has been laid before and approved by resolution of each House of Parliament."
The Order in question was the first Order made pursuant to paragraph 5(8) of Schedule 2 to the Act. It provides:
"(2) The following countries are designated as ones in which it appears to the Secretary of State that there is in general no serious risk of persecution in: Bulgaria, Cyprus, Ghana, India, Pakistan, Poland, Romania ."This list of countries is known colloquially as 'the White List'.
The questions which we have to determine are:
i) To what extent is it open to the Court to review the validity of the Order, having regard to the fact that it has been approved by the affirmative resolution of each House of Parliament?
ii) In the light of the answer to (1), was Turner J. correct to hold that the Order was invalid?
In order that some flesh may be put on the bare bones of the legal argument, we propose to state shortly the factual basis of each applicants' case, although the particular facts are of no direct relevance to the issues that we have to determine.
Asif Javed is a member of the Ahmadi community. He claimed that he had been persecuted on that ground from the age of 15. His account was that he had first been expelled from school on the grounds that he had been attempting to explain his Ahmadi beliefs to fellow pupils. Thereafter he was harassed by former pupils from the school and later attacked and severely injured. His attackers informed the police that he had been the aggressor. He was told that if he wished to avoid arrest and imprisonment he should renounce his faith. He therefore left the area. Further allegations were then made that he had been preaching, as a result of which he felt afraid to return to his home. When he returned for the funeral of his sister, the police tried to arrest him, but he escaped. Back with his aunt, he was attacked and wounded by a man with a knife. He was eventually able to leave Pakistan with a passport obtained by his father. His claim for asylum was based on persecution by non-state agents which the authorities either tolerated, or against which they were unwilling or unable to offer protection.
The Secretary of State refused asylum and ordered his removal on the grounds that his account was not credible. He further stated that although he was aware that discrimination took place against Ahmadis, in general the judiciary remained independent and there was no systematic persecution of religious minorities. The Special Adjudicator hearing the appeal disbelieved Asif Javed's account. To support his account that he was wanted by the police he produced a report which purported to emanate from a named police station. The British High Commission, on inquiry, suggested that no such police station existed. The Special Adjudicator considered that this undermined Asif Javed's account. It was subsequently established that the police station does in fact exist. As already indicated the Secretary of State has accepted that, on its individual merits, the matter must be remitted to a fresh Special Adjudicator to reconsider the evidence.
Abid Ali is a Sunni Muslim. His case was that he was a member of the Pakistan Force of the Companions of the Prophet, a militant Sunni organisation. He also claimed membership of the Sipa-e-Sahaba which opposed the government of Benazir Bhutto. He had been involved in numerous demonstrations, processions and protests which resulted in his being convicted and sentenced on a number of occasions. He claimed that he had been beaten up several times in prison and feared being killed were he to be returned to Pakistan. The Special Adjudicator concluded, that so far as his arrest and imprisonment were concerned, this was the result of his violent and criminal activity, and that he had not received unreasonable sentences. He also rejected the submission that the Sunni Muslims, who are in the majority in Pakistan, were subjects of persecution by the minority Shia; further, he concluded that there was no evidence that the authorities were unable or unwilling to offer protection to the Sunni Muslims from any attacks by the Shia Muslims. The Special Adjudicator accepted Abid Ali's account of being beaten, but, despite this, rejected the submission that he had established a reasonable likelihood that he had been tortured in Pakistan so that sub-paragraph (5) of paragraph 5 of Schedule 2 to the Act applied. Turner J. concluded that neither the Secretary of State nor the Special Adjudicator had given any proper reasons for finding that sub-paragraph (5) did not apply and accordingly that the application should succeed. As in the case of Asif Javed, the Secretary of State does not seek to disturb the Judge's conclusion in this respect.
Zulfiqar Ali claimed to have been a former supporter of the Mohajir Quami Movement ("the MQM") which was opposed to the Pakistan People's Party. As a result of his association with the MQM, Zulfiqar Ali claimed that he had been detained and ill treated and was forced to join a breakaway group known as MQM-H which was used to persecute MQM members. He feared persecution because of his refusal to co-operate with the army in their clandestine use of MQM-H. In support of his account, he produced a First Investigation Report (FIR) naming him as a person against whom charges were to be brought. He further produced newspaper articles which identified a person bearing his name, as a person who was wanted in connection with the murders of eight members of the MQM. The murders had, however, been committed after Zulfiqar Ali had arrived in the United Kingdom. The Special Adjudicator accepted that the account could be correct, but rejected the claim that Zulfiqar Ali was the person wanted in connection with the murders, and was not satisfied that the FIR was a genuine document. He accepted that Zulfiqar Ali had been ill treated by the army and the police, having his nose broken and having been kept awake for two or three days at a time. Neither the Secretary of State nor the Special Adjudicator considered that this amounted to torture. Turner J...
To continue reading
Request your trial
- AXA General Insurance Ltd, Petitioners
-
Stagecoach East Midlands Trains Ltd and Others v The Secretary of State for Transport
...it is otherwise unlawful, irrespective of the views to that effect expressed by Ministers or others in Parliament: R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789, [2002] QB 129 at 33, [2001] 3 WLR 323: “… Legislation is the function of Parliament, and an Act o......
-
R (on the application of JB (Jamaica)) v Secretary of State for the Home Department
...be said that there is in general in Jamaica no serious risk of persecution of persons entitled to reside there. 10 In R (Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789, [2002] Q.B. 129 the court considered the effect of the Asylum (Designated Countries of Destinati......
-
Mr Martin Warsama (Claimant in HQ16X04249) v The Foreign and Commonwealth Office
... [2010] UKSC 52, [2011] AC 684 Kimathi & Ors v FCO [2017] EWHC 3379 (QB) R (on the application of H-S) v SSHD [2017] WL 03174585 R (Javed) v Home Secretary [2001] EWCA Civ 789 Al-Fayed v UK [1994] ECHR 27 Hurley v Secretary of State for Work and Pensions [2015] EWHC 3382 A v UK 35 EHRR 51......