SA (Political Activist - Internal Relocation) Pakistan
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge Storey |
| Judgment Date | 24 January 2011 |
| Neutral Citation | [2011] UKUT 30 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 24 January 2011 |
[2011] UKUT 30 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Lord Bannatyne
SENIOR IMMIGRATION JUDGE Storey
For the Appellant: Ms L A Mulholland, Solicitor of Quinn, Martin & Langan
For the Respondent: Mr K Kyriacou, Home Office Presenting Officer
SA (political activist — internal relocation) Pakistan
Requiring a political activist to live away from his home area in order to avoid persecution at the hands of his political opponents has never been considered a proper application of the internal relocation principle: see e.g. Nolan J in R v Immigration Appeal Tribunal, ex p. Jonah [1985] Imm AR 7 . And (since October 2006) such a requirement cannot be considered to be consistentwith para 3390 of the Immigration Rules (Article 8 of the Qualification Directive). Indeed, the pitfalls of requiring a person to act contrary to his normal behaviour in order to avoid persecution have been further emphasised by the Supreme Court inHJ (Iran) [2010] UKSC 31.
The appellant is a national of Pakistan. In a determination notified on 14 October 2009 Immigration Judge (IJ) Morrow dismissed his appeal against a decision by the respondent dated 3 April 2009 to remove him as an illegal entrant having refused to grant him asylum.
The appellant's claim was that he feared persecution at the hands of opposition party members principally from the Pakistan People's Party (PPP). The latter had targeted his brother who was the town Nazim (a kind of local mayor) in a district of Rawalpindi (Choor Rawalpindi and surrounding villages) and who belonged to the Q League (PMLQ Party). Following the fall of President Musharaf in August 2008 there had been widespread riots in the appellant's home area and the tensions between the various political parties worsened, expressing themselves in violent clashes at demonstrations and election meetings. The appellant and his brother had suffered personal attacks from 2005 onwards. He had been very well off, owning shops and a restaurant; but in early 2009 members of opposing parties burnt them all down. In early March 2009 members of the opposing parties had shot and killed his brother at a party meeting. He and his family went to stay at his brother-in-law's house in Islamabad and later at a place in Muree where he had relatives. In Islamabad he and his family received threats to their life via friends and relatives.
Despite finding the appellant a reliable witness and so accepting his account of what had befallen him in Pakistan the IJ dismissed his appeal, concluding that: (1) he would be able to receive a sufficiency of protection from the police authorities in Rawalpindi because the main focus of the PPP supporters' attention had been against his brother and although politically involved, the appellant had not held any office and had not played any major part other than as a supporter of the party; and also because since early 2008 every time there were clashes between the political parties the police came and on many occasions arrested members from both sides; and (2) even if this were not the case, to avoid adverse attention from those who opposed his brother, he could relocate to another part of Pakistan, as indeed he had done for several weeks after his brother had been killed (in other parts of Rawalpindi, in Islamabad and in Tarnoul). There was no evidence, the IJ said, that the appellant's wife and children had been the focus of attention from the PPP supporters.
The grounds of appeal contended that the IJ had erred by failing properly to take account of various negative features of the police's treatment of the appellant, in particular: their failure on more than one occasion to charge those who had attacked the appellant; their failure, on the occasions they did charge his attackers, to raise a First Information Report (FIR); their release without charge of those accused of burning down the appellant's shops; and their general readiness to side with the PPP because they were in power at a national level. The grounds noted that despite the appellant reporting PPP members to the police for the murder of his brother, what had happened was that the PPP had threatened to kill him and his family had been harassed and intimidated (his son had been assaulted). In addition, the grounds stated, it was unreasonable of the IJ to find the appellant would have a viable internal relocation alternative based on his having lived in Islamabad and other places during which time the appellant moved around to avoid detection.
We informed the parties at the outset that our provisional view was that the IJ had materially erred in law. In response Ms Mulholland relied on the grounds and her skeleton argument. Mr Kyriacou accepted there were shortcomings in the IJ's treatment of the appellant's case, in particular that he concentrated too much on the general question of whether or not there was a systemic failure of protection on the part of the authorities in Pakistan and in the appellant's home area without dealing fully with the appellant's particular circumstances. But even so, added Mr Kyriacou, he had addressed the implications and the steps the police had taken to protect the appellant and had also given attention in the alternative to the issue of internal relocation.
Regulation 4 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (implementing Article 7 of the Qualification Directive 2004/83/EC) defines actors of protection in a way that mirrors the principles set out by the House of Lords in Horvath v Secretary of State for the Home Department (2001) 1 AC 489 where it was held that whether protection was sufficient was a “practical standard which takes proper account of the duty which the state owes its nationals…” and that “the sufficiency of state protection is not measured by the existence of a real risk of an abuse of rights but by the availability of a system for the protection of a citizen and a reasonable willingness of the state to operate it”. As noted by the Tribunal in IM (Sufficiency of Protection) Malawi [2007] UKAIT 00071, the House of Lords in Bagdanavicius [2005] UKHL 38 left undisturbed the propositions set out by Auld LJ on real risk and sufficiency of protection in the Court of Appeal (2005) EWCA Civ 1605. These propositions are in the following terms:
“54. Summary of conclusions on real risk/sufficiency of state protection.
The common threshold of risk
55 1) The threshold of risk is the same in both categories of claim; the main reason for introducing section 65 to the 1999 Act was not to provide an alternative, lower threshold of risk and/or a higher level of protection against such risk through the medium of human rights claims, but to widen the reach of protection regardless of the motive giving rise to the persecution.
Asylum claims
2) An asylum seeker who claims to be in fear of persecution is entitled to asylum if he can show a well-founded fear of persecution for a Refugee Convention reason and that there would be insufficiency of state protection to meet it; Horvath [2001] 1 AC 489].
3) Fear of persecution is well-founded if there is a ‘reasonable degree of likelihood’ that it will materialise; R v SSHD ex p. Sivakumaran [1988] AC 956, per Lord Goff at 1000F-G.
4) Sufficiency of state protection, whether from state agents or non-state actors, means a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the claimant for asylum has a well-founded fear; Osman v UK [1999] 1 FLR 193], Horvath, Dhima [2002] EWHC 80 (Admin), [2002] Immigration Judge AR 394].
5) The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event; Horvath; Banomova [2001] EWCA Civ. 807. McPherson [2001] EWCA Civ 1955 and Kinuthia ...
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