Secretary of State for the Home Department v Arif
| Jurisdiction | England & Wales |
| Judgment Date | 17 February 1999 |
| Date | 17 February 1999 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Simon Brown, Ward, Robert Walker LJJ
Miss A-M Sheehan for the appellant
R Tam for the respondent
No cases referred to in the judgments
Asylum appellant entitled to asylum at date of application appeal allowed by special adjudicator change of relevant circumstances in home country Secretary of State's appeal successful before Tribunal whether burden of proof on Secretary of State to show change of circumstances would ensure appellant's safety from persecution whether on the facts that established.
Appeal from the Immigration Appeal Tribunal which had allowed the appeal of the Secretary of State against the determination of a special adjudicator who had in turn allowed the appeal of the appellant against the refusal of the Secretary of State to grant him asylum.
The appellant contended and the special adjudicator accepted that he had been falsely accusedand in his absence convictedof serious crimes, because of corrupt political influence. There had been a change in the political complexion of Azad Kashmir, and the Secretary of State had argued before the Tribunal, that it would be safe for the appellant then to return, albeit it seems to have been common ground that he had had a good claim to asylum before the political changes occurred in Azad Kashmir.
Held:
1. Where it was contended that there had been changes in relevant circumstances in an individual's home country so that he no longer required international protection, the burden of proof of showing that that was the case was on the host state.
2. In the instant case the Secretary of State had not discharged that burden.
Simon Brown LJ: The appellant is a citizen of Azad Kashmir, a part of the world in some turmoil over recent years. Supposedly independent of Pakistan, it is disputed territory between India and Pakistan. The appellant, then aged 29, came to this country on 11 April 1992 and some three months later applied for political asylum. He left behind a wife and three children.
His application was refused by the Secretary of State over two years later on 17 October 1994. He appealed successfully to the special adjudicator, a determination promulgated on 11 March 1997. On 2 December 1997, however, that victory was overthrown, the Immigration Appeal Tribunal allowing the Secretary of State's appeal. On 30 December 1997, the Tribunal refused leave to appeal to this court as, too, did Sir Anthony McCowan, the single lord justice, on 17 March 1998. We, however, granted leave at the outset of this hearing.
The appellant's case for asylum can be summarised in a sentence or two. Since university days he has been an active supporter of the PPP party, more correctly called the AJKPP, the Azad Jammu and Kashmir People's Party. In June 1991, however, the Muslim Conference Party came to power and the appellant's problems began. First he was demoted in his profession as a teacher. More importantly, however, on 30 November 1991 (or it may have been 7 December 1991) he participated in a demonstration which, following heavy police intervention, turned into a riot. He was arrested, detained, tortured during detention and, as he maintained, falsely charged with a number of grave criminal offences, including robbery, arson (the burning down of the Habi Bank), the shooting and injuring of a guard and, as I understand it, incitement to murder a youth. On 5 April 1992, after four months in custody...
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