Sheikh Mohammed Ikhlaq Hamida Ikhlaq v Secretary of state for the home department
| Jurisdiction | England & Wales |
| Judgment Date | 16 April 1997 |
| Date | 16 April 1997 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Staughton, Waite, Waller LJJ
D O'Dempsey for the appellants
Miss E Grey for the respondent
Cases referred to in the judgments:
Thirunavukkarasu v Minister of Employment and Immigration (1993) 109 DLR (4th) 682.
Dupovac (unreported) (11846).
Ahmed (unreported) (13371).
Asylum internal flight the meaning of expect and reasonable in the relevant immigration rule whether rule ambiguous whether Tribunal entitled to differ from special adjudicator after balancing evidence to determine whether internal flight reasonable. Asylum and Immigration Appeals Act 1993 s. 8(2): HC 395 para. 343: UNHCR Handbook on procedures and criteria for determining refugee status para. 91.
The appellants, husband and wife, were citizens of Pakistan. They claimed they feared persecution in Karachi. They had however moved to Rawalpindi before coming to the United Kingdom. Their application for asylum was refused by the Secretary of State who concluded that it would be reasonable for them to return to Rawalpindi. They appealed. Their appeal was allowed by a special adjudicator who, taking account especially of their medical conditions, concluded that it would not be reasonable for them to return to Rawalpindi. On appeal by the Secretary of State the Tribunal reversed the decision of the special adjudicator. They appealed to the Court of Appeal.
Held:
1. In HC 395 para. 343 concerning internal flight expect meant require and it was the decision-maker who was to be reasonable: it was not a matter of whether it was a reasonable course for the appellant to take.
2. There was nothing ambiguous in paragraph 343.
3. On the facts, the Tribunal was entitled to reverse the decision of the special adjudicator. There was nothing in the medical reports to suggest that the health of the appellants would be adversely affected if they returned to Rawalpindi.
Staughton LJ: Mr and Mrs Ikhlaq are citizens of Pakistan; he is now aged 56, and she is 50. For a time they were living in Karachi, which is in the province of Sind. They say that they suffered persecution there and in October 1990 their house was burnt down. But they did not come here immediately; instead they went to Rawalpindi, in the Punjab where they had lived previously, to arrange their affairs. In particular they transferred to their children a business which they owned. Then in June 1991 they obtained visas for a single visit to the United Kingdom. It was on 13 September 1991 that they arrived in this country and were granted leave to enter for six months as visitors. On 24 September representatives acting on their behalf submitted an application for asylum.
That claim was rejected by the Secretary of State on 22 August 1994. On 22 April 1996 an appeal by Mr and Mrs Ikhlaq was allowed by a special adjudicator, who held that they were entitled to asylum. His decision was reversed by the Immigration Appeal Tribunal on 15 July 1996. There is now an appeal by leave of this court. So the present state of affairs is that Mr and Mrs Ikhlaq are once again seeking the right of asylum here.
The special adjudicator found that:
it would not be safe for these appellants to return to Karachi and that they have a well-founded fear of persecution on the ground of their political affiliation, were they to be returned to that city.
He went further and found that they had a fear of persecution in respect of the whole of the territory of the Islamic Republic of Pakistan; but he added
In respect of the city of Rawalpindi and its environsthat fear is not well-founded.
One further conclusion of the special adjudicator is of critical importance. He made this finding:
In all the circumstances of the case including the fact that the first appellant is himself a refugee who was traumatised by violent events in his childhood, the post traumatic stress disorder from which he suffers, the history of persecution of the first appellant, the major depressive illness from which the second appellant suffers and the violence to which he was subjected by police officers in 1994, it would not be reasonable to expect them to exercise the option of internal flight to Rawalpindi.
The Question to be answered
We are all familiar with article 1A(2) of the United Nations Convention relating to the status of refugees:
the term refugee shall apply to any person whoowing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
Neither there nor anywhere else in the Convention do we find express provision for a person who has a well-founded fear of persecution on Convention grounds in part of the country of his nationality and not in some other part of it.
Nevertheless that situation...
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