Singh v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HENRY,Lord Justice Buxton,LORD JUSTICE BUXTON,LADY JUSTICE ARDEN,LORD JUSTICE WARD,LORD JUSTICE MAY,LADY JUSTICE HALE |
| Judgment Date | 04 April 2001 |
| Neutral Citation | [2001] EWCA Civ 353,[2001] EWCA Civ 516 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2001 |
| Docket Number | C/2000/3193,C/2000/6465 |
[2001] EWCA Civ 353
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Henry
Lord Justice Buxton and
Lady Justice Arden
C/2000/6465
Mr M Gill QC (instructed by Messrs Jasvir Jutla & Co, Leicester) appeared on behalf of the Appellant Applicant.
Miss E Grey (instructed by the Treasury Solicitor, London SW1) appeared on behalf of the Respondent.
(As Approved by the Court)
I will ask Lord Justice Buxton to give the first judgment.
This is an appeal from a determination of the Immigration Appeal Tribunal in October 1999 in the case of an applicant, Mr Gurdial Singh, who is a citizen of India and, more particularly, a former resident of the Punjab.
Permission to appeal was granted by myself on paper on one point only that is to say, in relation to the handling by the Immigration Appeal Tribunal of certain additional items of evidence that the applicant wished to put before it. Since that permission was granted, however, the case has come into the hands of Mr Manjit Gill QC, who has taken a new and fresh look at the matter. Before us today Mr Gill has sought to extend the complaints that he would wish to make of the special adjudicator and the Immigration Appeal Tribunal's handling of the matter by way of additional grounds of appeal, some of which were before me originally in some form or other and were rejected by me, some of which seem to me to be entirely new. Without going into that as a technical application to extend or for permission, it has been convenient for Mr Gill to develop the whole matter before us, which of course he has done with his normal detailed attention to his client's interests and position, and I shall in this judgment endeavour to address all the matters that Mr Gill raised, going beyond those upon which permission was originally granted.
There are disputes, to some extent, as to the history of this matter, but I will first of all set out the facts upon which there is broad agreement. Mr Gurdial Singh was born in April 1945. He came to this country in March 1996. He did not claim asylum on arrival. His explanation for being here was originally that he wished to attend the wedding of his daughter. He is a married man and his wife and two of his three children still live in India, as I understand it, in or near his original home location, at a village called Chitti. The third daughter lives in the United Kingdom. Although Mr Gurdial Singh came here to attend her wedding, his real motive, as he has maintained, was to flee from persecution that he feared in the Punjab and, as the case was developed, more generally in India.
The background is that in 1984, when there were, notoriously, troubles in India so far as the Sikh community was concerned, he was the manager of a Gurdwara, which I understand to be a temple or religious building associated with the Sikh religion. He was, therefore, in that capacity, as Mr Gill pointed out, someone who was associated with what I will call for the moment Sikh affairs in a way that an ordinary Sikh person might not be thought to be. That being, as I have said, a time of problems for the Sikh community, the military surrounded that building and Mr Gurdial Singh was taken prisoner, questioned, accused of murder and kept in custody, where he was, according to his account, maltreated. He was released when no evidence was offered against him.
He was then on other occasions, according to his evidence, detained in respect of charges of robbery, incitement to violence and other offences. This caused him to be, as he claimed, on a list of persons known to be leaders of the Sikhs and capable of leading others in opposition to the State. Other allegations were made against him, but it appears that none of them were pursued to trial or, if they were, he was acquitted of any offences.
He had on occasion, he said, led demonstrations complaining about police activity. The last occasion when he came up against the authorities, if I may use that expression, was in 1992, when, as vice-president of his local village council, he led a protest against the killing of a number of persons. He was again arrested and tortured, as he said, but was then released by reason of the representations made of the police force by that village council.
A disturbing event occurred after that time when a colleague was shot and killed, allegedly by three plain clothes policemen, and from that point onwards or, indeed, before that Mr Gurdial Singh went, as he claimed, into hiding. The police continued to search for him, but did not succeed in finding him. Nor, it appears, were there any difficulties experienced by his wife and two children, who continued to live openly in the family village. After four years of being in that position, Mr Gurdial Singh, as I have said, reached this country in 1996.
The adjudicator and the tribunal had the benefit of a medical report from Dr Peel in 1997, which was inconclusive as to the claims of torture and injury. Mr Singh did not have any manifestation of a physical injury, but the doctor fairly said that the sort of abuse that he complained of would not normally leave such marks.
After some procedural difficulties, which, fortunately, I need not go into, his application for asylum was considered by a special adjudicator, Mr Perkins, in October 1998, on the basis that Mr Gurdial Singh would face persecution if he were to be returned to India: the evidence being, as I have said, that he had been attacked and tortured by the police before that.
The adjudicator made various findings about the evidence that he had heard from Mr Gurdial Singh and from other sources, Mr Gurdial Singh having been cross-examined before him. It is necessary to say something in detail about the adjudicator's findings because they affect the determination of the Immigration Appeal Tribunal. The adjudicator pointed out that Mr Gurdial Singh had been able to leave India on his own passport and he was sceptical, or at least he expressed some reserve, about the claim that he had been in hiding from 1992 to 1996. As the adjudicator put it, that seemed to him to be a long time to be "on the run". If the police were really interested in him, they would have found him.
The adjudicator, although having doubts about certain aspects of the appellant's evidence, accepted that he had been prominent in Sikh marches and demonstrations; that he had in the past been a victim of violence at the hands of the police; and that he had been the subject of false charges pointing out, however, that those charges had been dismissed. The adjudicator said this (at p.7 of his determination):
"It is to the credit of the Indian authorities that the Courts have repeatedly dismissed ill-founded allegations but, having considered all of the evidence, I find that the police have shown a marked determination to get the Appellant convicted of something."
He then addressed the issue and said this (at p.8):
"I am then faced with the appeal of a man who has been the subject of oppressive police behaviour in the past but, I find, not since 1992. Since then he has lived in the Punjab, he says discretely, without attracting police attention. He was able to leave India on his own passport and this satisfies me that he was not wanted for questioning at the time of his departure.
These things of themselves suggest that he would not be of interest to the authorities on his return."
Expressing some concern about the prospects if he were to return to his own address, the adjudicator said that the police:
" would now be unlikely to persecute someone who has been out of the way for some time".
On the reports that he had (that is to say, the India Country Assessment and the Foreign and Commonwealth Office report), the adjudicator accepted that there had been a change of attitude in the Punjab. He drew attention, in particular, to the fact that the appellant had not attracted the attention of the police since 1992. In all the circumstances he did not accept that the appellant had been at risk since that date and he therefore was not persuaded that the appellant was entitled to international protection.
A number of criticisms are now made of the handling of some parts of the evidence. The adjudicator had before him a report from Dr Rai, who is a well known expert on Sikh and Punjab affairs, who has given evidence in many cases before tribunals. He was not minded to attach weight to that report. His view was that Dr Rai's sympathies interfered with his objectivity. In reaching that conclusion, the adjudicator appears to have relied upon Chinder Singh [1998] Imm AR 551, in which Dr Rai's evidence was criticised. We have been shown by Mr Gill a series of cases in which a different view has been taken of Dr Rai, and complaint is made in this case that his evidence was wrongly discounted by the adjudicator.
Secondly, there was before the adjudicator another document well known in the jurisprudence of this area, a report by Messrs Tyndallwoods, solicitors of Birmingham, who had made enquiries themselves in the Punjab in 1997. The adjudicator did not deal with the whole of that report, but said that he was concerned that the report suggested that illegal detention and torture was applied to people arriving at Delhi airport on removal from the United Kingdom. He was doubtful about that conclusion, pointing out that it was not based upon any evidence that...
To continue reading
Request your trial
-
Russell Haynes v The Secretary of State for Justice
...are encouraged to leave no stone unturned in your effort to do so." 13 In Johnsey Estates v the Secretary of State for the Environment [2001] EWCA Civ 353 Chadwick LJ at para 22, after dealing with discretion and the general principle under which costs are awarded, observed that a judge may......
-
Aspin v Metric Group Ltd
...see the observations at paragraph 22 of my judgment in this Court in Johnsey Estates 1990 Limited v Secretary of State for Environment [2001] EWCA Civ 353. Indeed, as I observed, it is not for an appellate court even to consider whether it would have exercised the discretion differently unl......
-
Court Of Appeal Upholds Literal Reading Of Contract
...ING Bank NV v Ros Roca SA [2001] EWCA Civ 353 ING acted as a financial adviser to Ros Roca, a Spanish company specialising in waste and environmental services. Under an agreement relating to the purchase of another company by Ros Roca, ING was entitled to a fixed fee and an additional fee: ......