Upper Tribunal (Immigration and asylum chamber), 2002-06-28, [2002] UKIAT 2239 (MI (Fair trial, Pre-trial conditions))
| Jurisdiction | UK Non-devolved |
| Judge | Dr HH Storey, Mr R Hamilton |
| Status | Reported |
| Date | 28 June 2002 |
| Published date | 18 March 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 09 January 2002 |
| Subject Matter | Fair trial, Pre-trial conditions |
| Appeal Number | [2002] UKIAT 2239 |
Appeal No.HX87092-1997 MI (Fair Trial-Pre-Trial Conditions) Pakistan CG [2002] UKIAT 02239
IMMIGRATION APPEAL TRIBUNAL
Dates heard: 9 January 2001, 24 April 2002
Date notified: 28 06 02
Before: -
DR H H STOREY (CHAIRMAN)
MR R HAMILTON
Between
MUZAFAR IQBAL
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DETERMINATION AND REASONS
1.This case raises the issue of prosecution versus persecution. The particular context concerns an appellant facing prosecution on false charges in Pakistan.
2.The appellant, a citizen of Pakistan, has appealed with leave of the Tribunal against a determination of adjudicator, Mr L V Waumsley, dismissing his appeal against the decision of the Secretary of State giving directions for his removal having refused to grant him asylum. The Tribunal had originally refused leave to appeal, but that refusal had been quashed by Order of the High Court. Ms J Farbey of Counsel instructed by Darby`s Solicitors appeared for the appellant and Mr P Deller appeared for the respondent. There was also a hearing resulting in an adjournment at which Mr J Gulvin appeared for the respondent.
3. Proceedings in this case have been protracted. That is never desirable. At the close of the first hearing the Tribunal felt handicapped by not having objective country materials dealing with the workings of the justice system in Pakistan since the military take-over by General Pervez Musharraf. In the event more recent materials were produced, although not comprehensive.
4. At the original hearing, the Tribunal consisted of three members, the present two plus Mr R Baines. For administrative reasons it was not possible for Mr Baines to sit at the resumed hearing. Both parties indicated they had no objection to the Tribunal continuing with two members.
5. It must be borne in mind that the subject of this appeal is a decision dated 23 December 1996. Being a date well before the Human Rights Act 1998 came into force on 2 October 2000, the fair trial issues examined in the context of a human rights claim in the starred Tribunal determination of Devaseelan [2002] UKIAT 00702 are not as such relevant, although we will have occasion to refer to that decision together with another case dealing with a human rights claim raising issues of detention as a result of prosecution, that of Fazilat [2002] UKIAT 00973.
6. The appellant`s claim was in essence that he was a member of the Muslim League who had fled Pakistan after members of the local PPP (Pakistan People’s Party) in Tehsil and District Jhelum had brought serious false charges against him. The adjudicator had accepted the appellant`s evidence that a riot took place on 12 August 1995 at which a member of the PPP was killed and in consequence the appellant had been issued with two warrants for his arrest. He further accepted that if the appellant were to come to the attention of the Pakistani authorities following his return, he would be likely to be arrested and brought to trial. He found further that:
“ he might also be at risk of a possible revenge attack from members of the deceased man`s family who believe, rightly or wrongly, that the appellant was responsible for his death”.
7. Relying mainly on the submissions made to the High Court in the course of an application for judicial review, Ms Farbey said the appellant`s case was one of persecution rather than prosecution. The adjudicator had accepted that, as a result of an incident in August 1995, the appellant`s political opponents had brought serious charges against him and that he was a “wanted man”. The appellant`s case was that those charges were false charges. The adjudicator, she submitted, had erred in two key respects. First he had erred in holding that whether or not these charges were true or false and whether or not the appellant would get a fair trial as a result of these charges were not at all matters for him, but only matters for the Pakistan courts. The adjudicator ought, contended Ms Farbey, to have considered whether the accusations were true or false as well as whether or not he would get a fair trial. Second he had erred in overlooking that, even if the appellant would receive a fair trial, he would face serious harm at the pre-trial detention stage. The outcome would be that, as a result of serious harm instigated by non-state agents - in this case PPP members bringing false charges - the appellant would receive ineffective protection from the state. The likelihood of ill treatment at the pre-trial stage was borne out by the objective country materials including the UNHCR report of May 1998, the Human Rights Watch report of 2001 and the US State Department report of February 2001. The latter indicated that torture in detention still occurred “regularly”, that police corruption was widespread, that prison conditions were bad and that there was significant delay in the prosecution process. The appellant in this case was able to show, not only that he would face persecution against which the state could not protect him, but also a Convention reason of political opinion which in this case was the opinion which his political opponents (the PPP) would either ascribe or impute to him.
8. Ms Farbey asked the Tribunal to attach particular weight to the expert report from Dr Martin Lau dated 11 April 2001. His report confirmed that despite the arrest warrant being nearly 7 years old, it would remain valid and in any event fresh charges and warrants could still be issued regarding the 1995 offence. He concluded that PPP supporters would recognise the appellant as one accused of killing a PPP supporter and would still be likely to press charges, as would the family of the victim. There was still strong local support for the PPP in some areas and prominent PPP members remained able to exert influence over police officers and judicial officers in their localities. Should the authorities seek the appellant in connection with an alleged murder, continued Mr Lau, they could find him irrespective of the locality or region in which Mr Iqbal happened to live or hide.
9. For the respondent Mr Deller argued that it was not the job of a refugee decision maker or of an adjudicator to analyse whether charges brought against a claimant were true or false or whether he was innocent or guilty of those charges. It would impose an impossible burden on the decision-maker if he had to make such evaluations, since in most cases, as here, the best available evidence would be limited to the oral evidence of the person who claimed to be the victim of false accusations. The fair trial system in the country of origin must take precedence. Mr Deller asked the Tribunal to hold that there was insufficient evidence to establish that a person held in detention at the pre-trial stage would face serious ill treatment. If the risks of ill treatment during pre-trial detention were as serious as claimed, there would be virtually no one involved in Pakistan politics at liberty. As regards the claim to a Convention ground of political opinion, Mr Deller said that the appellant`s argument amounted to a claim to “remote control” persecution in which the criminal justice authorities were said to act as the “blunt instruments” of the real perpetrators, in this case certain members of the PPP. At the relevant time in 1995 the Muslim League was the party of government, so the state authorities at that time would not have had any sectarian motive hostile to the appellant. The appellant`s argument also left unclear what was the persecutory act. If it was the act of the state authorities in ill-treating him in detention, then the issue was whether the state would be likely to persecute him; non-state agents would only be involved in a limited way. If it was the act of his political opponents in bringing false charges, then how in itself, without some follow-up action by the state authorities, could that amount to serious harm? There was also real doubt in this case in any event whether his political opponents were targeting him for political reasons or for purely personal reasons. The acts they complained of concerned the use of violence at a political meeting. On his own account he had gone there with the intent of disrupting that meeting. Someone had been killed. They thought it was him. There was no direct linkage between the Convention ground and the claimed persecution. Even if the PPP had political motives for...
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