HA v Secretary of State for the Home Department

JurisdictionScotland
Judgment Date02 August 2007
Neutral Citation[2007] CSIH 65
Date02 August 2007
Docket NumberNo 4
CourtCourt of Session (Inner House - Extra Division)

Court of Session Inner House Extra Division

Lord Macfadyen, Lord Nimmo Smith, Lord Kingarth

No 4
HA
and
Secretary of State for the Home Department

Immigration - Asylum - Whether an immigration judge's decision on credibility can disclose an error of law - Whether an error of law was disclosed

The appellant was unsuccessful in his application for asylum in the United Kingdom. He based his claim on the repercussions of his relationship with a woman in Afghanistan. His appeal against that decision was refused by the adjudicator. His further appeal to the Asylum and Immigration Tribunal was also refused. He appealed to the Inner House.

It was argued on behalf of the appellant that the immigration judge erred in law in that there was insufficient evidence before him to entitle him to conclude that the appellant's account of his relationship was incredible. Where evidence was rejected as incredible or implausible, the reasons for rejecting it had to bear scrutiny. There was no sufficient basis within the objective evidence for the conclusions reached as to the credibility of the appellant's account. Furthermore, the reasons which the immigration judge derived from the appellant's own evidence as a basis for his findings on credibility were based on conjecture or speculation.

It was argued on behalf of the respondent that the objective evidence did support the immigration judge's findings on credibility and that in assessing the appellant's own evidence, he was , as he was entitled to do, drawing on his own common sense and ability, as a practical and informed person, to identify what is or is not plausible.

Held that: (1) an immigration judge's decision on credibility or implausibility could disclose an error of law if, on examination of the reasons given for the decision, it appeared either that he had failed to take into account the relevant consideration that the probability of the asylum-seeker's narrative may be affected by its cultural context, or had failed to explain the part played in his decision by consideration of that context, or had based his conclusion on speculation or conjecture (para 17); (2) the immigration judge's approach to the objective evidence disclosed no error of law (para 21), but such an error was disclosed in his treatment of certain parts of the evidence, including that from the appellant (paras 30, 36, 44); (3) the aspects of the immigration judge's reasoning which disclosed an error of law were material to his conclusion to reject the appellant's claim (para 45); and appeal allowed.

HA applied for asylum in the United Kingdom on 13 December 2003. The Secretary of State for the Home Department rejected his application for asylum on 13 February 2004. The appellant appealed to an adjudicator. That appeal was dismissed on 25 May 2004. On 8 October 2004, the appellant was granted leave to appeal against the adjudicator's decision. The Asylum and Immigration Tribunal refused the appeal in June 2005 and refused leave to appeal on 4 August 2005. The appellant was granted leave to appeal by the Court of Session on 7 March 2006.

Cases referred to:

AF (War lords/Commanders: Evidence expected) Afghanistan CG [2004] UKIAT 00284

AM (Risk: War lord - Perceived Taliban) Afghanistan CG[2004] UKIAT 0004

Ahmed (Tanveer) v Secretary of State for the Home Department [2002] UKIAT 439; [2002] Imm AR 318; [2002] INLR 345

Associated Provincial Picture House Ltd v Wednesbury CorporationELRUNK [1948] 1 KB 223; [1947] 2 All ER 680

Bugdaycay v Secretary of State for the Home DepartmentELRWLRUNK[1987] 1 AC 514; [1987] 2 WLR 606; [1987] 1 All ER 940

Esen v Secretary of State for the Home DepartmentSC[2006] CSIH 23; 2006 SC 555

Gheisari v Secretary of State for the Home DepartmentUNK[2004] EWCA Civ 1854

HK v Secretary of State for the Home DepartmentUNK [2006] EWCA Civ 1037

Hadmor Productions Ltd v HamiltonELRWLRUNK [1983] AC 191; [1982] 2 WLR 322; [1982] 1 All ER 1042

Kahye (Mehmet) v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 317

Karanakaran v Secretary of State for the Home DepartmentUNK [2000] 3 All ER 449; [2000] Imm AR 271; [2000] INLR 122

R (Iran) and ors v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 982

R v Ministry of Defence, ex p R v Ministry of Defence, ex p SmithELRWLRUNK [1996] QB 517; [1996] 2 WLR 305; [1996] 1 All ER 257

R v Secretary of State for the Home Department, ex p Kaja [1995] Imm AR 1

R v Secretary of State for the Home Department, ex p SivakumaranELRUNK [1988] AC 958; [1988] 1 All ER 193; [1988] Imm AR 147

Reid v Secretary of State for ScotlandSCUNKELRWLRUNK 1999 SC (HL) 17; 1999 SLT 279; 1999 SCLR 74; [1999] 2 AC 512; [1999] 2 WLR 28; [1999] 1 All ER 481

W321/01A v Minister for Immigration and Cultural Affairs [2002] FCA 210

Wani v Secretary of State for the Home Department[2005] CSOH 73; 2005 SLT 875

Textbooks etc. referred to:

Symes, M, and Jorro, P, Asylum Law and Practice (Butterworths, London, 2003), para 2.31

The cause called before an Extra Division, comprising Lord Macfadyen, Lord Nimmo Smith and Lord Kingarth, for a hearing on the summar roll on 3 and 4 July 2007.

At advising, on 2 August 2007, the opinion of the Court was delivered by Lord Macfadyen-

Opinion of the Court-

Introduction

[1] The appellant is a 20-year-old citizen of Afghanistan who entered the United Kingdom clandestinely on 1 December 2003. He claimed asylum on 13 December 2003. By decision letter dated 13 February 2004 the respondent refused the appellant's asylum claim. The same letter also expressed the respondent's decision that the United Kingdom would not be in breach of its obligations under the European Convention on Human Rights if the appellant were returned to Afghanistan. The appellant appealed against those decisions to an adjudicator. On 25 May 2004 the adjudicator dismissed that appeal. The appellant sought, and on 8 October 2004 was granted, permission to appeal against the adjudicator's decision. In June 2005 that appeal, which in terms of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (cap 19) proceeded by way of reconsideration, was refused by an immigration judge. The appellant then sought permission from the Asylum and Immigration Tribunal to appeal to this court. On 4 August 2005 permission to appeal was refused by the tribunal. Application for leave to appeal was then made to this court and on 7 March 2006 such leave was granted. This court therefore has before it the appellant's appeal against the immigration judge's decision of June 2005.

Circumstances

[2] The narrative of circumstances on which the appellant bases his claims may be summarised as follows. The appellant was born in Mazar-i-Sharif in Afghanistan. He has two sisters who now live with their husbands in Afghanistan and Pakistan respectively. His mother is deceased. His father and one brother were killed by the Taliban. Another brother disappeared and is believed to have been taken by the Taliban. A third brother, MA, fled Afghanistan and now resides in the United Kingdom.

[3] In about December 2002 the appellant met a girl called M, and they began a relationship. They did so secretly, so that no one would know that they were going out together. They would go to different places including the park. On about six occasions they were able to meet at the appellant's sister's house as there was no one at home. On those occasions they had sexual relations. In about June 2003 M discovered that she had become pregnant and told her mother that the appellant was the father.

[4] The appellant knew that it would not be acceptable to M's family that he should marry her, as her father, Commander A, was important in the region. Commander A is a commander in General Doustom's army, and is thus a senior military figure in Mazar-i-Sharif. He has a lot of power there and in the north of Afghanistan. He is an Uzbek. In addition, the appellant's own family was considered to be of a lower caste.

[5] M's ten-year-old sister told the appellant that her family knew that he was the father of M's expected child. He therefore left home and went to an aunt's house about an hour's drive away. His sister came to see him and asked him what had happened, because her husband had been arrested and beaten. The appellant therefore went to hide with a friend. He was told by his brother-in-law that he would be killed if he returned. He was told by his brother-in-law that he should leave Afghanistan. As members of the Northern Alliance, Commander A and his sons had a lot of power and influence with the transitional administration throughout the country, and would find him wherever he went. The appellant telephoned his brother in the United Kingdom, who said that he should sell the family home and use the proceeds to leave Afghanistan. The appellant therefore did so.

[6] After the appellant left Afghanistan, members of the authorities under Commander A's control went to the appellant's brother-in-law's shop and demanded to know where the appellant was. When his brother-in-law said that the appellant's whereabouts were not known, he was so badly beaten that he required hospital treatment. He was forced to close his shop. It has not re-opened. He and his wife went first to Kabul, then to Peshawar in Pakistan because they were not safe in Kabul. Commander A found them in Kabul, again arrested the brother-in-law and demanded that he tell them where the appellant was. When it was found that the appellant was not in Afghanistan his brother-in-law was released.

[7] On 27 March 2004 the appellant received from Afghanistan a copy of an arrest warrant that had been issued for him. His friend J, with whom he had been hiding in Afghanistan, obtained it for him. J had a relative who worked in the police station in Mazar-i-Sharif, had seen a file containing the document, and had obtained a copy of it.

[8] The appellant fears that if he is captured he will be killed at...

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