Khan v Secretary of State for the Home Department

LORD JUSTICE WARD:I will ask Lord Justice May to give the first judgment.

LORD JUSTICE MAY: This is an appeal by Habibullah Khan, with permission granted by Kay LJ, from a decision of the Immigration Appeal Tribunal notified on 15th August 2002. The Immigration Appeal Tribunal had refused permission to appeal, saying that the grounds of appeal disclosed no point of law which would have made a material difference to the outcome of the appeal; and that the points of fact then canvassed were all matters which were fully argued before the Tribunal.

The appeal this morning has taken an unexpected turn. At a very late stage there was produced before the court documents in Bangladeshi (I will explain in a moment how they become relevant) and an English translation which gives, assuming it is correct, very material additional information to that which was before the Immigration Appeal Tribunal. For my part, for reasons which will appear, I would have no hesitation in admitting this material for the purposes of this court's consideration; and it does, as will appear, have a summary effect on the outcome.

The appellant is a stateless Bihari who came to the United Kingdom from Bangladesh, where he had been habitually resident. Biharis are non-Bengali Muslims who emigrated to what was formerly East Pakistan during the 1947 partition of British-ruled India. Most Biharis supported Pakistan during Bangladesh's 1971 war of independence. They later declined to accept Bangladeshi citizenship and asked to be repatriated to Pakistan. Between 1973 and 1993 a large number of Biharis did move back to Pakistan. The status of those who remain in Bangladesh remains unresolved. They have not been granted Pakistani citizenship, although they can apply for Bangladeshi citizenship.

The appellant is one such technically stateless Bihari. He was born on 1st October 1969. He arrived in the United Kingdom on 13th June 2001 in a lorry container. He was seen by immigration officials and immediately claimed asylum. On 22nd June 2001 the Secretary of State refused his claim for asylum. He appealed to an adjudicator and Mr N.H. Goldstein heard his appeal on 31st January 2002. The adjudicator dismissed his appeal in a determination promulgated on 15th February 2002.

The appellant's claim for asylum was made both under the Refugee Convention and the Human Rights Convention. Factually, it centred on the events of 14th August 2000. On that day there was a demonstration in Khulna organised by a man called Afzal Khan, the local leader of the Biharis, and the local branch of the Pakistani Muslim League, an organisation with which the appellant's father had been concerned. The appellant attended this demonstration, at which the demonstrators raised a Pakistani flag. Fighting broke out between members of the Pakistani Muslim League, the police and the Awami League, who were the party in government at the time. Injuries were sustained on both sides. The appellant ran away during the fighting. His case was that after this demonstration criminal charges were laid against seven Biharis, including himself, and warrants of arrest were issued.

The appellant did not immediately leave Bangladesh after this incident. He in fact left on 3rd December 2000. He gave an account of what he was doing in the meantime in his evidence to the special adjudicator. He also gave an account of his journey, apparently by land, all the way from Bangladesh to the United Kingdom between December 2000 and 13th June 2001, when he arrived here. In short, the reason which he gave for leaving Bangladesh was that he learnt that he was one of those who had been charged and that the police were looking for him. He believed that he had been charged because of his family connections. He was charged with assault on members of the Awami League. He received advice from a lawyer and help from an agent. It was agreed with Bihari leaders that he should leave because it was thought that if he were arrested he would not get bail and it was very likely that he would not get a fair trial.

The special adjudicator heard evidence from him and considered some documents which apparently came from a Bangladeshi court. The exact nature of those documents was unclear to the adjudicator. The special adjudicator concluded, having correctly directed himself as to the law and as to the burden and standard of proof, that the core of the appellant's account was credible, although the special adjudicator believed that the appellant had exaggerated some parts of his account, particularly in relation to claims that he had learnt that the police continued to look for him.

The exact nature of what appeared to be Bangladeshi court documentation was unclear. It was agreed that these documents did not include charge sheets. But the appellant's name was shown on each of them as apparently indicating that he was wanted for reasons which it was accepted by the appellant's representative before the adjudicator could not be accurately determined. The documents appeared to include the statements of witnesses who claimed that the appellant, among others, had committed some form of criminal offence. The special adjudicator considered that some of these could be described as depositions of potential prosecution witnesses.

On 3rd October 2001, after the Secretary of State had refused the appellant's asylum claim but before the hearing before the special adjudicator, there was a general election in Bangladesh. The Awami League was replaced in government by the BNP Alliance, which won nearly two-thirds of the parliamentary seats.

The essence of the appellant's claim for asylum was that if he were to return to Bangladesh he would be detained and charged. He would not be granted bail. He would be detained on remand in what he claimed would be inhuman and degrading conditions in a category C Bangladeshi jail for an excessive period pending his trial. He feared that he would then not receive a fair trial and that any punishment would be excessive.

The special adjudicator considered these questions. He considered independent documentary material about the state of affairs in Bangladesh following the October 2001 elections. The documents made it clear that Bangladesh is a parliamentary democracy with broad powers exercised by the Prime Minister. There is an active political opposition, although violence is a pervasive feature of politics. The judicial system in Bangladesh involves a court system with two levels. The lower court consists of magistrates. The Supreme Court is divided into the High Court and the Appellate Court. Trials are in public. The law provides the accused with the right to be represented by counsel, to review accusatory material, to call witnesses and to appeal against verdicts. Under the Bangladeshi constitution all citizens are equal before the law and have a right to its protection. The constitution provides for an independent judiciary. The higher levels of the judiciary display a significant degree of independence.

The special adjudicator also concluded that Biharis are at liberty to reside in Bangladesh without interference or harassment from the authorities. Being a Bihari in itself does not constitute grounds for granting refugee status under the terms of the Refugee Convention. The Awami League, who the appellant claims to fear, is no longer in power. The party was comprehensively defeated in the recent general election. The special adjudicator concluded that the appellant's circumstances did not bring him within the Refugee Convention. He found that his fear is no more than a fear of prosecution, not persecution.

The special adjudicator made a number of findings in paragraphs 70 to 82 of his determination which may be referred to but which I do not propose to quote in detail in this short judgment.

Having found that the appellant feared not persecution but prosecution, the special adjudicator came to the conclusion that the Refugee Convention was not engaged and he dismissed his asylum appeal.

As to his human rights appeal, the appellant's case relied on articles 3 and 6 of the European Convention on Human Rights. The right under article 3 is absolute. The special adjudicator said that the ill-treatment has to reach a minimum level of severity before there is a breach of article 3. He found that there was no substantial ground for believing that the appellant would on return to Bangladesh face a real risk of ill-treatment which reached the minimum level of severity required to constitute a breach of his protective rights under article 3. For the reasons which he had considered under the asylum appeal, he also concluded that there was no breach of article 6. Accordingly, the special adjudicator dismissed his appeal.

The appellant applied for leave to appeal to the Immigration Appeal Tribunal. Limited leave was granted on 7th May 2002. Dr Storey, who granted him limited leave, considered that the adjudicator's conclusion that the appellant had not established that he would be at risk of persecution from the Awami League was sound. He granted leave on what he described as the “pre-trial detention issue”. He considered it to be arguable that the adjudicator did not deal adequately with the question whether, assuming the appellant would be prosecuted for the events of August 2000, he would face a real risk of either persecution or ill-treatment contrary to article 3 of the ECHR through having to undergo lengthy pre-trial detention in inhuman or degrading conditions.

The Immigration Appeal Tribunal heard this appeal in June 2002 and dismissed it in a determination dated 15th August 2002.

The case made on the appellant's behalf included that those prisoners in Bangladesh detained under category C had dirt floors, no furnishings and poor quality food. The poor conditions, it was said, could be life threatening. Threats, beatings and electric shock treatment did occur in detention in Bangladesh. A recent report described conditions in Bangladeshi prisons as “sub-human”. It was accepted by Mr Graham, who appeared before the Immigration Appeal Tribunal for the Secretary of State, that conditions in Bangladeshi jails were extremely poor, but he submitted that the level of severity of the adverse conditions did not reach the high threshold necessary for article 3.

The Immigration Appeal Tribunal recorded that at the hearing the appellant tendered evidence which included apparently translated court proceedings relating to the 14th August 2000 incident. It was unclear to me (and it is not necessary for present purposes to determine) whether those were the same documents that had been put before the adjudicator or whether they were new documents (perhaps translations of those put before the adjudicator) which were put before the Immigration Appeal Tribunal for the first time. The Immigration Appeal Tribunal recorded that they included a “bail record for the First Information Report with which the appellant was charged”. It appeared that others who did not escape were detained from 15th August 2000 until 15th June 2001 for a non-bailable offence. They were not recorded as being refused bail after 10th April 2001 and they failed to surrender for the hearing on 15th June 2001. So it seemed to the Immigration Appeal Tribunal that they must have been released at some time in the spring or early summer of 2001. The Immigration Appeal Tribunal recorded that the case was listed for hearing on 17th June 2001 in the absence of the accused, but there was no record of the outcome. The appellant had produced no evidence as to whether the prosecution of these people in their absence was pursued for what was essentially a political offence after the change of government.

It was pointed out on behalf of the Secretary of State that the adjudicator had expressed doubts as to whether the appellant would be charged if he returned to Bangladesh. Questions of pre-trial detention were therefore, it was submitted, hypothetical.

The Immigration Appeal Tribunal identified three issues to be determined on the appeal: (1) was the documentary evidence of the series of bail hearings reliable? (2) was there evidence that the appellant would now be detained if he returned? (3) if he were, would he suffer treatment which offended against article 3 of the ECHR?

The Immigration Appeal Tribunal regarded the documentary evidence as unreliable. They decided that, if he were returned to Bangladesh, there was no suggestion in the evidence that those in pre-trial detention in Bangladesh were subjected to torture, but that holding them in restraint with poor food and facilities “may be degrading treatment”, especially given the remarks of the Supreme Court Chief Justice, who had described the conditions as “sub-human”. The Immigration Appeal Tribunal did not, however, find it necessary to decide which article of the Convention was engaged “for the simple reason that given the change of Government and the very limited evidence of what would happen to the appellant on return, we are not satisfied to the appropriate lower standard that he is likely to be detained at all.”

The written grounds of appeal and counsels' skeleton arguments address the principal ground of appeal, which was whether the Immigration Appeal Tribunal were wrong in law to interfere with what was claimed to have been one or more findings of fact made by the adjudicator, where the adjudicator had found that the core of the appellant's evidence was credible. For present purposes it is not, in my view, necessary to address those questions; and this court has not this morning heard oral submissions in advance or opposition to that. Suffice it to say that Mr Scannell came here this morning prepared to submit that the Immigration Appeal Tribunal's decision was wrong for what it was; and, on the material upon which it was based, Mr Patel came here this morning prepared to submit that this court should uphold it.

The court, however, has been presented with an application to adduce fresh evidence. The fresh evidence includes exhibited documents which appear to be translations of court documents certainly of the kind which the Immigration Appeal Tribunal looked at (and they may even be the actual documents which they looked at), but proceeding beyond 17th July 2001. Without going into any greater detail, there are a number of entries of court appearances in the latter part of 2001 and the early part of 2002 where it is said, in translation, that “the accused on the run were not present”. There is an entry for 25th April 2002 which records again that the accused on the run were not present. It then proceeds to record what appears to have been the judgment of the court. The judgment is recorded in these terms: “... that documents seen and the incident are proved accordingly by the evidence presented. The accused were not present.” A number of accused are named, including the appellant in these present proceedings. It is said of those that “every one is given 10 years prison sentence with labour and fine 20,000 Taka. If not paid another 3 months prison sentence with labour is given. This will take effect after their arrest.”

In my judgment this court must take account of this material. I am personally untroubled as to the precise jurisprudential basis upon which we should do so. It is plainly just that this information should be considered. Mr Patel and those instructing him have only had it very recently and have not had a proper opportunity to consider it. But at any rate, as presented to this court, it appears to be credible material indicating the facts to which I have just alluded. Whether there is any basis for attacking its credibility on more mature consideration is entirely speculative and remains to be considered.

However, on the basis that in his absence the appellant has been sentenced to ten years' imprisonment with labour and a fine, the factual basis on which the Immigration Appeal Tribunal came to its conclusion is undermined. One may assume, taking it at its face value, that if he were returned to Bangladesh he would be arrested and, apart from the possibility of appeal or matters such as that, he would serve his prison sentence. Whether he would serve his prison sentence in a category C Bangladeshi jail of the kind which the Immigration Appeal Tribunal considered is entirely unknown to this court. What is, in my judgment, entirely plain is that, first, the Secretary of State must have the opportunity to consider this material and to consider whether there should be continued opposition to this appellant's appeal in the Immigration Appeal Tribunal; and secondly, if there is continued opposition, this matter should be remitted to the Immigration Appeal Tribunal for them to reconsider the matter on material which includes that which is put before this court.

For these reasons, matters having this morning taken an entirely unexpected turn, in my judgment this appeal should be allowed to enable the matter, if necessary, to be returned to the Immigration Appeal Tribunal for reconsideration.

LORD JUSTICE CARNWATH: I agree.

Whatever the precise limits of this court's power to admit new evidence in such cases as this, I have no doubt that we should do so where there is material which appears to show that the factual basis on which the Tribunal proceeded was, through no fault of its own, simply wrong.

LORD JUSTICE WARD: I agree with both judgments.