AS (Pakistan) v Secretary of State for the Home Department

AS is a citizen of Pakistan. On 7 January 2005 she applied for asylum for herself and her three children. The basis of her application was that she had suffered serious domestic violence at the hands of her husband in Pakistan and that the authorities there failed to provide her with protection. The Secretary of State refused her application. Amongst other things he considered that if her experiences had been as bad as she described, she would not have put up with them for 11 years before leaving. AS then appealed to an Immigration Judge and in May 2005 he allowed her appeal on asylum and human rights grounds. He did so on the basis of positive credibility findings. The account that he accepted can be summarised as follows: AS has suffered marital troubles over a number of years. Medical reports supported her assertion that she had been subjected to domestic violence over those years and that it had escalated. Reference was made to two specific instances of domestic violence in 2004. The first, in January 2004, involved the forcible administration of poisoning, resulting in hospitalisation and treatment for organophosphorous poisoning; the second, in November 2002, involved AS’s husband banging her head against a wall and causing her significant head injuries, which again resulted in hospitalisation and medical treatment referred to in a medical report.

AS had sought to involve the police but they had refused to become involved because they considered the matters to be of a family or private nature. The medical authorities had also sought to obtain protection for AS, but that again had failed for a similar reason. Also, attempts to gain accommodation in a Women’s Refuge had been unsuccessful through lack of room and AS had had to go back to her husband. On the basis of those facts, as found by the Immigration Judge, he considered that the asylum case was made out. He said:

Following the promulgation of that decision, the Secretary of State sought a reconsideration. On 13 June 2005 a Senior Immigration Judge ordered reconsideration. On 30 January 2006 a panel of the Asylum and Immigration Tribunal (“AIT”) decided that the decision of the Immigration Judge was vitiated by legal error, in that his assessment of risk on return was flawed by a failure to consider a number of matters, including the possibility of re-location in Pakistan. Nevertheless the panel stated:

The fresh evidence, which had been described in outline on 28 June, was not formally served on AS’s representatives until 12 July. Its most significant element was that whereas AS had always maintained that she had only arrived in this country on 5 January 2005 -- and this has been accepted by the Immigration Judge who had allowed her appeal -- in fact she had not entered on that date; she had arrived from Pakistan in June 2004, having obtained a visitor’s visa in her maiden name. She had then gone back to Pakistan in September before returning to this country in December 2004, again relying on a second visa in her maiden name. She has remained here since that date. Plainly this evidence, which AS seeks to explain but does not dispute, is potentially damaging to the account of fear of persecution or ill-treatment on return. The attempt to present her movements in a different way, now accepted to be untrue, is potentially damaging to her credibility in general. Against that background I now come to what took place at the hearing on 18 September. At the outset Miss Veloso, then, as now representing AS, applied for an adjournment. She relied on the contents of a supplementary witness statement made apparently two days earlier which detailed AS’s explanations for her change in story and made reference to potentially significant conversations with her brother and sister-in-law.

The adjournment was refused. The reasons for refusal are contained in paragraph 8 of the ultimate determination of the AIT. They are expressed in this passage:

That refusal of an adjournment is the subject of this appeal. The hearing proceeded and in due course the AIT allowed the appeal of the Secretary of State against the decision of the Immigration Judge and substituted a decision dismissing AS’s application on both asylum and human rights grounds. The salient parts of the decision were as follows:

I now turn to this appeal. Although originally formulated more widely, the basis of it today has concentrated on the refusal of an adjournment. Miss Veloso submits that in the circumstances of this case, that refusal was unjust and procedurally unfair and it was also based on flawed reasoning. Adjournments are dealt with in rule 21 of the Asylum and Immigration Tribunal (Procedure Rules) 2005 in these terms:

It is obvious that the fresh evidence, which was properly adduced before the AIT on behalf of the Secretary of State, was potentially damaging to AS’s case. It was made clear to the AIT, in the course of the application for an adjournment, that the evidence of her movements between Pakistan and the United Kingdom in 2004 was not disputed and that her previous account of arrival here for the first time on 5 January 2005 was untrue. Accordingly, unless she could persuade the AIT to accept her explanation for her previous untruths and for her return to Pakistan and her husband between September and December 2004, her case was destined to fail.

Her explanations were set out in the supplementary witness statement to which I have referred and which, though undated, appears to have been made on 16 September 2006. In it she sought to explain the delay in producing it by reference to logistical difficulties, namely that she was living in Sheffield and her solicitors are in London. She does not speak English. Her explanation for the previous untruths concerning her movements was based on family dynamics. At first she had been advised by her brother N, who is a long term resident in this country, to conceal her two arrivals in 2004 in order to protect her other brother AfK, the immigration officer, who had had some involvement in the visa applications. Secondly, she had returned to Pakistan and her husband in September on the advice of N’s wife, to whom she had given a very diluted account of marital disharmony without mentioning domestic violence. Thirdly, it was only after her return to this country in December that she eventually told N’s wife the real extent of her marital problems and it was at that stage that she was advised to seek international protection, which she proceeded do on 7 January 2005.

She also explained, through the supplementary witness statement and the submissions of Miss Veloso to the AIT, that she wished to call N and his wife to corroborate her explanations, but they were unavailable because she had given birth to a child two days earlier and there had been complications surrounding the birth. The reason why it had not been possible to obtain witness statements from them was that there had been a falling out which had lasted from at least June until 13 September.

I return to the reasons given by the AIT for refusing the adjournment. The first was:

On behalf of the Secretary of State, Mr Hall submits that the statements of N and his wife, which were not before the AIT but are before us, contain nothing useful. I reject that submission. If their evidence were to be accepted it could greatly assist AS’s case. Mr Hall accepts that the statements are not on their face incapable of belief.

Mr Hall’s second point is that it was right to refuse the adjournment because AS had had over two months in which to produce the evidence in witness statement form, but had failed to do so and accordingly she was undeserving of indulgence. I do not accept that submission. It was not one of the reasons given by the AIT and, in any event, AS’s supplementary witness statement provides an explanation for the delay based on the rift in the family, which had only been healed a few days before the recent and difficult childbirth.

Again, as this is not inherently incredible, it does not support the suggestion that the delay required a draconian refusal to adjourn. It is appropriate to keep in mind the context of this appeal. AS is seeking protection under the Refugee Convention and the ECHR on a Shah and Islam basis. We, like the AIT, are in the realm of anxious scrutiny. AS’s case, if true, is a harrowing one. In one sense she has been caught out. However, her explanation deserves full and fair consideration and in my view it was unfair of the AIT to deny her the opportunity to call supporting evidence. It was also wrong to do so on the basis that “she could give the evidence herself”.

I would allow this appeal and remit for a further second-stage reconsideration by the AIT differently constituted. In reaching this conclusion I do not underestimate the difficulties facing AS, but the correct place for determining whether she can in fact surmount them is the AIT and not this court. Nor do I intend to provide comfort for others who may seek to appeal adjournment refusals in other, different cases. This judgment is based on the specific facts of this case and the express reasons given by the AIT.

I record that we have heard no submissions on what would have been a second ground of appeal, namely that the AIT erred by expanding the second-stage reconsideration to embrace matters of credibility which were to some extent apparently foreclosed by the directions given following the first stage reconsideration. Miss Veloso would have sought to rely on DK [Serbia] and Ors v Secretary of State for the Home Department[2006] EWCA Civ 1747. Without deciding the point, I express the view that she would have faced a very difficult task because DK [Serbia] expressly allows for exceptions and it would be difficult to say that the AIT erred by treating the circumstances of this case as exceptional.

I agree that the appeal should be allowed, in particular the reason for the refusal of the adjournment in paragraph 8 of the determination, namely that AS could perfectly well tell the AIT about her conversation with her brother and sister in law was seriously flawed, but nothing said on this appeal should be thought to deter the AIT in the proper exercise of its powers and duties in relation to applications for adjournments under rule 21.

For the reasons they have given, I agree with both of my Lords as to the proper disposal of this case.

The appeal will therefore be allowed.