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

This is an appeal against the determination dated 9 November 2010 of Senior Immigration Judge Eshun (the Senior Immigration Judge: "the SIJ") allowing the Secretary of State's appeal against a determination dated 14 October 2010 of Immigration Judge Henderson (“the IJ”) who had allowed the appellant's appeal against the Secretary of State's refusal of his application for asylum. The appellant is a national of Pakistan who was born on 18 May 1980. He first came to the United Kingdom on a work permit in 2006; that permit was valid until August 2009. In 2008 and 2009 the appellant returned to Pakistan. He came back to the United Kingdom and applied for an extension of his work permit on 8 February 2010; his application for an extension was refused. He nevertheless remained in the United Kingdom and in August 2010 he was arrested whereupon he claimed asylum

In summary the basis of the appellant's claim was that he came from a village called Mughal Khel in South Waziristan within the Federally Administrated Tribal Areas ("FATA") in Pakistan. South Waziristan was described by the Immigration Judge as "the heartland of the Pakistan Taliban". The appellant's village was controlled by the Taliban.

The appellant's case is that he was falsely accused by a relative who had a grudge against him of being an informer who was involved in drone attacks made by the United States authorities on members of the Taliban. As a result, in two letters, one dated 28 February 2009 and the second delivered on 15 March 2010, the appellant's life had been threatened by the Taliban: the letters said in effect that the appellant was wanted dead or alive. The first letter was said to have been pushed under the door of the appellant's father's house and the second to have been delivered to a cousin's shop.

The Immigration Judge accepted that there was a real likelihood that the core of the appellant's account was true and that the two letters calling for the appellant's death did indeed emanate from the Taliban. She concluded that there was a real risk that the appellant would be captured and murdered by the Taliban if he returned to South Waziristan, that he could not realistically seek the protection of the police outside South Waziristan, and that if he was to relocate outside South Waziristan there was a real risk that his whereabouts would in due course be discovered by the Taliban and he would be seriously ill treated or killed.

The Secretary of State appealed against the Immigration Judge's determination. In her determination the Senior Immigration Judge found that the Immigration Judge had made material errors of law. The Senior Immigration Judge therefore set aside the Immigration Judge's determination and remade the decision. The Senior Immigration Judge rejected the appellant's account and, having concluded that he would not be at risk from the Taliban either in South Waziristan or anywhere else in Pakistan, dismissed his appeal.

It is common ground that the Senior Immigration Judge was not entitled to set aside the Immigration Judge's determination and remake the decision merely because she disagreed with the Immigration Judge's factual conclusions. The Secretary of State's appeal against the Immigration Judge's determination could not succeed unless there was a material error of law in the Immigration Judge's determination.

In paragraphs 8 to 10 of her determination the Senior Immigration Judge found that there were three material errors of law in the Immigration Judge's determination. Those errors of law related to the Immigration Judge's conclusions as to: i) the appellant's credibility; ii) the sufficiency of protection that would be available to the appellant if he was returned to Pakistan; and iii) internal relocation.

There are four grounds of appeal. The first three grounds challenge the Senior Immigration Judge's conclusions in respect of the three errors of law. The fourth ground contends that, even if the Senior Immigration Judge was entitled to remake the decision, her assessment of the appellant's credibility was legally flawed. If the first three grounds of appeal succeed ground 4 does not arise.

Before the Immigration Judge the appellant gave oral evidence. The Immigration Judge set out the evidence given at the hearing, including the answers given by the appellant in cross-examination and in response to questions from the Immigration Judge herself. In her conclusions the Immigration Judge said in paragraph 14:

The Immigration Judge then considered in considerable detail, in paragraphs 14 to 19 of her determination, the background material. In paragraph 20 she referred to an expert's report which had been produced on behalf of the appellant by Professor Christopher Bluth, who was a Professor of International Studies at the University of Leeds. Having considered all of that material the Immigration Judge said in paragraph 21:

The Immigration Judge then considered in turn each of the difficulties with the appellant's account which she had identified. The first difficulty was the appellant's claim made in his interview that his family had been threatened by the Taliban since 2007, which of course made it difficult to understand why he would have returned to Pakistan in 2008 and 2009. The Immigration Judge accepted that the appellant had made a mistake in his interview which he had then corrected at the earliest reasonable opportunity bearing in mind the constraints of the fast track system in his full witness statement.

The Immigration Judge dealt with the other difficulties as follows in paragraphs 22 to 24 of her determination:

“22.

I accept that the appellant's father might not immediately have transmitted the gist of the Taliban's letter to the appellant because he knew that he would shortly see him in Lahore and it is entirely possible that there is intermittent telephone contact with the tribal areas. I consider that the appellant has given a reasonable explanation for his father's failure to inform him about the letter without delay. I further accept that the appellant was shocked by the news and that he simply did not ask his father why he had not told him about this earlier. I consider that the appellant did untruthfully embellish his account at the hearing, when he claimed to have attempted to alter the date of his flight to the UK, because this does not appear in his comprehensive witness statement and it appeared to me to be an afterthought. I find in fact that the appellant felt able to live safely in Lahore for a few days until his scheduled departure date and I accept his overall assessment that he would no doubt be safe in Pakistan for a while, if he kept a low profile, but that he would be at risk of coming to the attention of the Taliban sooner or later.

23. I consider that the appellant was further caught out at the hearing, in answer to questions from me, when he said that his brother had moved to DI Khan before January 2009 because of the threats that the Taliban had made against the appellant. I put it to him that, if his story was true, then he had not known of any individual threat before 28th February 2000, and it seemed to me that he became evasive and did not answer the question. Finally, I consider that the appellant's delay in claiming asylum undermines his credibility to some extent, though it is understandable in my view that he should seek to remain in the UK on the basis of a validly held work permit without feeling the need to make an asylum claim. It is harder to understand why he failed to claim asylum once it became apparent that his work permit would not be extended, but in the end I find that he was probably simply fearful that his claim would be rejected.

24. Notwithstanding the difficulties with the appellant's account, I nevertheless find that there is a real likelihood that the core of it is true and that the letters he has produced, calling for his death, in fact emanate from the Taliban. It is surprising, as noted by the respondent, that he only managed to produce one letter at first, but I am prepared to accept his explanation that various trips had to be made to the South Waziristan in order to collect the second letter; if the appellant had obtained the letters fraudulently he would presumably have had no difficulty producing them both at the same time. One of the letters is written in Pushtu and one in Urdu and this anomaly, as well as the fact that they contain apparently capricious allegations, further persuade me that they are more likely to be reliable than documents which might have been more closely tailored to the facts of the case. The appellant has provided a comprehensive and plausible account and he withstood questioning remarkably well at the hearing in my view. I accept that there is a real likelihood that he left Pakistan owing to a well founded fear of being persecuted and that he still has a real fear of return.”

Having reached that conclusion, the Immigration Judge said in paragraphs 25 and 26:

“25.

The issue for me to decide is whether his fear is now objectively well founded. I accept that he would be at risk of being captured and murdered by the Taliban in his home are of South Waziristan. The conflict in that region is clearly far from over and the Taliban, rather than being defeated, seem simply to have retreated for the time being. The Pakistani police force does not operate in South Waziristan and I am satisfied that the Political Agent, to whom the appellant referred at interview and in his witness statement, who administers the FCR in that area, would not be able to offer him any protection. I accept that the appellant sought confirmation that he was wanted from the Political Agent, but that he refused to provide this through fear. This is not surprising since it is clear that Political Agents are only tolerated by the militants if they do not threaten their ascendancy (House of Commons research paper at p31).

26.

I am further satisfied that the appellant could not realistically seek the protection of the police outside South Waziristan. The COIS cites various reports that note that the police service has become increasingly politicised over the years, and is subservient to the demands of local political leaders who use it to intimidate their opponents. Corruption is rife within the service and the Pakistani public regard it as the most corrupt of all public services (at para 9.06). A report by Freedom House noted that the police routinely engaged in crime, excessive force, torture and arbitrary detention, extorted money and accepted bribes to file or withdraw charges. Though accept that the standard of policing in Pakistan is probably variable according to district, the overall picture is of a partly dysfunctional police service, and I agree with the conclusion in Professor Bluth’s report that no police officer would be prepared to confront the Taliban in order to protect an individual, even outside the FATA. I have considered the country guidance of KA & Ors (domestic violence –risk on return) Pakistan CG [2020] UKUT 216, to which I was referred by Ms Parker, but I find that the conclusions about the police in that case are specifically related to its ability to provide effective protection to victims of domestic violence.”

The Immigration Judge then turned to the issue of internal relocation and said in paragraphs 27 and 28:

“27.

I have considered whether the appellant could not reasonably be expected to live in a part of Pakistan outside the FATA and simply hope that the Taliban never found him, but I have concluded that there is a real risk that he would be discovered by the Taliban wherever he may reside. The House of Commons research paper, which is one of the most recent items of background evidence before me, suggests that the reach of the Taliban increasingly extends to towns and cities and that militants have moved there in significant numbers and it is clear that the terrorist attacks in major cities have been increasing since 2008. The Amnesty International report notes that the Pakistani Taliban as a whole operates with a clear chain of command and a high level of discipline, and has demonstrated strong – and growing – operational and strategic cohesion over the past four years (at p30). I accept the appellant’s claim that people from South Waziristan are likely to be associated with the Taliban in the minds of the public – the Amnesty report, for example notes (at page 11) that South Waziristan continues to be widely viewed as one of the main operating bases for Osama bin Laden and members of Al Qa’ida – and I find that it would be difficult for the appellant to maintain a very low profile in a part of Pakistan where there were not high densities of migrants from the FATA. I consider that he might be an object of official suspicion in such areas and that this, in turn, might bring him to the attention of part of the Taliban network. If he were to relocate to an area where there were others from South Waziristan I consider it even more likely that, sooner or later, he would be identified as a person who was wanted by the Taliban.

28.

I am satisfied that the appellant has a well founded fear of being persecuted or seriously ill-treated in his home area of South Waziristan and that he could not safely and reasonably relocate to a different part of Pakistan. The Taliban is a very brutal organisation and apparently wants him dead. Though it is possible that he might escape the attentions of the Taliban in a part of Pakistan that is remote from the FATA, I consider that there is a real risk, which is not fanciful, that he might be discovered there and seriously ill-treated or killed.”

The Senior Immigration Judge's reasons for finding that the Immigration Judge made a material error of law such that her determination had to be set aside are conveniently set out in the annex to her determination, which effectively restates the reasons which she had given in paragraphs 6 to 10 of her determination. After two introductory paragraphs the Senior Immigration Judge's reasons were as follows (I will number them for convenience):

“1.

The IJ identified two inconsistencies in the appellant's account; the first at para 22 was in relation to his embellishment of his account regarding his attempt to alter the date of his flight back to the UK, the second at para 23 was in relation to the date the appellant's brother moved to DI Khan and the reason for that move. This latter discrepancy is particularly significant as it affects the credibility of the first letter i.e. the letter dated 28 February 2009. The appellant had said that his brother had moved to DI Khan before January 2009 because of the threats the Taliban had made against the appellant. The IJ put it to the appellant that, if his story was true, then he had not known of any individual threat before the 20 February 2000 (should be 2010). The appellant became evasive and did not answer the question. Nowhere in the determination does the IJ attempt to reconcile the inconsistency and the appellant's evasiveness with her acceptance of the appellant's core claim.

2.

Regarding ‘sufficiency of protection’, I agree with Miss John that the IJ relied on three pieces of objective information to arrive at her decision that 'no police officer' would be prepared to confront the Taliban in order to protect an individual, even outside the FATA. I however agree with Mr Stanley that the IJ applied a far higher standard of proof than set out by the House of Lords in Horvath. Furthermore, the IJ ignored the objective evidence contained in the COIS, which indicates that the authorities in Pakistan are making concerted efforts to counter Taliban activity. Sufficiency of protection should be considered in the contents of the state as a whole rather than the protection by an individual police officer.

3.

I also agree that in her consideration of internal relocation, the IJ focussed more on the fact that the appellant comes from South Waziristan and in consequences of that, and failed to consider the particular circumstances of this appellant as identified in ground 1 of the respondent's grounds."

I will consider these reasons in turn under the three headings: Credibility, Sufficiency of Protection, and Internal Relocation.

Although the respondent's grounds of appeal to the Upper Tribunal had contended that the Immigration Judge's decision in this respect was both irrational and inadequately reasoned, Mr Symes submitted and Ms Chan accepted that the Senior Immigration Judge had not made any finding that the Immigration Judge's conclusion in paragraph 25 of her determination, namely that the core of the appellant's account was true, was irrational. Mr Symes properly accepted that another Immigration Judge might have reached a different decision and come to the opposite conclusion, namely that the difficulties were such that the appellant's core account should not be believed, and he accepted that such a conclusion would not have been irrational if properly reasoned. However, he submitted, rightly in my judgment, that the fact that a contrary conclusion could properly have been reached did not mean that the Immigration Judge's conclusion in paragraph 25 was perverse. Although the Senior Immigration Judge referred in her reasons to two inconsistencies in paragraph 22 and paragraph 23 of the Immigration Judge's determination respectively, she described only the latter as being of particular significance. Although Ms Chan relied on the inconsistency in paragraph 22, it is difficult in my judgment to see how embellishing the appellant's account by claiming that he had attempted unsuccessfully to alter the date of his flight back to the United Kingdom could sensibly be thought to be of particular significance in any event. It was not further relied upon by the Senior Immigration Judge. I focus therefore on the criticism of the conclusion in paragraph 23 of the Immigration Judge's determination.

It would appear -- although this is not expressly stated in the Senior Immigration Judge's determination -- that the material error of law in the Immigration Judge's determination in this respect was inadequate reasoning, and that the sole respect in which the reasoning was inadequate in the Senior Immigration Judge's view was because the Immigration Judge had not attempted to reconcile the inconsistency in paragraph 23 and the appellant's evasiveness mentioned in that paragraph with her acceptance in paragraph 24 of the appellant's core claim. Ms Chan helpfully reminded us of the decision in MA (Somalia) v SSHD [2010] UKSC 49, [2011] 2 All ER 65 in which the Supreme Court considered the significance of lies told by the appellant. That decision makes it clear that Immigration Judges must be alive to the danger of falling into the trap of dismissing an appeal merely because an appellant has lied (see paragraph 32).

In paragraph 33 Lord Dyson said:

The significance of lies told in any particular case is pre-eminently a matter for the Immigration Judge who has heard the appellant give oral evidence. The Immigration Judge in the present case was well aware of what she described as the "difficulties" with the plausibility of the appellant's account (see paragraph 21 of her determination).

It is not suggested that there were any further difficulties with the account which she had failed to identify. The Immigration Judge carefully considered, in paragraphs 21 to 24 of her determination, each of the difficulties, and having done so concluded that notwithstanding those difficulties, which of course included the discrepancy identified in paragraph 23, which the Senior Immigration Judge considered to be of particular significance, the appellant's core account was true. In this context it should also be remembered that the Immigration Judge had said in paragraph 14 that although there were difficulties with the appellant's account it was "more remarkable for its consistency than for any inconsistencies".

Since it is not said that by reason of the inconsistency which the Immigration Judge had identified in paragraph 23 she was bound to reject the appellant's core account, it seems to me that the Immigration Judge's reasoning on this issue is readily understandable and entirely adequate. Ms Chan submitted that the Immigration Judge was required to go further by way of reasoning and to examine in her reasoning why the appellant had not told the truth, for example as to why he had said that he had tried to alter the date of his flight to the United Kingdom and why he had said that his brother went to DI Khan before 2009 because of the Taliban's threats against the appellant. I do not accept that in order to be legally adequate any further reasoning was required on the part of the Immigration Judge. The determination must be read in a common sense, and not in a pedantic, manner. If that is done it is obvious from the Immigration Judge's determination, and the way in which she focussed upon the truth or otherwise of the core of the appellant's account, that the appellant was in these two respects embellishing his core account. Plainly he was doing so during the course of the hearing because he foolishly thought that such embellishments would improve his case. The Immigration Judge considered whether those particular difficulties and the other difficulties to which she had referred meant that the core of the appellant's claim -- that is to say that he had received threats in the two letters from the Taliban -- was untrue, and concluded that they did not. Thus the Immigration Judge followed the approach in MA (Somalia) and I can see no legal error whatsoever in her approach. Indeed, it could be said that the Senior Immigration Judge's criticism of the Immigration Judge's determination, namely that the Immigration Judge did not attempt to reconcile the inconsistency and the appellant's evasiveness with her acceptance of the appellant's core claim, comes perilously close to falling into the trap identified in MA (Somalia); namely that of concluding that because there is an inconsistency it must follow that the core claim should not be accepted.

The fact that the decision in Horvath v SSHD [2005] UKHL 38, [2000] 3 All ELR 577 was not referred to in the Immigration Judge's determination does not mean that there was a material error of law in the determination. The test for sufficiency of protection is a familiar one and the question is not whether a relevant authority is cited in a determination but whether it is in practice applied by the Immigration Judge when considering the issue. It is common ground that the standard to be applied is not one which eliminates all risk or which offers a guarantee of protection, it is rather a practical standard which takes account of a state's duties to its citizens. The question therefore is whether there is anything in the Immigration Judge's determination which supports the Senior Immigration Judge's view that the Immigration Judge applied some higher standard.

The Senior Immigration Judge asserts that the Immigration Judge applied "a far higher standard of proof than set out by the House of Lords in Horvarth,but she gives no reasons for reaching that conclusion and, reading paragraphs 25 and 26 of the Immigration Judge's determination, I can see no basis for what is no more than an assertion by the Senior Immigration Judge. Ms Chan accepts that the Immigration Judge did not, as the Senior Immigration Judge thought, ignore the objective evidence contained in the COIS, which indicated that the authorities in Pakistan were indeed making concerted efforts to counter Taliban activity. The Immigration Judge set out that evidence in some detail in paragraphs 15 and 16 of her determination. Thus, for example, we find reference to COIS at paragraph 8.01 which states:

In paragraph 16 we find a reference to the information contained in paragraph 8.16 of the COIS, namely that the Pakistan military had begun a ground offensive called After Salvation in South Waziristan in October 2009 in response to a number of recent deadly attacks by the Taliban, including attacks in Islamabad, Fasha, Rawalpindi and Lahore.

The Immigration Judge therefore considered the objective evidence that the authorities in Pakistan were making efforts to counter Taliban activity, but rightly, in the light of Horvath, she was concerned with the practical question: to what extent had those efforts borne fruit? Her conclusion in respect of that issue is to be found in paragraph 25, in which she said:

Ms Chan rightly accepts that that conclusion was open to the Immigration Judge on the evidence before her, which included, importantly, the expert report of Professor Bluth. Thus the position before the Immigration Judge was that whatever efforts the authorities might have been making militarily, they were not able to provide effective protection to a person in the position of this appellant; that is to say someone who was being threatened with death by the Taliban. It seems to me that in adopting that approach the Immigration Judge was applying the practical test in Horvath.

Lastly on this issue, the other point relied upon by the Senior Immigration Judge, namely that sufficiency of protection should be considered in the context of the state as a whole rather than by reference to an individual police officer, is not in issue. Mr Symes accepts that sufficiency of protection must be considered in the context of the state as a whole rather than looking, for example, at what an individual rogue police officer might or might not do. The question is whether the Immigration Judge failed to consider sufficiency of protection by reference to the conduct of the state as a whole and simply focussed on what an individual police officer might do. It would appear that the Senior Immigration Judge's reason for concluding that that was the erroneous approach of the Immigration Judge was the Immigration Judge's reference to the fact that "no police officer" would be prepared to confront the Taliban in order to protect an individual. In my judgment that is simply a misreading of the Immigration Judge's approach. The Immigration Judge accepted the evidence of Professor Bluth in this respect. Neither in Professor Bluth's report nor in the Immigration Judge's acceptance of that evidence is there any concern with the conduct of particular individuals. The concern rather is with the efficacy of police protection in Pakistan for a person such as the appellant who has been threatened with death by the Taliban. That much is plain if one reads paragraph 5.3.2 of Professor Bluth's report in which the proposition is advanced that:

As was pointed out during the course of submissions by Etherton LJ, that conclusion could equally well have been expressed by saying that the police force in Pakistan would not be prepared to confront the Taliban to protect an individual, especially one from the tribal areas. It might be thought that that is a surprising conclusion to reach, but that was the expert evidence which was before this Immigration Judge. That evidence was not effectively challenged in this case which proceeded by way of the fast track procedure. In these circumstances the Immigration Judge was entitled to accept the evidence that was before her. I would readily accept that other expert evidence might have been obtained which might well have disagreed with Professor Bluth's conclusion, but that evidence was not available to this Immigration Judge and it cannot be said that she made a material error of law upon the material that was before her.

The Senior Immigration Judge does not, in my view, identify any error of law under this head. It is unsurprising that the Immigration Judge focussed on the fact that the appellant came from South Waziristan; she did so because she accepted the evidence that South Waziristan was the heartland of the Pakistan Taliban (see paragraph 14 of her determination). The Senior Immigration Judge then contends that the Immigration Judge failed to consider the “particular circumstances” of this appellant, but on the Immigration Judge's findings -- which of course the Senior Immigration Judge did not accept -- the particular circumstances of this appellant were that, if his core case was believed, there had been two letters calling for his death which had emanated from the Taliban; and so the question for the Immigration Judge was whether an individual with those "particular circumstances" could, as the Immigration Judge put it:

It was submitted by Ms Chan that the Immigration Judge in considering this issue had not applied the proper test of real risk, she had simply looked at mere possibilities. Ms Chan referred to various phrases in paragraph 27 of the determination in which the Immigration Judge considered what might occur and submitted that there the Immigration Judge was simply speculating. It is plain in my judgment that the Immigration Judge was alive to, and applied, the proper test. She said at the start of paragraph 27 that she had concluded that there was "a real risk that [ the appellant] would be discovered by the Taliban wherever he might reside" and she reverted to the test in the final sentence of paragraph 28 of her determination, in which she said:

It turned out that the only basis for this contention was the proposition that the Immigration Judge had not discussed how the ethnic origin of the appellant, namely that he originated from South Waziristan, might be discovered. Mr Symes pointed out an example of the appellant's origins being discovered in the appellant's witness statement, which of course was part of the information before the tribunal. The appellant had said that when he returned to Pakistan in 2009 he went to stay at a hotel. He had been given a room. He had been there for a few hours in the hotel when the manager came in and asked him to leave, and the appellant was told by the manager that if anything happened in the city then the police would come to check all the hotel records of who was living in the hotel and if they found a Waziristani person living in the hotel then there would be trouble.

In any event, as Mr Symes pointed out, it would have been wrong for the Immigration Judge to proceed on the basis that the appellant should be expected to conceal his ethnic origins wherever he went in Pakistan for an indefinite period. There was no suggestion on the part of the respondent that the appellant either could or should conceal his ethnic origins, and it seems to me that in these circumstances the Immigration Judge was entitled to consider the matter as she did in paragraph 27 of her determination. The unchallenged premise of Professor Bluth's report was that it would indeed be possible to identify someone who came from South Waziristan. In his report he had said:

In those circumstances the Immigration Judge's conclusions that it would be difficult for the appellant to maintain a very low profile in the part of Pakistan where there were not high densities of migrants from the FATA, and that he might be an object of official suspicion in such areas which might in turn bring him to the attention of the Taliban network, and alternatively that if he did relocate in an area where there were others from South Waziristan, then it was even more likely that sooner or later he would be identified as someone who was wanted by the Taliban, cannot sensibly be said to be either perverse or inadequately reasoned. It is important to bear in mind that the Immigration Judge was required to give reasons for her decision, but she was not required to go further and give reasons for reasons. It seems to me that in essence that is what the Senior Immigration Judge was wrongly requiring her to do.

For these reasons I would allow the appeal on grounds 1 to 3, and it follows that it is unnecessary to consider ground 4.

I agree.

I agree.

So the appeal is allowed. The order of the Senior Immigration Judge of 9 November 2010 is set aside, and the order of the Immigration Judge of 14 October 2010 is restored.