EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Mackay of Drumadoon Lord Wheatley	[2011] CSIH 49 XA137/10 OPINION OF THE COURT delivered by LORD CLARKE in the Application for Leave to Appeal under Section 13 of the Tribunals, Courts and Enforcement Act 2007 by A J Applicant: against A Decision of the Upper Tribunal (Asylum and Immigration Chamber) _______

Act: Byrne; Drummond Miller LLP

Alt: MacGregor, Solicitor to The Advocate General

21 July 2011

[1] The applicant is a native of Pakistan who arrived in the United Kingdom on 30 April 2009 when he claimed asylum. He claimed that he is an ethnic Pathan from the Swat area of Pakistan. He said that his home area had come under the control of the Taliban in July 2007 and that he was forced to leave his home village and abandon his business when the fighting became intense. He thereafter moved between his home village and Peshwar. His wife and daughter were killed in an air attack by the Pakistani Air Force on 19 October 2008. He himself returned to his village to seek to rebuild his home. He was visited by members of the Taliban the following day. They told him to join them and to oppose the government who they said were responsible for killing his family. He was told to go to a place known as Sakhra Ghar the following evening for prayers where he would be met and would be told what the Taliban's requirements of him were. The applicant, however, decided to report what had happened, to the Pakistani Army. He travelled to Mangora and informed army representatives there of the Taliban's approach to him. He was advised that the information he had passed on to the army was useful. The Pakistan Army had used the information to locate members of the Taliban.

[2] The applicant became concerned that the Taliban would seek him out, given what he had done. A friend arranged for the applicant to meet an agent who asked for $6,000 to take him to Greece. He sold two vehicles to raise funds and left Pakistan on 2 February 2009. He travelled to Iran where he came under the direction of the agent. He then travelled on to Turkey on 1 April 2009 and then on to Greece on 21 April 2009. The agent then demanded a further payment of €3,000 to bring the applicant to the United Kingdom and he travelled to the United Kingdom by lorry via Italy and France. The applicant claimed that since his arrival in the United Kingdom he had received three faxes from a friend in Pakistan, one of which he said was a copy of a Fatwah issued against him by the Taliban.

[3] The respondent, on 21 May 2009 refused the applicant's claim for asylum. The applicant appealed and this appeal was dismissed by the Asylum and Immigration Tribunal on 7 July 2009. Grounds for reconsideration were submitted and on 11 December 2009 the senior immigration judge decided that there were material errors of law in the immigration judge's determination. The errors in law related to inferences drawn by the immigration judge which, it was considered, were not adequately supported by evidence before him, which inferences formed, at least to some extent, the basis of the immigration judge's adverse decision in relation to the applicant's credibility. In the result the senior immigration judge directed that "There will have to be a further reconsideration hearing at which evidence may be led and all the issues reconsidered." (emphasis added). The subsequent reconsideration hearing took place in the Upper Tribunal before Designated Immigration Judge Murray on 27 May 2010 and on 18 June 2010 Immigration Judge Murray dismissed the applicant's appeal.

[4] The applicant applied to the Upper Tribunal (Immigration and Asylum Chamber) for permission to appeal to this court. The Upper Tribunal on 6 September 2010 refused the application as disclosing no arguable error of law on the part of Immigration Judge Murray. The applicant applied to this court for leave to appeal against the decision of the Upper Tribunal.

[5] In support of his application to this court the applicant relied on four grounds. The first of these grounds was that "The tribunal, on reconsideration, departed from conclusions of the tribunal below which were not vitiated by an error or law." This ground refers to the fact that the immigration judge on reconsideration, departed from supportive findings of fact of the original immigration judge as to the applicant's credibility, when these findings were, as such, not the subject of criticism by the senior immigration judge who had ordered reconsideration. That was, it was submitted, an error in law. This submission was made under reference to, inter alia, DK (Serbia) v Secretary of State for the Home Department [2006] EWCA Civ 1747 where at para. 25 it was said, by the Court of Appeal, as regards the scope of a reconsideration;

"That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interest of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them."

In the present case, however, as we read the senior immigration judge's determination and direction that there should be a reconsideration, he had found the whole approach to the applicant's credibility, arrived at by the tribunal, was undermined by the errors identified. What he, accordingly, ordered was, as we have noted above, "a reconsideration at which evidence may be led and all the issues reconsidered." This was not a case where there was a discrete issue, or issues, which were impugned. In Mukarker v Secretary of State for Home Department C5 2005/2539 (cited in DK (Serbia) at para.18), Sedley LJ said at para. 44:

"If a discrete element of the first determination is faulty, it is that alone which needs to be considered. It seems to me wrong in principle for an entire edifice of reasoning to be dismantled if the defect in it can be remedied by limited intervention, and corresponding right in principle for the AIT to be cautious and explicit about what it remits for redetermination."

In the present case, on our reading of matters, the senior immigration judge remitted the whole case for reconsideration. For these reasons we consider there is no merit in the first ground advanced in support of the application.

[6] The second ground advanced in support of the application was that:

"The Tribunal did not apply the correct standard of proof to enable it to conclude the 'Fatwah' was a forgery/a false document, nor was there any evidence to enable such a conclusion."

At para. 65 of her determination, the immigration judge said:

"The main issue in this case is credibility, whether the Fatwah against the appellant is a genuine document and whether it is likely that it has been broadcast throughout Pakistan. I also have to decide whether there would be a sufficiency of protection for the appellant if he returns to Pakistan and if he is able to relocate internally if he is unable to return to his home area."

Her conclusions ultimately were that there were such discrepancies in the applicant's evidence as to make his story incredible and that, in any event, that he could safely relocate to another area of Pakistan other than his home area. The actual status of the Fatwah document was clearly a highly important factor in this case. As regards it, at para. 77 of her determination, the immigration judge said:

"I have considered the background evidence re fraudulent documents in Pakistan. It is easy to obtain these. ... The Fatwah was supposedly faxed to the appellant from his friend after it was posted in a mosque ... I do not believe the Fatwah is genuine and so I do not believe that the appellant's name will have been broadcast throughout Pakistan on the radio and I do not believe it has been posted in mosques throughout the country." (emphasis added).

It appears that the implication that arises from that last sentence is that if the immigration judge had considered the Fatwah to be genuine it may well have been that it would have been broadcast on the radio throughout Pakistan and posted in mosques throughout the country. At para. 78, the immigration judge continued:

"I believe that on return to Pakistan this appellant will be in no more danger than any other Pakistani citizen. If the Fatwah is a genuine document, I believe it has been falsified or has incorrect content."

It is difficult to understand what the immigration judge was intending to convey by that last sentence or upon what basis her "belief" that the document had been falsified or had incorrect content was founded. Is she saying that the Fatwah might be a genuine Fatwah issued in relation to someone, other than the applicant, which has been altered to appear as if it does refer to the applicant? Is she basing her belief on some general experience (previously referred to by her) that documents emanating from Pakistan are frequently altered or is the belief based on some other unspecified consideration? These and other questions are raised by what the immigration judge says but are left unanswered. At para. 79 of her determination she says "I therefore find that the appellant's account after his family was killed including the issue of the Fatwah is a fabrication." Once again the reader is left asking what is meant by that finding and what it is based upon. Nothing more is said in relation to the status of the Fatwah by the immigration judge in her determination. It was pointed out that the respondent herself apparently took no position that the Fatwah document was a forgery but simply contended that no reliance could be placed upon it. Nevertheless the immigration judge may, it seems, have proceeded on the basis that the document was a forgery. Although the immigration judge never uses the word "forgery" to describe the Fatwah document, the use of the word "fabricate" at para. 79 might lead the reader of the determination to think that this was her primary view of matters as would her remarks at para. 77 "I do not believe the Fatwah is genuine".

[7] In R P (proof of forgery) Nigeria [2006] UKAIT 00086 the tribunal at para. 14 stated:

"In judicial proceedings an allegation of forgery needs to be established to a high degree of proof, by the person making the allegation. This is therefore a matter on which the respondent bears the burden of proof. Immigration Judges decide cases on evidence, and in the absence of any concession by the appellant, an Immigration Judge is not entitled to find or assume that a document is a forgery, or to treat it as a forgery for the purposes of his determination, save on the basis of evidence before him."

That dictum, it was submitted, was applicable to the position in the present case and the principle set out therein were reinforced in the subsequent case of OA (Alleged Forgery: section 108 Procedure) Nigeria
[2007] UKAIT 00096. That case, like the previous case, discussed the procedures which are to be followed where a party alleges that a document relied upon is a forgery and that a disclosure to the party so relying, of a matter relating to the detection of the forgery, would be contrary to the public interest. But there are contained, in our judgment, dicta in those cases which apply generally to cases where the issue of forged documents arises. If the document in question is clearly a material part of the applicant's case, decisions in relation to its status must be based on evidence and not simply on bald assertion. We have already noted that the respondent in this case did not, it seems, claim that the Fatwah document was a forgery. Nevertheless the immigration judge, on one reading at least of her findings, thought it to be so. She did so without specifying what evidence she relied upon to reach that conclusion. If, on the other hand, she did not intend to go so far as her remarks at para. 78 of her determination might suggest, then the reader of her decision is left in the dark as to what her finding regarding the Fatwah if genuine being falsified, or having "incorrect content" means, the last quoted phrase being completely lacking in specification. On that basis we consider that the tribunal has been guilty of an error in law. If the immigration judge considered the document to be a forgery she should have said so in terms and set out reasons based on evidence as to why that was so. If she did not then she had to explain more clearly than she did what the status of the document was, the evidence that she relied upon for that status according to the document and why no reliance could be placed upon it. The status of the Fatwah document was, as we have previously observed, clearly a critical issue in this case. Moreover, as was said in the case of RP (supra) at para. 18: "It is of course right to say that the use of a forged document casts grave doubt upon the credibility of an applicant." Most importantly the issue of the Fatwah was highly material because that was an essential element in the applicant's case that he could not safely relocate in Pakistan. Having regard to these considerations and, in particular, the impact that the treatment of the Fatwah appears to have had on the immigration judge's decision that the applicant could safely relocate himself, there has been, in our judgment, a material error of law on the part of the immigration judge which in itself requires the case to be remitted to the tribunal for reconsideration.

[8] We should, however, deal with the remaining grounds upon which the application was made. The third ground of appeal was that the tribunal misapplied the provisions of section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. This ground relates to what the immigration judge had to say in her determination at para. 75 which was to the following effect:

"With regard to section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, the applicant paid 6,000 dollars to travel to Greece (or his friend paid this out of the money he gave him for the sale of 2 cars). He did not claim asylum in Greece. Instead he paid another 3,000 euros to enable him to come to the United Kingdom. This is a serious credibility issue. He was in a safe European country and coming to the United Kingdom he travelled through at least another 2 European countries and yet he did not claim asylum. Section 8 applies and goes against his credibility."

The immigration judge does not set out the relevant terms of section 8, far less state what precise bearing they had on the applicant's specific case. Section 8, insofar as relevant for present purposes provides as follows:

"S8(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies.

....

(4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country."

[9] The immigration judge does not address the qualifying words "reasonable opportunity" to be found in section 8(4). The applicant had claimed that he did not seek asylum before reaching the United Kingdom as he was under the control of an agent - see the respondent's decision letter at para. 17 and para. 22 of the immigration judge's determination. The immigration judge did not address this explanation. Moreover it has, at least in the past, been recognised that an asylum seeker is entitled to exercise some degree of choice over the country of destination. In R v Uxbridge Magistrates' Court & Another ex parte Adimi [1999] EWHC Admin 765, Simon Brown, LJ, as he then was, said at para. 18

"... I am persuaded ... that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found their protection de jure or de facto from the persecution they were fleeing".

It has to be noted, importantly, that those dicta pre-date the passing of section 8 of the 2004 Act. Nevertheless their content may still, to some extent, give some guidance as to the approach to be taken to the concept of "reasonable opportunity" contained in section 8(4). It has to be noted, in addition, that the immigration judge described the failure to claim asylum in Greece which she described as "a safe country" as a "serious credibility issue". Section 8(4) does not describe any such factor as being "serious". It simply directs that such a failure should be taken into account as damaging the claimant's credibility. No explanation or justification is given by the immigration judge for regarding this matter as a serious credibility issue in the overall context of this case. She appears to have isolated this factor as having some special status and effect of its own as opposed to placing it simply as one of the relevant factors in determining credibility. She thereby, in our judgment, has fallen into the error identified in the case of JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878, in the judgment of Pill LJ with whom the other judges in the Court of Appeal agreed. At para. 16 of his Lordship's judgment, he said:

"I do, however, agree with the parties that there is a real risk that section 8 matters were given a status and a compartment of their own rather than taken into account, as they shall have been, as part of a global assessment of credibility."

[10] Counsel for the applicant went on to submit that, in any event, the applicant did not have a reasonable opportunity to claim asylum and that Greece was not properly described by the immigration judge as a "safe" country because Greece itself returns refugees without considering their claims and holds asylum seekers in conditions that breach article 3 of the European Convention on Human Rights. He referred in that respect, to the case of MSS v Belgium, a decision of the Grand Chamber of the European Court of Human Rights issued on 21 January 2011, after the immigration judge's determination in the present case. We were referred in particular to passages in the judgment at paras. 192, 193 and 225-234 where trenchant criticisms are made by the court of the Greek authority's treatment of asylum seekers. Although that decision post-dates the determination of the immigration judge in the present case, counsel for the applicant submitted that the severe problems facing asylum seekers in Greece were well known within immigration law circles, including tribunals, at the time of the immigration judge's determination. Reference, for example, in this respect was made to the Secretary of State for the Home Department v Nasseri [2009] UKHL 23 where particular problems in relation to the treatment of refugees in Greece were considered and discussed before the House of Lords. We note, however, that the question of the treatment of asylum seekers in Greece was never, it seems, canvassed at all before the immigration judge and we do not consider therefore, this aspect of this ground of appeal, by itself, necessarily raises an error of law on the part of the tribunal. It does however, perhaps, further support the criticism of the immigration judge's approach to section 8, namely that a conclusion was arrived at by her without a proper and reasoned analysis of its provisions and their application to the situation in which the applicant found himself. Her assertion that Greece was a safe country may betray a lack of the careful scrutiny required in a case of this kind. [In addressing the "Greece" question we have not overlooked the fact that the applicant apparently passed through two other European Union countries on his way to the United Kingdom.] Looking at this matter as a whole we have come to the conclusion that, once again the immigration judge made a material error of law in the manner in which she dealt with the section 8 issue.

[11] The fourth ground of appeal on which the applicant based his application was an alleged failure on the part of the immigration judge to take a material factor into account. The contention here was that the tribunal was wrong in finding that there was no reason to suppose that the Taliban was attributing the attack upon them by the Pakistan Army to the information given to the Pakistan Army by the applicant. This was a conclusion which the tribunal arrived at, it was submitted, by failing to take into account that the Taliban had arranged to meet the applicant at a mosque and he had failed to turn up for that meeting. We are satisfied that there is no merit in this ground of appeal. The immigration judge, in our opinion, gives sufficient reasons for her finding in this respect notwithstanding that she had noted that the applicant's evidence about the proposed meeting.

[12] In the whole circumstances, as explained above, we considered that the applicant had demonstrated material errors on the part of the immigration tribunal and we considered also the applicant's challenge to the immigration judge's determination had a reasonable prospect of success. Leave to appeal is accordingly granted in relation to grounds 2 and 3. Having regard to what is said in this opinion, on going on to consider the merits of the appeal we were satisfied that the appeal was well-founded for the reasons given. The case will be remitted to the Upper Tribunal for reconsideration on all issues. Counsel for the respondent agreed that if we were against the respondent on one or more grounds, it would be appropriate that the case be sent back for full reconsideration.