C5/2005/2625
Neutral Citation Number: [2006] EWCA Civ 480
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. AS/10270/2004]
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 15th March 2006
 
B E F O R E:

LORD JUSTICE LAWS

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KHAN
CLAIMANT/APPELLANT
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
DEFENDANT/RESPONDENT
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  (DAR Transcript of 
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR J GILLESPIE (instructed by Messrs Barry Clark, 10 Mornington Villas, Bradford, BD8 7HB) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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J U D G M E N T
1.	LORD JUSTICE LAWS:  This is a renewed application for permission to appeal against the decision of an immigration judge promulgated, I think, on 5 September 2005 following a hearing on 11 August 2005.  The applicant’s asylum claim had been refused by the Secretary of State on 5 May 2004.  His appeal was allowed by the adjudicator on 6 October 2004.  However, that decision was appealed by the Secretary of State and his appeal was allowed by the IAT on 14 April 2005.  But the IAT ordered the matter to be remitted for hearing before a different adjudicator.  In consequence under the transitional provisions made by the new legislative scheme, the matter was dealt with by the immigration judge, who proceeded to dismiss the applicant’s appeal.  Permission to appeal to this court was refused by the AIT on 26 September 2005 and was further refused by Richards LJ on consideration of the papers on 31 January 2006.

2.	The application is a Pakistani national.  He arrived in the United Kingdom on 19 June 2003 and claimed asylum on 23 June 2003.  In his judgment the immigration judge described the nature of his claim as follows:

“10. The Appellant’s asylum claim is based on his fear of return to Pakistan because of his political opinion.  The Appellant was a politically active member of the Pakistan Muslim League (PML-N) since 1987.  In 1998 he became chairman of the Khidmat Committee in Karachi West.  The brief of the Khidmat Committee was to tackle corruption within public authority departments.  The Appellant successfully investigated and registered many cases against the police and various departments of the government including health and education and took action against high profile terrorists and criminals.  These included high level politicians from the Mohajir Quami Movement (MQM).  By way of example the Appellant raided the petrol pump of a MQM senator, Mr Mustafa Kamal.  Mr Kamal’s petrol pumps had been fiddling the petrol and were not delivering the correct amount that was being charged.  The raid attracted much publicity.  The Appellant also raided the petrol pumps of Taj Sheikh, who was a member of the Provincial Assembly for the PPP in Sindh.

“11. After the May elections of 2002 the MQM party took power in Sindh. From January 2003 the Appellant began to receive threats and became aware that he was being followed.  He believed that the people behind these threats were the persons he had arrested and convicted during his time [as] chairman of the Khidmat Committee.  The Appellant informed the local police of his fears but this did not deter the threats.  On 30 April 2003 the Appellant was driving his car in Karachi when he was attacked by unknown men who tried to stop his vehicle.  The Appellant swerved to avoid the vehicle and the men immediately started shooting at the Appellant in his car.  The Appellant immediately reported this attack to the police and requested that a guard should be given to protect him.  The Appellant submitted that no result was achieved as a result of reporting this incident and no guard was provided to protect him.  The Appellant decided that his life was not secure and that he should leave Pakistan.”

3.	In refusing his claim, the Secretary of State expressed the view that there was a sufficiency of protection for the applicant in Pakistan for the purposes of the Refugee Convention.  The immigration judge was to summarise what the Secretary of State said thus:

“12. President Musharraf had taken steps to cleanse the society of terrorism, sectarian violence and intolerance.  In April 2003 the police captured six senior members of the Al-Qaida network in raids in Karachi.  The Respondent was of the view that there was a sufficiency of protection for the Appellant in Pakistan and that the authorities will be able to offer him effective protection.”

4.	The immigration judge found that the applicant was “in the main” a credible witness (see paragraph 27) but he had exaggerated some aspects of his claim (paragraph 30).  The immigration judge expressed his conclusions at paragraphs 33 to 35 of his determination, which I need not set out for the purposes of this judgment.  

5.	There were originally two grounds of appeal.  One was that the immigration judge’s finding that there would be a sufficiency of protection if the applicant were returned to Pakistan is not supported by the evidence, and the second was that the immigration judge’s findings as to internal relocation were insufficiently reasoned.  Mr Gillespie has seen the difficulties that faced the applicant in relation to those grounds, and they were the only matters, as I understand it, before Richards LJ when as I have said, he refused permission on 31 January 2006 and with great respect, so far as those grounds are concerned, it seems to me that he was right to do so.

6.	Since that refusal, Mr Gillespie has, in accordance with the practice direction, put in a written statement to the court in which fresh grounds are raised.  Essentially what is said is that the IAT had no business allowing the appeal on 14 April 2005, because there was no error of law by the adjudicator and the IAT’s jurisdiction in relation to all determinations of adjudicators promulgated since 9 June 2003 was on law only.  Now, the IAT’s conclusions in which they find errors of law are at paragraphs 28 and 29 of their determination:

“28. The claimant’s evidence was that he could not identify his attackers.  He reported the matter to the police and there does not appear to have been any evidence before the Adjudicator from which he might reasonably have concluded that the police were unwilling to investigate the complaint, so far as they were able, within the restriction that the claimant did not know who had attacked him.  Whilst the police did not comply with the claimant’s request for a guard, that in itself does not mean that they were unwilling to offer a sufficiency [of] protection within the terms of Horvath.  We do not find that the Adjudicator was entitled to conclude, as he did in paragraph 32 of his determination, that the Tribunal’s determination in Hussein could be properly distinguished, without more.  We find that the Adjudicator’s error in failing properly to consider the issue of sufficiency of protection amounts to a material error of law.

“29.  Further, whilst the Tribunal’s determination in YL was not before the Adjudicator, nevertheless we find that the Adjudicator erred in any event in failing to explain at all why the inconsistencies, referred to in paragraph 19 of his determination, were minor in nature and why those inconsistencies did not ‘challenge the overall symmetry and substance’ of the claimant’s account.  Mr Andre suggested that paragraph 22 of the Adjudicator’s determination indicated that indicated that the Adjudicator had considered such inconsistencies adequately.  We do not agree.  Paragraph 22 provides no analysis of those inconsistencies and there is no proper reasoning as to why the Adjudicator found inconsistencies within the claimant’s story to be minor and of no consequence.  We find that this error also amounts to a material error of law.”

7.	Mr Gillespie has satisfied me that, at least as regards the matters in paragraph 28, it is arguable that the tribunal was wrong to find errors of law as they describe them in that paragraph.  He relies on the reasoning of the adjudicator, essentially from paragraphs 25 to 32.  The short point is that the adjudicator has there given a factual account that has led him to the conclusion that there would not be a sufficiency of protection, which Mr Gillespie says is at least sustainable on the evidence, and if that is the position then there was not an error of law in his finding as he did.  

8.	There is a further specific point.  The IAT, as their determination demonstrates, held in paragraph 28 that the adjudicator was wrong to distinguish the case of Hussein which had been decided in the IAT on, I think, 31 December 2002.  It seems to me that that also is arguable.  The applicant may have an uphill struggle when it comes to the full appeal, but it seems to me, not least since (as other cases have shown) it is of some considerable importance to see clearly when there is and when there is not an error of law engaging the IAT’s jurisdiction, that there is here a matter properly fit for argument on a full appeal and in those circumstances I will grant permission.  I will say that the constitution may include a High Court Judge, and unless Mr Gillespie has anything to say to the contrary, I would say the time estimate would be an hour and a half.

Order: Application allowed.