Sunday, November 25, 2012

KU (Pakistan)—specific versus general credibility findings

KU (Pakistan) v Secretary of State for the Home Department [2012] EWCA Civ 107 (17 January 2012) (BAILII)

The appellant was a national of Pakistan whose asylum claim rested on his home village being in an area controlled by the Taliban. The appellant was alleged to have been an informer to the US, facilitating drone strikes. Two letters containing death threats were sent to the appellant, one via his father and the second via a cousin.

The immigration judge found “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.” (para. 4). There was therefore a real risk to the appellant from the Taliban, and in the absence of state protection, and given that the Taliban could likely find him anywhere in Pakistan, asylum was warranted.

The SSHD appealed, and the Senior Immigration Judge set aside the findings on the basis of “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.” (para. 7)

On credibility, the EWCA notes that the Immigration Judge had considered what were called “difficulties” with the appellant’s account. These included why the appellant would return to Pakistan in 2009 if his family had been threatened in 2009, which the Immigration judge found was an error which the appellant had corrected at the earliest possibility. (para. 11)

The Immigration Judge also found that while the appellant may have embellished parts of his story, it was plausible that the appellant’s father had not immediately informed him of the letter or that the appellant may have been so shocked by receiving the letter that he did not discuss the details with his father. Furthermore, the appellant’s delay in claiming was balanced against the fact that when he initially returned to the UK, he had a valid work permit (para. 12, citing paras. 22-23 of the original decision)

The Immigration judge went on to say:

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. (para. 12, citing para. 24 of the original decision)

On the issue of state protection, the Immigration Judge had referred to specific evidence on the lack of it in Pakistan. On the issue of internal relocation (IFA), the Immigration Judge likewise considered and referred to specific evidence.

The Senior Immigration Judge felt that the Immigration Judge did not put sufficient weight on the fact that the appellant had been untruthful. The EWCA referred to “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.” (para. 18)

The significant of a lie was found to be largely a matter for the Immigration Judge, who actually hears oral evidence (para. 20). The EWCa found that the Immigration Judge had properly considered whether the inconsistencies rendered the core of the claim not credible and provided adequate reasons for finding they did not (paras. 21-22).

The Senior Immigration Judge found that the Immigration Judge had not applied the proper test for state protection, as laid out in the case of Horvath v SSHD [2005] UKHL 38, [2000] 3 All ELR 577. The EWCA noted that the fact that the Immigration Judge had not mentioned Horvath was not fatal to the decision. The EWCA noted:

…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. (para. 23)

The EWCA pointed to the fact that the Immigration Judge had noted the evidence that the state in Pakistan was making efforts to fight the Taliban, “but rightly, in the light of Horvath, she was concerned with the practical question: to what extent had those efforts borne fruit?” (para. 26)

Similarly on the issue of IFA, the EWCA found that the Immigration Judge had fully considered the evidence and given reasons for the appellant’s inability to find safety in either ( a) areas with high levels of immigrants from his home region, because those areas would likely be tied in to the Taliban information network, or ( b) areas with very few immigrants from his home region, because he would stand out in those areas.

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