[2004] UKIAT 193
- Case title: NS (Human rights, Withdrawal, Arguable thereafter)
- Appellant name: NS
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: India
- Judges: Mr D K Allen, Mr D C Walker, Mr J Nicholson
- Keywords Human rights, Withdrawal, Arguable thereafter
The decision
H-AA-V3
NS (Human rights – Withdrawal –Arguable Thereafter) India [2004] UKIAT 00193
Heard at Field House
On 4 June 2004
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
......14th July 2004.......
Before:
MR D K Allen – Vice President
Mr J Nicholson
Mr D C Walker
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
DETERMINATION AND REASONS
1. The Appellant appeals to the Tribunal with permission against the determination of an Adjudicator, Mr G Dearden, who dismissed his appeal against the Secretary of State’s decision of 27 August 2003 refusing leave to remain in the United Kingdom.
2. The hearing before us took place on 4 June 2004. Mr M S Gill QC for Lyall Solicitors appeared on behalf of the Appellant, and Ms J Sigley appeared on behalf of the Secretary of State.
3. There is an issue in this appeal as to when the Appellant came to the United Kingdom. Previously the Appellant had said that he came in 1993 but subsequently he has contended that he actually arrived in 1988 or 1989. An application for asylum was made on his behalf on 16 August 1993, and that application was refused by the Secretary of State. The Appellant appealed and his appeal was heard by the Adjudicator, Mr C Bennett, who dismissed the appeal, but that determination was subsequently quashed by the Immigration Appeal Tribunal and the matter was remitted for hearing by a different Adjudicator. That hearing took place on 18 February 1997 and the Adjudicator was Mr L J Smith. Again the appeal against refusal of asylum was dismissed, and leave to appeal that decision was refused by the Tribunal.
4. Before Mr Smith the Appellant said that he arrived in the United Kingdom in August 1993. He produced an affidavit purportedly sworn by his mother in which she deposed to the fact her younger son had been killed by the police in a false encounter in 1991 and her son, Mohan Singh (the name under which the Appellant went for a period of time) was also said to be a member of the Khalistan Commando Force (KCF) and to be required by the police.
5. In evidence before Mr Smith the Appellant said that his brother was in fact killed in December 1989 and his mother was in error in the affidavit. He said that he had never been a member of a political party either in the United Kingdom or in India and in fact it was his brother who belonged to the KCF. He had had some dealings with the KCF because of his brother’s membership of that organisation, and when members of the KCF visited his home during his brother’s lifetime he would take them food and drinks, but he said that he did not see any arms.
6. Mr Smith concluded at page 10 of his determination that he believed very little of the Appellant’s evidence which he found to be implausible, full of contradictions, and in the main untrue. He went on to say at page 12 that he did not believe the central matters in the Appellant’s claim for asylum. He noted the discrepancy between the dates given by the Appellant and his mother as to the year in which his brother was killed and commented that he could not imagine a mother getting the year wrong. He also noted the conflict in their evidence as to whether or not the Appellant was a member of the KCF. He noted that the Appellant emphatically denied being a member in contrast to what his mother said. Mr Smith also concluded that a letter from the Gravesend Asian Community Service Agency of 16 August 1993 was a gross exaggeration if the Appellant was telling the truth since it spoke in terms of the Appellant having links with the organisations fighting for the freedom of Khalistan especially the KCF and that he faced heavy torture and persecution by the police when he was in India. All the Appellant had claimed was that he was beaten up and as we have noted above denied having links with the KCF and other organisations fighting for the freedom of Khalistan.
7. Mr Smith also noted a letter written from a person who is described as the Appellant’s advocate who the Appellant said he did not know and he was not his advocate. Again the contents of that document was significantly at variance with what the Appellant claimed including stating that he was a member of the KCF and that criminal false cases were pending against him. Mr Smith commented this letter was totally untrue. Nor did Mr Smith believe that it took the Appellant some eighteen months before an agent was able to arrange for him to leave India. That and other matters considered in the first main paragraph at page 12 of the determination are perhaps not central to his claim but nevertheless were indicative of further matters which caused the Adjudicator to disbelieve the Appellant.
8. At the appeal before Mr Dearden, he noted the refusal letter of 27 August 2003 and another supplementary undated refusal letter. The letter of 27 August 2003 dealt with the Appellant’s wish to remain in the United Kingdom on the basis of length of residence. It noted that the Appellant claimed to have entered the United Kingdom clandestinely on 8 August 1993 and had therefore only lived in the United Kingdom for ten years, although when interviewed upon entering IS detention on 14 July 2003 he claimed that he had been in the United Kingdom since 1989, though it was said that no evidence had been provided to support this claim. The letter went on to refer to paragraphs 276 A-E of the Immigration Rules which were introduced on 1 April 2003 to reflect the previous ministerial statement concerning the question of “normally” regularising the immigration status of those who had resided in the United Kingdom for ten years and also applied to people who had resided in the United Kingdom for fourteen years or more either lawfully or unlawfully. The point was made that the Appellant could not demonstrate either ten years lawful residence or fourteen years lawful and/or unlawful so he could not benefit from the long residence concession. Consideration was given to whether it would be appropriate to allow him to remain outside the Rules exceptionally but it was concluded that there were insufficient circumstances to justify this. It was noted that he had deliberately sought to evade or circumvent immigration control by absconding from temporary admission.
9. Consideration was also given to the Article 3 claim and the Article 8 claim that he made, at paragraph 7 of the letter onwards. The point was noted at paragraph 12 that when the Appellant was interviewed on 14 July 2003 he stated that he had had a passport issued in Birmingham, valid for one year, with the intention of returning to India but did not go as he became unwell. He further stated that the reason for returning was to live in India but that he had changed his mind as he did not get on with his son who lived there. It was considered that he had changed his date of arrival purely to benefit from the fourteen year policy of lawful and/or unlawful residence.
10. Before Mr Dearden the Appellant’s representative, Mr Lyall, indicated that Article 8 of the Human Rights Act was not being pursued at all and the only issues that the Adjudicator needed to trouble himself with were the fourteen year concession and Article 3 of the European Convention on Human Rights.
11. With regard to the fourteen year point, the Appellant maintained that from 1989 he had worked on the M40 road project. He had been given wage slips but said he had destroyed them six or seven years ago. He had produced a letter from a Mr Madigan who stated that he had first met the Appellant in 1988 or 1989 at the time when they were both working for a company called Rehene Construction Limited. He recalled that Mr Singh worked for this company for about two months and the next time he saw him was in 1994 by which time Mr Madigan had set up his own business and Mr Singh approached him for employment and thereafter had worked for him in his construction company. This statement is dated 15 October 2003. It was said that Mr Madigan wished to give evidence but was unavailable on the date of the hearing since he was moving house. An adjournment was sought to enable oral evidence to be given by Mr Madigan. The Adjudicator considered the matter and decided that he would not adjourn and that he would attach such weight to Mr Madigan’s signed witness statement as he thought appropriate.
12. Thereafter the Adjudicator went on to consider Mr Smith’s determination, taking account of the starred Immigration Appeal Tribunal determination in Devaseelan [2002] UKIAT 00702 containing guidelines as to how the second Adjudicator should approach the determination of a first Adjudicator who has heard an appeal by the same Appellant. The Adjudicator found the Appellant to lack credibility, taking account of Mr Smith’s determination and also on the basis of the Appellant’s witness statement and oral evidence before him. He concluded that the Appellant had lied about the date when he first entered the United Kingdom in an effort to bring his case within the provisions of paragraph 276 of HC 395. Having found him to lack credibility he consequently decided not to place very much weight as he put it on the statement of Mr Madigan.
13. Thereafter he went on to consider the Article 3 appeal and concluded that the Appellant did not face a real risk of his Article 3 rights being violated on return, bearing in mind the objective evidence and concluding that even if there were a real risk there was an internal flight alternative.
14. The Adjudicator’s determination was challenged essentially on five basis, as helpfully summed up by the Vice President who granted permission to appeal. The first was that he was in error in rejecting the Appellant’s evidence, secondly that he had attached insufficient weight to Mr Madigan’s statement, thirdly that he erred in his assessment of the Article 3 claim, fourthly that he had erred in his conclusions regarding the issue of internal relocation, fifthly that he had attached undue weight to the findings of Mr Smith.
15. At the start of the hearing we put a point to Mr Gill concerning paragraph 276B(i)(b) of the Immigration Rules. The relevant provisions of paragraph 276B(i)(b) state as follows.
“The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least ten years continuous lawful residence in the United Kingdom; or
(b) he has had at least fourteen years continuous residence in the United Kingdom, excluding any periods spent in the United Kingdom following service of removal directions under paragraphs 8, 9, 10, 10A, 12, 13, and 14 of Schedule 2 of the 1971 Act or Section 10 of the 1999 Act, or of a notice of intention to deport him from the United Kingdom.”
16. We put it to Mr Gill that since it appeared from the IS151B form in the papers before us that the Appellant was served on 21 May 1994 with a notice form IS151A informing him that he was an illegal entrant as defined in Section 33(1) of the Immigration Act 1971, and that directions had now been given for his removal from the United Kingdom by a specified aircraft to India 2200 hours on 31 December 1994, under paragraph 9 or 10 of Schedule 2 to the 1971 Act, that accordingly even if he had been in the United Kingdom since 1988, since any period subsequent to 21 May 1994 had to be excluded from any period of time purporting to make up the fourteen years continuous residency in the United Kingdom, that his claim under this heading could not succeed.
17. Mr Gill argued that the Secretary of State had a discretion as to how he dealt with long residence applications and he could apply them either strictly or in a more relaxed way. The Rules stemmed from the Secretary of State’s discretionary policy. The Secretary of State had not placed reliance on the Rule which came from the policy. The point had not been taken by the Secretary of State against the Appellant and Mr Gill argued that the Tribunal should not apply it and it was too late for the Secretary of State to take the point.
18. He argued that if the Tribunal were against him on this then it would need to remit the appeal to an Adjudicator if the other arguments on remittal were correct and the Appellant had been denied the essence of a fair hearing at trial. A new Adjudicator would consider whether even if the Rule were in play the Secretary of State’s failure to exercise his discretion to ignore the Rule was not in accordance with the law and the Adjudicator would need to look at it in Article 8 terms. The Secretary of State had to weigh up the factors in effecting the Article 8 balance. But in any event if the Secretary of State did not rely upon the Rule then he was precluded from doing so.
19. Ms Sigley referred us to the Reasons for Refusal Letter of 27 August 2003 which at paragraph 3 referred to paragraph 276 A-E of the Immigration Rules and contended that the Appellant could not demonstrate either ten years lawful residence or fourteen years lawful and/or unlawful residence. She accepted that the point that we had raised was not specifically mentioned, but the Secretary of State had said that the Appellant did not come within the Rule and also the issue was there and he did not meet the resident’s requirements of the Rule. It was not the only reason for the refusal also as could be seen from paragraph 4 with reference to the Appellant deliberately seeking to evade or circumvent immigration control. The matter had been considered outside the Rules and that could not be reviewed.
20. By way of reply Mr Gill argued that paragraph 3 of that letter said that the conditions were not met and this was in very general terms. Also evidence had been produced that the Appellant had been in the United Kingdom for fourteen years and the matter had been reconsidered in the undated letter of 2003 at the back of the bundle. This took into account the evidence and implied that that was what concerned the Secretary of State and there was no reference to paragraph 276B(i)(b) at all. Hence the discretion had been exercised on an unlawful basis and if it was going to be relied on this should be done properly and it would have to go back to the Secretary of State to decide whether he relied on it and it was not for the Tribunal to do so.
21. We put to Mr Gill that Ms Sigley appeared to be relying on this provision and he said that it was not the decision of a decision-maker who was balancing all the relevant factors and coming to an informed decision.
22. We put it to Mr Gill that it was clear from paragraph 276 that the application could not succeed if the requirements of the Rules were not met. There was not a discretion contained within the Rule. Mr Gill argued that that was not Article 8 compliant. Mr Gill argued that the Secretary of State needed to be specific and the Rule came from a policy and it was relevant to know how to apply the Rule and the Secretary of State might note the Rule but not rely upon it. If the Secretary of State chose not to rely on a part of a Rule it was not for the Tribunal to decide to apply it and the Secretary of State’s decision should be taken at face value.
23. We adjourned for a few minutes to give consideration to the arguments on this point. We concluded that it was clear that paragraph 276B(i)(b) was applicable to this case. It is clear that from 21 May 1994 at which time the Appellant was served with removal directions under paragraphs 9 or 10 of Schedule 2 to the 1971 Act that the period thereafter has to be excluded from the period of residence in the United Kingdom for the purposes of compliance with the Rule. Accordingly even if the Appellant came to the United Kingdom in 1988 he would not be able to satisfy the requirements of the Rule. The fact that the Rule derives originally from a concession on the part of the Secretary of State does not appear to us to have relevance to what is a clear Rule which has clear application to this appeal. We can see no possible benefit arising from remittal of this matter for consideration by an Adjudicator. An Adjudicator could only come to the same conclusion as that to which we have come. Ms Sigley is clearly relying on this Rule. We accept that the matter was not specifically relied upon in the previous documentation from the Secretary of State, but it would be wholly artificial for us to ignore the existence and implications of this Rule either in the hearing before us or deem it to be a matter that could only properly be dealt with by Adjudicator. Accordingly, we stated that we were against Mr Gill on this point and the matter would not be remitted to an Adjudicator and it was clear from the evidence that the Appellant could not comply with the requirements of the fourteen years continuous residence Rule even if he came to the United Kingdom in 1988 or1989.
24. The next point we raised with Mr Gill which indeed had been touched on in part of his submissions to us on the fourteen years continuous residence point, was the issue of Article 8 of the Human Rights Convention. This formed part of the Appellant’s appeal to the Adjudicator and was considered by the Secretary of State in the Reasons for Refusal Letter of 27 August 2003 to which we have referred above. We have noted above however, that Mr Lyall made it clear, and this is recorded at paragraph 25 of the Adjudicator’s determination, that Article 8 of the Human Rights Act was not being pursued at all and that the only issues with which the Adjudicator needed to trouble himself were the fourteen year concession and Article 3 of the Human Rights Convention. Accordingly the Adjudicator did not come to conclusions on Article 8 and nor has his decision been challenged on the basis of his failure to do so. We put it to Mr Gill that on the face of it, it appeared that Article 8 was not before us.
25. Mr Gill argued that the point that the Tribunal had just ruled on was not at issue before the Adjudicator, and as a consequence this might well be why Mr Lyall had decided to concentrate his submissions on the continuous residence point rather than on Article 8. He argued that if the Tribunal took the approach the requirements of paragraph 276B were not satisfied then that would be it to act in a way which was not compliant with Article 8. In effect Mr Gill argued that the Rule fell foul of Article 8 and suggested that it might be possible for the Tribunal to excise it. He also made the point that the Adjudicator was a public authority and even though the matter was withdrawn from him he still had to satisfy himself that Article 8 was complied with and it was an error of law not to consider it.
26. Ms Sigley argued that the representative had chosen not to pursue the issue and it was not open to the Tribunal to do so today. The Secretary of State had considered all the relevant issues.
27. Mr Gill asked formally to be allowed to vary his grounds of appeal to enable him to argue Article 8.
28. Upon consideration we have concluded that we are against Mr Gill on this point. The Tribunal is a creature of statute. It is clear from Section 101(1) of the Nationality Immigration and Asylum Act 2002 that a party to an appeal to an Adjudicator under Section 82 or 83 of the Act may, with the permission of the Tribunal, appeal to the Tribunal against the Adjudicator’s determination on a point of law. Against that no doubt the point may be made that according to Section 6(1) of the Human Rights Act 1998,
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
29. We do not consider that it can properly be contended that where an issue has been specifically withdrawn from an Adjudicator’s consideration that it is nevertheless an error of law for him not to consider it. Mr Lyall for his own reasons did not rely upon Article 8 before the Adjudicator, making it clear that it was not being pursued at all, and in our view it would have been clearly inappropriate for the Adjudicator in the light of the withdrawal of this ground of appeal as it effectively was nevertheless to go on and consider it. Accordingly it cannot in our view be said to be an error of law for the Adjudicator not to have considered Article 8. There was no challenge to his failure to do so in the grounds of appeal and we can see no possible basis upon which permission would have been granted had such a contention been made. Consequently, we can see no basis upon which the application by Mr Gill to vary the grounds of appeal can possibly succeed. He cannot point to an error of law on the part of the Adjudicator in not considering the Article 8 issue. We do not consider that the fact that the point we have considered above concerning paragraph 276B of the Immigration Rules was not argued at that time can in any sense be said to be relevant to the decision by Mr Lyall not to argue the Article 8 point. None of us knows upon what basis he made that decision. In any event, paragraph 276B was clearly before all the parties at that stage and was a matter that could have been anticipated then as indeed it could have been before us. With regard to Section 6 of the Human Rights Act, we do not consider that that can be properly interpreted as in effect overriding Section 101(1) of the Nationality, Immigration and Asylum Act 2002. There is in our view a significant difference between the kind of case where a human rights issue is raised very late in the day perhaps as late as the hearing in the Tribunal and the Tribunal in the exercise of its obligations under Section 6 of the Human Rights Act has to consider the issue, and the situation we are faced with here where Article 8 was expressly withdrawn from the consideration of the Adjudicator who proceeded entirely properly thereafter not to consider Article 8 in his determination. We do not read Section 6 of the Human Rights Act as in effect expanding the Tribunal’s jurisdiction so as to deal with matters arising from an Adjudicator’s determination which cannot properly be described as errors of law. Accordingly, we concluded that Mr Gill could not be permitted to vary the grounds of appeal and the Article 8 issue was not before us.
30. The remaining issue concerns Article 3 of the Human Rights Convention. Mr Gill mentioned a case of Djebbar which might cause the Devaseelan reasoning to be reconsidered, but accepted that the Tribunal was bound by Devaseelan which is a starred determination. Mr Smith had approached the matter on the basis that the Appellant’s mother was more likely to be correct than the Appellant. He had seemed to prefer her evidence as recorded at paragraph 10 of his determination. He did not seek to address the current risk to a man whose mother said he was a member of the KCF.
31. Mr Dearden had started with Mr Smith’s determination, but Mr Gill argued that Mr Dearden should not have adopted so subservient an approach to Mr Smith’s determination but should have been prepared to query it and then look at the matter in a fresh way. He argued that Mr Dearden’s reasoning on the Article 3 point was affected by his credibility findings and his assessment of the background evidence and those findings were flawed. In particular he took us to paragraph 41 of the determination of Mr Dearden and the various sub-paragraphs. As regards paragraph 41(i), in 1988 and 1989 there was no right of appeal in an asylum claim and the only possible challenge was by way of judicial review and it was perhaps the case that people had kept their heads down and when the right of appeal came in in 1993 the Appellant might have been advised that he had a better chance of success because he would have a right of appeal to an Adjudicator against the Home Office decision. As regards paragraph 41(2) the final sentence was unfair. There had been no cross-examination and no indication that he had been asked whether he had heard of the concession then. There was no suggestion in the Home Office documentation that the Appellant at that time was aware of the fourteen year concession.
32. As regards paragraph 41(3) there would not be Inland Revenue evidence as he had worked without any tax record. There was then the question of the weight to be attached to Mr Madigan’s statement. These credibility findings were flawed. The Adjudicator had gone on to conclude at paragraph 54 that the Appellant was untruthful. He should have noted that Mr Smith appeared to have accepted that the Appellant was involved with the KCF. His finding that he was of interest to no one could not be substantiated if one looked at Mr Smith’s determination. Mr Smith had not rejected what the Appellant's mother said about his membership of the KCF.
33. We asked Mr Gill whether the Appellant having said that he was not a member of the KCF was now saying that he was. Mr Gill said his point was that his case all along was that he had not been a KCF member and he had not been instructed to depart from that. Mr Smith’s findings however were something else as they suggested the mother was accurate and the Appellant was not and there could be a lack of clarity, so Mr Dearden should have looked at the matter more carefully. If he had done so he could have found that at least the Appellant was the brother of an ex-KCF member who seemed to have been killed by the authorities and also Mr Smith’s determination left open the possibility that the Appellant was in fact a KCF member.
34. We asked Mr Gill whether he was saying that the Adjudicator should have found that the Appellant was a KCF member even though he said he was not and Mr Gill replied, yes, if he was taking Mr Smith’s determination as unquestioned.
35. We put to Mr Gill that Mr Smith did not say that the Appellant was a KCF member or that he believed the mother. Mr Gill said, no, but what he did not say was equally instructive and it suggested that the mother was more likely to be truthful. In noting at page 12 the evidence he accepted and rejected, he did not mention the KCF point and he should have made a finding and he seemed to have accepted what the mother said. Mr Dearden should have applied the care that was lacking. Being a member of the KCF was an extra risk since 11 September. There was a cycle of violence largely because of extrajudicial killings of KCF members. The appeal needed to be remitted.
36. In her submissions Ms Sigley argued that Mr Dearden was not hearing the appeal against Mr Smith’s determination. He had properly applied the Devaseelan principles and had considered risk on return. He had properly adopted Mr Smith’s findings. Mr Smith had disbelieved the killing of the brother and accepted that the Appellant had been arrested three times and it was now said that he had not even been arrested in India. The credibility assessment was irrelevant to risk on return but only to whether he was in the United Kingdom in 1989. The case now became weak since he no longer claimed to have been detained by the Indian authorities.
37. The objective evidence was clear. The situation in the Punjab was very much better than before and the position of the Sikhs was significantly improved. Even if he was a person who had a low level connection with Sikh separatists he would not be at risk today. She reminded us of the point in the refusal letter concerning the application for an Indian passport in July 2002. She also referred us to paragraph 6.124 and paragraph 6.136 of the Country Assessment concerning family connections with suspected separatists and relocation.
38. By way of reply, Mr Gill argued that it was the Adjudicator’s determination with which we were concerned and he had not dealt with the point about the passport and so it was not really an issue. Credibility was relevant as it was a divisible concept and the case had to be seen as a whole and one area concerning credibility affected the entire determination.
39. With regard to the background evidence, some concerns remained. He referred us to paragraphs 6.90, 6.95, and 6.109 of the Country Assessment concerning such matters as problems for people actively involved in proscribed organisations and a lack of action against police who had carried out human rights abuses. Paragraphs 6.112 and 6.132 were also of relevance. On a proper scrutiny of the background evidence on the basis of Mr Smith’s determination the adequate primary findings had not been made. The appeal required to be remitted. He also argued that as concerns internal relocation, this was not available for KCF members who would be unsafe anywhere in India.
40. We have noted above Mr Smith’s findings on the issue of risk on return in the context of the credibility of the Appellant’s claim. The Appellant has maintained the claim that he is not a KCF member or terrorist and the only evidence against that is in the affidavit of his mother. The Adjudicator noted the discrepancies as to the date of the killing of the Appellant’s brother as between the mother’s affidavit and the Appellant’s evidence. He commented that he could not imagine a mother getting the year wrong in an affidavit which she knew was going to be very important. He noted the contrast between their evidence as to whether or not the Appellant was a member of the KCF. This was one of a number of factors, as we have set out above, which caused Mr Smith to disbelieve the Appellant. That determination was challenged but the Tribunal refused permission. We do not consider that Mr Smith’s determination can properly be interpreted as containing a finding that he preferred the Appellant’s mother’s evidence as to whether or not he was a member of the KCF. That is hardly a matter in relation to which the Appellant would tell untruths and clearly his claim would be one that would stand a much greater chance of success if he were a member of that organisation than if he were not. Equally, we consider that Mr Smith was entitled to prefer the mother’s evidence concerning the date in which the Appellant’s brother died given that as he stated he would not imagine a mother getting the year of her child’s killing wrong. He was entitled to find aspects of her affidavit more credible than others. He viewed the evidence in the round and concluded as he was entitled to that the Appellant’s claim significantly lacked credibility.
41. When the matter came before Mr Dearden he properly set out the Devaseelan guidelines at paragraph 36 of his determination and also gave careful consideration to Mr Smith’s credibility findings. The Appellant had clearly disowned the letter from the advocate and claimed that he was not a member and had never been a member of the KCF. Mr Dearden noted the point made by Mr Smith concerning the date of death of the brother. He noted that Mr Smith found that the Appellant had been arrested on three occasions, in January 1990, June 1990, and February 1992. On the Appellant’s claim as it now stands, those matters cannot be right since it is now the case, as we have seen, that he claims to have come to the United Kingdom in 1988 or 1989 and therefore his evidence before Mr Smith in this regard on his evidence as it now is clearly false.
42. Mr Dearden went on to consider the Appellant’s evidence before him. He concluded that the Appellant had lied to him. He found it lacking in credibility that the Appellant having originally and for a long time said that he entered the United Kingdom in August 1993 now said that that statement was wrong and the reason for this was that a fellow asylum seeker said that if he gave the true date as being 1988 or 1989 he feared that he would be deported straight away. Mr Dearden found it inherently lacking in credibility that he would be immediately deported because he had been in the country for four years but would not if he had been only in the country for a week. The Tribunal considers that that is a perfectly sound finding. The suggestion by Mr Gill that the Appellant might not have applied for asylum until 1993 because up until that time the only challenge to the Secretary of State’s decision would have been by way of judicial review whereas thereafter he would have been able to challenge that decision by way of an appeal to an Adjudicator strikes us as being pure supposition and there is no evidence to substantiate that contention. We also see force in Mr Dearden’s conclusion that although the Appellant is uneducated, the reason given for not claiming asylum in 1988 or 1989 because an agent advised him that it would harm his case if he claimed asylum straight away clearly lacked sense.
43. As regards paragraph 41(2) of Mr Dearden’s determination, he noted the maintenance of the Appellant’s deception up to and including the time when he appeared before Mr Smith in 1997. Possibly Mr Dearden went too far when indulging in the speculation at the end of sub-paragraph 2 that the Appellant had altered the date when he arrived in order to take advantage of the fourteen year concession, though one can understand why he might have felt tempted to express that view, but it is hardly a matter that materially flaws his determination.
44. He was clearly entitled to note the lack of evidence concerning the Appellant’s ability to support the claim that he came to the United Kingdom in 1988 or 1989. The lack of documentation or any supporting evidence other than the statement of Mr Madigan was clearly a matter that the Adjudicator was entitled to take into account. These are in any event matters that relate to the Adjudicator’s views concerning the Appellant’s ability to satisfy the requirements of the fourteen years continuous residence point. It is clearly separate in his determination from his consideration of the human rights issues which he thereafter went on to consider. We do not consider that his findings on the human rights issues are in any sense affected by his findings on the credibility of the claim in connection with the fourteen years continuous residence application. In any event we consider that taken as a whole his findings in that regard are sound but it is not anyway in any sense determinative of the Article 3 point.
45. Mr Dearden went on to consider the human rights issues in particular from the Amnesty International Report and a Country Report of April 2003 and concluded that the Appellant was not at risk. He based this on the Appellant’s case that his brother had been killed in 1989 or 1991 and that he himself had been arrested on three occasions and was at risk on account of his brother’s involvement with the group. We do not consider that it can properly be argued that in effect Mr Dearden had to operate on the basis that Mr Smith had believed the Appellant’s mother’s contention that the Appellant was a member of the KCF. As we have noted above, he found him to lack credibility and cannot properly be taken to have believed the mother’s evidence on this point. As Ms Sigley pointed out, the Appellant’s case is weakened by the fact that he continues to insist that he came to the United Kingdom prior to the time when he has claimed to have been arrested on three occasions in India which on his own account of events diminishes any interest the authorities would have in him. It is his own case that he has maintained throughout that he has never been a member of or involved except in a very peripheral way with the KCF, and Mr Dearden was entitled, as indeed we consider we are, to take his case as being put on that basis. There is also some marginal relevance to the point concerning the passport application but that is not a determinative factor in our view.
46. Both representatives referred us to the India Country Report of April 2004. It seems from a Canadian report of 1997 that people who are not high profile militant suspects are not at risk in Punjab and it was also said by one panel member that Sikhs with some slight perceived connection to the militancy – through a family member for example – would not now be targets of the Punjab police. Earlier in that report at paragraph 6.114 we see from the Amnesty International Report January 2003 that the majority of the armed opposition groups are currently inactive in Punjab and Amnesty International have received no reports of acts of torture perpetrated [sic] by their members after the end of the militancy period of the mid-1990s. We note also the point at paragraph 6.112 that no more extrajudicial executions take place in Punjab not because of a change of attitude in the police but because there is no terrorism left in the Punjab. Mr Gill commented that this was because all the terrorists had been extrajudicially killed. We note some support for that in paragraph 6.116 where it is said that the hardcore militants have either been physically wiped out or are no longer in India. It is said that there is no obvious support for the militants.
47. Mr Gill accepted that the climate has changed, but argued that for example at paragraph 6.90 it is said that in September 2003 Pakistan handed over 16 Sikh prisoners to the Indian officials as a goodwill gesture and the context of this was not explained. He also referred us to paragraph 6.95 of the same report with reference to torture and custodial violence continuing to be regularly reported in Punjab despite the end of the militancy period, and the point at paragraph 6.109 concerning a lack of any action taken against 100 police officials under investigation for abuses committed whilst suppressing the violent insurgency in Punjab. We also bear in mind the point to which Ms Sigley drew our attention concerning internal relocation for Sikhs who are said at paragraph 6.136 to be able to relocate elsewhere in India and as Sikhs are a mobile community there are Sikh communities all over India.
48. The Appellant’s claim has to be seen in the context of this evidence. On his own claim which there is no reason to disbelieve he has never been a member of the KCF. The only possible risk he would face on that account is by association with his brother who was killed a number of years ago at a time when militancy was a significant problem in Punjab and it is clear from the evidence that it no longer is. In the current climate we see no real risk to the Appellant on return to Punjab. In the light of his history as properly found we consider that if he felt any concern about returning to Punjab then it is clear from the Country Report that he could relocate elsewhere. He is not a KCF member and there is no reason to suppose that he would be of interest to anybody anywhere in India whether in Punjab or elsewhere.
49. This appeal is dismissed.
D K ALLEN
VICE PRESIDENT
NS (Human rights – Withdrawal –Arguable Thereafter) India [2004] UKIAT 00193
Heard at Field House
On 4 June 2004
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
......14th July 2004.......
Before:
MR D K Allen – Vice President
Mr J Nicholson
Mr D C Walker
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
DETERMINATION AND REASONS
1. The Appellant appeals to the Tribunal with permission against the determination of an Adjudicator, Mr G Dearden, who dismissed his appeal against the Secretary of State’s decision of 27 August 2003 refusing leave to remain in the United Kingdom.
2. The hearing before us took place on 4 June 2004. Mr M S Gill QC for Lyall Solicitors appeared on behalf of the Appellant, and Ms J Sigley appeared on behalf of the Secretary of State.
3. There is an issue in this appeal as to when the Appellant came to the United Kingdom. Previously the Appellant had said that he came in 1993 but subsequently he has contended that he actually arrived in 1988 or 1989. An application for asylum was made on his behalf on 16 August 1993, and that application was refused by the Secretary of State. The Appellant appealed and his appeal was heard by the Adjudicator, Mr C Bennett, who dismissed the appeal, but that determination was subsequently quashed by the Immigration Appeal Tribunal and the matter was remitted for hearing by a different Adjudicator. That hearing took place on 18 February 1997 and the Adjudicator was Mr L J Smith. Again the appeal against refusal of asylum was dismissed, and leave to appeal that decision was refused by the Tribunal.
4. Before Mr Smith the Appellant said that he arrived in the United Kingdom in August 1993. He produced an affidavit purportedly sworn by his mother in which she deposed to the fact her younger son had been killed by the police in a false encounter in 1991 and her son, Mohan Singh (the name under which the Appellant went for a period of time) was also said to be a member of the Khalistan Commando Force (KCF) and to be required by the police.
5. In evidence before Mr Smith the Appellant said that his brother was in fact killed in December 1989 and his mother was in error in the affidavit. He said that he had never been a member of a political party either in the United Kingdom or in India and in fact it was his brother who belonged to the KCF. He had had some dealings with the KCF because of his brother’s membership of that organisation, and when members of the KCF visited his home during his brother’s lifetime he would take them food and drinks, but he said that he did not see any arms.
6. Mr Smith concluded at page 10 of his determination that he believed very little of the Appellant’s evidence which he found to be implausible, full of contradictions, and in the main untrue. He went on to say at page 12 that he did not believe the central matters in the Appellant’s claim for asylum. He noted the discrepancy between the dates given by the Appellant and his mother as to the year in which his brother was killed and commented that he could not imagine a mother getting the year wrong. He also noted the conflict in their evidence as to whether or not the Appellant was a member of the KCF. He noted that the Appellant emphatically denied being a member in contrast to what his mother said. Mr Smith also concluded that a letter from the Gravesend Asian Community Service Agency of 16 August 1993 was a gross exaggeration if the Appellant was telling the truth since it spoke in terms of the Appellant having links with the organisations fighting for the freedom of Khalistan especially the KCF and that he faced heavy torture and persecution by the police when he was in India. All the Appellant had claimed was that he was beaten up and as we have noted above denied having links with the KCF and other organisations fighting for the freedom of Khalistan.
7. Mr Smith also noted a letter written from a person who is described as the Appellant’s advocate who the Appellant said he did not know and he was not his advocate. Again the contents of that document was significantly at variance with what the Appellant claimed including stating that he was a member of the KCF and that criminal false cases were pending against him. Mr Smith commented this letter was totally untrue. Nor did Mr Smith believe that it took the Appellant some eighteen months before an agent was able to arrange for him to leave India. That and other matters considered in the first main paragraph at page 12 of the determination are perhaps not central to his claim but nevertheless were indicative of further matters which caused the Adjudicator to disbelieve the Appellant.
8. At the appeal before Mr Dearden, he noted the refusal letter of 27 August 2003 and another supplementary undated refusal letter. The letter of 27 August 2003 dealt with the Appellant’s wish to remain in the United Kingdom on the basis of length of residence. It noted that the Appellant claimed to have entered the United Kingdom clandestinely on 8 August 1993 and had therefore only lived in the United Kingdom for ten years, although when interviewed upon entering IS detention on 14 July 2003 he claimed that he had been in the United Kingdom since 1989, though it was said that no evidence had been provided to support this claim. The letter went on to refer to paragraphs 276 A-E of the Immigration Rules which were introduced on 1 April 2003 to reflect the previous ministerial statement concerning the question of “normally” regularising the immigration status of those who had resided in the United Kingdom for ten years and also applied to people who had resided in the United Kingdom for fourteen years or more either lawfully or unlawfully. The point was made that the Appellant could not demonstrate either ten years lawful residence or fourteen years lawful and/or unlawful so he could not benefit from the long residence concession. Consideration was given to whether it would be appropriate to allow him to remain outside the Rules exceptionally but it was concluded that there were insufficient circumstances to justify this. It was noted that he had deliberately sought to evade or circumvent immigration control by absconding from temporary admission.
9. Consideration was also given to the Article 3 claim and the Article 8 claim that he made, at paragraph 7 of the letter onwards. The point was noted at paragraph 12 that when the Appellant was interviewed on 14 July 2003 he stated that he had had a passport issued in Birmingham, valid for one year, with the intention of returning to India but did not go as he became unwell. He further stated that the reason for returning was to live in India but that he had changed his mind as he did not get on with his son who lived there. It was considered that he had changed his date of arrival purely to benefit from the fourteen year policy of lawful and/or unlawful residence.
10. Before Mr Dearden the Appellant’s representative, Mr Lyall, indicated that Article 8 of the Human Rights Act was not being pursued at all and the only issues that the Adjudicator needed to trouble himself with were the fourteen year concession and Article 3 of the European Convention on Human Rights.
11. With regard to the fourteen year point, the Appellant maintained that from 1989 he had worked on the M40 road project. He had been given wage slips but said he had destroyed them six or seven years ago. He had produced a letter from a Mr Madigan who stated that he had first met the Appellant in 1988 or 1989 at the time when they were both working for a company called Rehene Construction Limited. He recalled that Mr Singh worked for this company for about two months and the next time he saw him was in 1994 by which time Mr Madigan had set up his own business and Mr Singh approached him for employment and thereafter had worked for him in his construction company. This statement is dated 15 October 2003. It was said that Mr Madigan wished to give evidence but was unavailable on the date of the hearing since he was moving house. An adjournment was sought to enable oral evidence to be given by Mr Madigan. The Adjudicator considered the matter and decided that he would not adjourn and that he would attach such weight to Mr Madigan’s signed witness statement as he thought appropriate.
12. Thereafter the Adjudicator went on to consider Mr Smith’s determination, taking account of the starred Immigration Appeal Tribunal determination in Devaseelan [2002] UKIAT 00702 containing guidelines as to how the second Adjudicator should approach the determination of a first Adjudicator who has heard an appeal by the same Appellant. The Adjudicator found the Appellant to lack credibility, taking account of Mr Smith’s determination and also on the basis of the Appellant’s witness statement and oral evidence before him. He concluded that the Appellant had lied about the date when he first entered the United Kingdom in an effort to bring his case within the provisions of paragraph 276 of HC 395. Having found him to lack credibility he consequently decided not to place very much weight as he put it on the statement of Mr Madigan.
13. Thereafter he went on to consider the Article 3 appeal and concluded that the Appellant did not face a real risk of his Article 3 rights being violated on return, bearing in mind the objective evidence and concluding that even if there were a real risk there was an internal flight alternative.
14. The Adjudicator’s determination was challenged essentially on five basis, as helpfully summed up by the Vice President who granted permission to appeal. The first was that he was in error in rejecting the Appellant’s evidence, secondly that he had attached insufficient weight to Mr Madigan’s statement, thirdly that he erred in his assessment of the Article 3 claim, fourthly that he had erred in his conclusions regarding the issue of internal relocation, fifthly that he had attached undue weight to the findings of Mr Smith.
15. At the start of the hearing we put a point to Mr Gill concerning paragraph 276B(i)(b) of the Immigration Rules. The relevant provisions of paragraph 276B(i)(b) state as follows.
“The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least ten years continuous lawful residence in the United Kingdom; or
(b) he has had at least fourteen years continuous residence in the United Kingdom, excluding any periods spent in the United Kingdom following service of removal directions under paragraphs 8, 9, 10, 10A, 12, 13, and 14 of Schedule 2 of the 1971 Act or Section 10 of the 1999 Act, or of a notice of intention to deport him from the United Kingdom.”
16. We put it to Mr Gill that since it appeared from the IS151B form in the papers before us that the Appellant was served on 21 May 1994 with a notice form IS151A informing him that he was an illegal entrant as defined in Section 33(1) of the Immigration Act 1971, and that directions had now been given for his removal from the United Kingdom by a specified aircraft to India 2200 hours on 31 December 1994, under paragraph 9 or 10 of Schedule 2 to the 1971 Act, that accordingly even if he had been in the United Kingdom since 1988, since any period subsequent to 21 May 1994 had to be excluded from any period of time purporting to make up the fourteen years continuous residency in the United Kingdom, that his claim under this heading could not succeed.
17. Mr Gill argued that the Secretary of State had a discretion as to how he dealt with long residence applications and he could apply them either strictly or in a more relaxed way. The Rules stemmed from the Secretary of State’s discretionary policy. The Secretary of State had not placed reliance on the Rule which came from the policy. The point had not been taken by the Secretary of State against the Appellant and Mr Gill argued that the Tribunal should not apply it and it was too late for the Secretary of State to take the point.
18. He argued that if the Tribunal were against him on this then it would need to remit the appeal to an Adjudicator if the other arguments on remittal were correct and the Appellant had been denied the essence of a fair hearing at trial. A new Adjudicator would consider whether even if the Rule were in play the Secretary of State’s failure to exercise his discretion to ignore the Rule was not in accordance with the law and the Adjudicator would need to look at it in Article 8 terms. The Secretary of State had to weigh up the factors in effecting the Article 8 balance. But in any event if the Secretary of State did not rely upon the Rule then he was precluded from doing so.
19. Ms Sigley referred us to the Reasons for Refusal Letter of 27 August 2003 which at paragraph 3 referred to paragraph 276 A-E of the Immigration Rules and contended that the Appellant could not demonstrate either ten years lawful residence or fourteen years lawful and/or unlawful residence. She accepted that the point that we had raised was not specifically mentioned, but the Secretary of State had said that the Appellant did not come within the Rule and also the issue was there and he did not meet the resident’s requirements of the Rule. It was not the only reason for the refusal also as could be seen from paragraph 4 with reference to the Appellant deliberately seeking to evade or circumvent immigration control. The matter had been considered outside the Rules and that could not be reviewed.
20. By way of reply Mr Gill argued that paragraph 3 of that letter said that the conditions were not met and this was in very general terms. Also evidence had been produced that the Appellant had been in the United Kingdom for fourteen years and the matter had been reconsidered in the undated letter of 2003 at the back of the bundle. This took into account the evidence and implied that that was what concerned the Secretary of State and there was no reference to paragraph 276B(i)(b) at all. Hence the discretion had been exercised on an unlawful basis and if it was going to be relied on this should be done properly and it would have to go back to the Secretary of State to decide whether he relied on it and it was not for the Tribunal to do so.
21. We put to Mr Gill that Ms Sigley appeared to be relying on this provision and he said that it was not the decision of a decision-maker who was balancing all the relevant factors and coming to an informed decision.
22. We put it to Mr Gill that it was clear from paragraph 276 that the application could not succeed if the requirements of the Rules were not met. There was not a discretion contained within the Rule. Mr Gill argued that that was not Article 8 compliant. Mr Gill argued that the Secretary of State needed to be specific and the Rule came from a policy and it was relevant to know how to apply the Rule and the Secretary of State might note the Rule but not rely upon it. If the Secretary of State chose not to rely on a part of a Rule it was not for the Tribunal to decide to apply it and the Secretary of State’s decision should be taken at face value.
23. We adjourned for a few minutes to give consideration to the arguments on this point. We concluded that it was clear that paragraph 276B(i)(b) was applicable to this case. It is clear that from 21 May 1994 at which time the Appellant was served with removal directions under paragraphs 9 or 10 of Schedule 2 to the 1971 Act that the period thereafter has to be excluded from the period of residence in the United Kingdom for the purposes of compliance with the Rule. Accordingly even if the Appellant came to the United Kingdom in 1988 he would not be able to satisfy the requirements of the Rule. The fact that the Rule derives originally from a concession on the part of the Secretary of State does not appear to us to have relevance to what is a clear Rule which has clear application to this appeal. We can see no possible benefit arising from remittal of this matter for consideration by an Adjudicator. An Adjudicator could only come to the same conclusion as that to which we have come. Ms Sigley is clearly relying on this Rule. We accept that the matter was not specifically relied upon in the previous documentation from the Secretary of State, but it would be wholly artificial for us to ignore the existence and implications of this Rule either in the hearing before us or deem it to be a matter that could only properly be dealt with by Adjudicator. Accordingly, we stated that we were against Mr Gill on this point and the matter would not be remitted to an Adjudicator and it was clear from the evidence that the Appellant could not comply with the requirements of the fourteen years continuous residence Rule even if he came to the United Kingdom in 1988 or1989.
24. The next point we raised with Mr Gill which indeed had been touched on in part of his submissions to us on the fourteen years continuous residence point, was the issue of Article 8 of the Human Rights Convention. This formed part of the Appellant’s appeal to the Adjudicator and was considered by the Secretary of State in the Reasons for Refusal Letter of 27 August 2003 to which we have referred above. We have noted above however, that Mr Lyall made it clear, and this is recorded at paragraph 25 of the Adjudicator’s determination, that Article 8 of the Human Rights Act was not being pursued at all and that the only issues with which the Adjudicator needed to trouble himself were the fourteen year concession and Article 3 of the Human Rights Convention. Accordingly the Adjudicator did not come to conclusions on Article 8 and nor has his decision been challenged on the basis of his failure to do so. We put it to Mr Gill that on the face of it, it appeared that Article 8 was not before us.
25. Mr Gill argued that the point that the Tribunal had just ruled on was not at issue before the Adjudicator, and as a consequence this might well be why Mr Lyall had decided to concentrate his submissions on the continuous residence point rather than on Article 8. He argued that if the Tribunal took the approach the requirements of paragraph 276B were not satisfied then that would be it to act in a way which was not compliant with Article 8. In effect Mr Gill argued that the Rule fell foul of Article 8 and suggested that it might be possible for the Tribunal to excise it. He also made the point that the Adjudicator was a public authority and even though the matter was withdrawn from him he still had to satisfy himself that Article 8 was complied with and it was an error of law not to consider it.
26. Ms Sigley argued that the representative had chosen not to pursue the issue and it was not open to the Tribunal to do so today. The Secretary of State had considered all the relevant issues.
27. Mr Gill asked formally to be allowed to vary his grounds of appeal to enable him to argue Article 8.
28. Upon consideration we have concluded that we are against Mr Gill on this point. The Tribunal is a creature of statute. It is clear from Section 101(1) of the Nationality Immigration and Asylum Act 2002 that a party to an appeal to an Adjudicator under Section 82 or 83 of the Act may, with the permission of the Tribunal, appeal to the Tribunal against the Adjudicator’s determination on a point of law. Against that no doubt the point may be made that according to Section 6(1) of the Human Rights Act 1998,
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
29. We do not consider that it can properly be contended that where an issue has been specifically withdrawn from an Adjudicator’s consideration that it is nevertheless an error of law for him not to consider it. Mr Lyall for his own reasons did not rely upon Article 8 before the Adjudicator, making it clear that it was not being pursued at all, and in our view it would have been clearly inappropriate for the Adjudicator in the light of the withdrawal of this ground of appeal as it effectively was nevertheless to go on and consider it. Accordingly it cannot in our view be said to be an error of law for the Adjudicator not to have considered Article 8. There was no challenge to his failure to do so in the grounds of appeal and we can see no possible basis upon which permission would have been granted had such a contention been made. Consequently, we can see no basis upon which the application by Mr Gill to vary the grounds of appeal can possibly succeed. He cannot point to an error of law on the part of the Adjudicator in not considering the Article 8 issue. We do not consider that the fact that the point we have considered above concerning paragraph 276B of the Immigration Rules was not argued at that time can in any sense be said to be relevant to the decision by Mr Lyall not to argue the Article 8 point. None of us knows upon what basis he made that decision. In any event, paragraph 276B was clearly before all the parties at that stage and was a matter that could have been anticipated then as indeed it could have been before us. With regard to Section 6 of the Human Rights Act, we do not consider that that can be properly interpreted as in effect overriding Section 101(1) of the Nationality, Immigration and Asylum Act 2002. There is in our view a significant difference between the kind of case where a human rights issue is raised very late in the day perhaps as late as the hearing in the Tribunal and the Tribunal in the exercise of its obligations under Section 6 of the Human Rights Act has to consider the issue, and the situation we are faced with here where Article 8 was expressly withdrawn from the consideration of the Adjudicator who proceeded entirely properly thereafter not to consider Article 8 in his determination. We do not read Section 6 of the Human Rights Act as in effect expanding the Tribunal’s jurisdiction so as to deal with matters arising from an Adjudicator’s determination which cannot properly be described as errors of law. Accordingly, we concluded that Mr Gill could not be permitted to vary the grounds of appeal and the Article 8 issue was not before us.
30. The remaining issue concerns Article 3 of the Human Rights Convention. Mr Gill mentioned a case of Djebbar which might cause the Devaseelan reasoning to be reconsidered, but accepted that the Tribunal was bound by Devaseelan which is a starred determination. Mr Smith had approached the matter on the basis that the Appellant’s mother was more likely to be correct than the Appellant. He had seemed to prefer her evidence as recorded at paragraph 10 of his determination. He did not seek to address the current risk to a man whose mother said he was a member of the KCF.
31. Mr Dearden had started with Mr Smith’s determination, but Mr Gill argued that Mr Dearden should not have adopted so subservient an approach to Mr Smith’s determination but should have been prepared to query it and then look at the matter in a fresh way. He argued that Mr Dearden’s reasoning on the Article 3 point was affected by his credibility findings and his assessment of the background evidence and those findings were flawed. In particular he took us to paragraph 41 of the determination of Mr Dearden and the various sub-paragraphs. As regards paragraph 41(i), in 1988 and 1989 there was no right of appeal in an asylum claim and the only possible challenge was by way of judicial review and it was perhaps the case that people had kept their heads down and when the right of appeal came in in 1993 the Appellant might have been advised that he had a better chance of success because he would have a right of appeal to an Adjudicator against the Home Office decision. As regards paragraph 41(2) the final sentence was unfair. There had been no cross-examination and no indication that he had been asked whether he had heard of the concession then. There was no suggestion in the Home Office documentation that the Appellant at that time was aware of the fourteen year concession.
32. As regards paragraph 41(3) there would not be Inland Revenue evidence as he had worked without any tax record. There was then the question of the weight to be attached to Mr Madigan’s statement. These credibility findings were flawed. The Adjudicator had gone on to conclude at paragraph 54 that the Appellant was untruthful. He should have noted that Mr Smith appeared to have accepted that the Appellant was involved with the KCF. His finding that he was of interest to no one could not be substantiated if one looked at Mr Smith’s determination. Mr Smith had not rejected what the Appellant's mother said about his membership of the KCF.
33. We asked Mr Gill whether the Appellant having said that he was not a member of the KCF was now saying that he was. Mr Gill said his point was that his case all along was that he had not been a KCF member and he had not been instructed to depart from that. Mr Smith’s findings however were something else as they suggested the mother was accurate and the Appellant was not and there could be a lack of clarity, so Mr Dearden should have looked at the matter more carefully. If he had done so he could have found that at least the Appellant was the brother of an ex-KCF member who seemed to have been killed by the authorities and also Mr Smith’s determination left open the possibility that the Appellant was in fact a KCF member.
34. We asked Mr Gill whether he was saying that the Adjudicator should have found that the Appellant was a KCF member even though he said he was not and Mr Gill replied, yes, if he was taking Mr Smith’s determination as unquestioned.
35. We put to Mr Gill that Mr Smith did not say that the Appellant was a KCF member or that he believed the mother. Mr Gill said, no, but what he did not say was equally instructive and it suggested that the mother was more likely to be truthful. In noting at page 12 the evidence he accepted and rejected, he did not mention the KCF point and he should have made a finding and he seemed to have accepted what the mother said. Mr Dearden should have applied the care that was lacking. Being a member of the KCF was an extra risk since 11 September. There was a cycle of violence largely because of extrajudicial killings of KCF members. The appeal needed to be remitted.
36. In her submissions Ms Sigley argued that Mr Dearden was not hearing the appeal against Mr Smith’s determination. He had properly applied the Devaseelan principles and had considered risk on return. He had properly adopted Mr Smith’s findings. Mr Smith had disbelieved the killing of the brother and accepted that the Appellant had been arrested three times and it was now said that he had not even been arrested in India. The credibility assessment was irrelevant to risk on return but only to whether he was in the United Kingdom in 1989. The case now became weak since he no longer claimed to have been detained by the Indian authorities.
37. The objective evidence was clear. The situation in the Punjab was very much better than before and the position of the Sikhs was significantly improved. Even if he was a person who had a low level connection with Sikh separatists he would not be at risk today. She reminded us of the point in the refusal letter concerning the application for an Indian passport in July 2002. She also referred us to paragraph 6.124 and paragraph 6.136 of the Country Assessment concerning family connections with suspected separatists and relocation.
38. By way of reply, Mr Gill argued that it was the Adjudicator’s determination with which we were concerned and he had not dealt with the point about the passport and so it was not really an issue. Credibility was relevant as it was a divisible concept and the case had to be seen as a whole and one area concerning credibility affected the entire determination.
39. With regard to the background evidence, some concerns remained. He referred us to paragraphs 6.90, 6.95, and 6.109 of the Country Assessment concerning such matters as problems for people actively involved in proscribed organisations and a lack of action against police who had carried out human rights abuses. Paragraphs 6.112 and 6.132 were also of relevance. On a proper scrutiny of the background evidence on the basis of Mr Smith’s determination the adequate primary findings had not been made. The appeal required to be remitted. He also argued that as concerns internal relocation, this was not available for KCF members who would be unsafe anywhere in India.
40. We have noted above Mr Smith’s findings on the issue of risk on return in the context of the credibility of the Appellant’s claim. The Appellant has maintained the claim that he is not a KCF member or terrorist and the only evidence against that is in the affidavit of his mother. The Adjudicator noted the discrepancies as to the date of the killing of the Appellant’s brother as between the mother’s affidavit and the Appellant’s evidence. He commented that he could not imagine a mother getting the year wrong in an affidavit which she knew was going to be very important. He noted the contrast between their evidence as to whether or not the Appellant was a member of the KCF. This was one of a number of factors, as we have set out above, which caused Mr Smith to disbelieve the Appellant. That determination was challenged but the Tribunal refused permission. We do not consider that Mr Smith’s determination can properly be interpreted as containing a finding that he preferred the Appellant’s mother’s evidence as to whether or not he was a member of the KCF. That is hardly a matter in relation to which the Appellant would tell untruths and clearly his claim would be one that would stand a much greater chance of success if he were a member of that organisation than if he were not. Equally, we consider that Mr Smith was entitled to prefer the mother’s evidence concerning the date in which the Appellant’s brother died given that as he stated he would not imagine a mother getting the year of her child’s killing wrong. He was entitled to find aspects of her affidavit more credible than others. He viewed the evidence in the round and concluded as he was entitled to that the Appellant’s claim significantly lacked credibility.
41. When the matter came before Mr Dearden he properly set out the Devaseelan guidelines at paragraph 36 of his determination and also gave careful consideration to Mr Smith’s credibility findings. The Appellant had clearly disowned the letter from the advocate and claimed that he was not a member and had never been a member of the KCF. Mr Dearden noted the point made by Mr Smith concerning the date of death of the brother. He noted that Mr Smith found that the Appellant had been arrested on three occasions, in January 1990, June 1990, and February 1992. On the Appellant’s claim as it now stands, those matters cannot be right since it is now the case, as we have seen, that he claims to have come to the United Kingdom in 1988 or 1989 and therefore his evidence before Mr Smith in this regard on his evidence as it now is clearly false.
42. Mr Dearden went on to consider the Appellant’s evidence before him. He concluded that the Appellant had lied to him. He found it lacking in credibility that the Appellant having originally and for a long time said that he entered the United Kingdom in August 1993 now said that that statement was wrong and the reason for this was that a fellow asylum seeker said that if he gave the true date as being 1988 or 1989 he feared that he would be deported straight away. Mr Dearden found it inherently lacking in credibility that he would be immediately deported because he had been in the country for four years but would not if he had been only in the country for a week. The Tribunal considers that that is a perfectly sound finding. The suggestion by Mr Gill that the Appellant might not have applied for asylum until 1993 because up until that time the only challenge to the Secretary of State’s decision would have been by way of judicial review whereas thereafter he would have been able to challenge that decision by way of an appeal to an Adjudicator strikes us as being pure supposition and there is no evidence to substantiate that contention. We also see force in Mr Dearden’s conclusion that although the Appellant is uneducated, the reason given for not claiming asylum in 1988 or 1989 because an agent advised him that it would harm his case if he claimed asylum straight away clearly lacked sense.
43. As regards paragraph 41(2) of Mr Dearden’s determination, he noted the maintenance of the Appellant’s deception up to and including the time when he appeared before Mr Smith in 1997. Possibly Mr Dearden went too far when indulging in the speculation at the end of sub-paragraph 2 that the Appellant had altered the date when he arrived in order to take advantage of the fourteen year concession, though one can understand why he might have felt tempted to express that view, but it is hardly a matter that materially flaws his determination.
44. He was clearly entitled to note the lack of evidence concerning the Appellant’s ability to support the claim that he came to the United Kingdom in 1988 or 1989. The lack of documentation or any supporting evidence other than the statement of Mr Madigan was clearly a matter that the Adjudicator was entitled to take into account. These are in any event matters that relate to the Adjudicator’s views concerning the Appellant’s ability to satisfy the requirements of the fourteen years continuous residence point. It is clearly separate in his determination from his consideration of the human rights issues which he thereafter went on to consider. We do not consider that his findings on the human rights issues are in any sense affected by his findings on the credibility of the claim in connection with the fourteen years continuous residence application. In any event we consider that taken as a whole his findings in that regard are sound but it is not anyway in any sense determinative of the Article 3 point.
45. Mr Dearden went on to consider the human rights issues in particular from the Amnesty International Report and a Country Report of April 2003 and concluded that the Appellant was not at risk. He based this on the Appellant’s case that his brother had been killed in 1989 or 1991 and that he himself had been arrested on three occasions and was at risk on account of his brother’s involvement with the group. We do not consider that it can properly be argued that in effect Mr Dearden had to operate on the basis that Mr Smith had believed the Appellant’s mother’s contention that the Appellant was a member of the KCF. As we have noted above, he found him to lack credibility and cannot properly be taken to have believed the mother’s evidence on this point. As Ms Sigley pointed out, the Appellant’s case is weakened by the fact that he continues to insist that he came to the United Kingdom prior to the time when he has claimed to have been arrested on three occasions in India which on his own account of events diminishes any interest the authorities would have in him. It is his own case that he has maintained throughout that he has never been a member of or involved except in a very peripheral way with the KCF, and Mr Dearden was entitled, as indeed we consider we are, to take his case as being put on that basis. There is also some marginal relevance to the point concerning the passport application but that is not a determinative factor in our view.
46. Both representatives referred us to the India Country Report of April 2004. It seems from a Canadian report of 1997 that people who are not high profile militant suspects are not at risk in Punjab and it was also said by one panel member that Sikhs with some slight perceived connection to the militancy – through a family member for example – would not now be targets of the Punjab police. Earlier in that report at paragraph 6.114 we see from the Amnesty International Report January 2003 that the majority of the armed opposition groups are currently inactive in Punjab and Amnesty International have received no reports of acts of torture perpetrated [sic] by their members after the end of the militancy period of the mid-1990s. We note also the point at paragraph 6.112 that no more extrajudicial executions take place in Punjab not because of a change of attitude in the police but because there is no terrorism left in the Punjab. Mr Gill commented that this was because all the terrorists had been extrajudicially killed. We note some support for that in paragraph 6.116 where it is said that the hardcore militants have either been physically wiped out or are no longer in India. It is said that there is no obvious support for the militants.
47. Mr Gill accepted that the climate has changed, but argued that for example at paragraph 6.90 it is said that in September 2003 Pakistan handed over 16 Sikh prisoners to the Indian officials as a goodwill gesture and the context of this was not explained. He also referred us to paragraph 6.95 of the same report with reference to torture and custodial violence continuing to be regularly reported in Punjab despite the end of the militancy period, and the point at paragraph 6.109 concerning a lack of any action taken against 100 police officials under investigation for abuses committed whilst suppressing the violent insurgency in Punjab. We also bear in mind the point to which Ms Sigley drew our attention concerning internal relocation for Sikhs who are said at paragraph 6.136 to be able to relocate elsewhere in India and as Sikhs are a mobile community there are Sikh communities all over India.
48. The Appellant’s claim has to be seen in the context of this evidence. On his own claim which there is no reason to disbelieve he has never been a member of the KCF. The only possible risk he would face on that account is by association with his brother who was killed a number of years ago at a time when militancy was a significant problem in Punjab and it is clear from the evidence that it no longer is. In the current climate we see no real risk to the Appellant on return to Punjab. In the light of his history as properly found we consider that if he felt any concern about returning to Punjab then it is clear from the Country Report that he could relocate elsewhere. He is not a KCF member and there is no reason to suppose that he would be of interest to anybody anywhere in India whether in Punjab or elsewhere.
49. This appeal is dismissed.
D K ALLEN
VICE PRESIDENT