Case No: C5/2010/2096
Neutral Citation Number: [2011] EWCA Civ 872
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: AA/09638/2010]
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 22 June 2011

Before:

LORD JUSTICE THORPE
LORD JUSTICE LONGMORE
and
LORD JUSTICE ETHERTON
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Between:

	AM (PAKISTAN)	
Appellant	
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SECRETARY OF STATE 
FOR THE HOME DEPARTMENT 

Respondent	

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(DAR Transcript of 
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Mr M Gill QC and Mr N Zia (instructed by Messrs Sultan Lloyd) appeared on behalf of the Appellant.

Mr V Sachdeva (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment

Lord Justice Longmore:

1.	The appellant, whom I will call AM, was born on 17 January 1976 into a village family in Lahore.  Between 2004 and 2007 she went to the Punjabi Law School in Lahore and obtained an LLB degree with a certificate dated April 2008.  Thereafter she lived with her sister and brother-in-law and became enrolled at the Punjabi Bar on 13 August 2008.  She claims that she then became involved with a man about whom she knows no more than his name is Amir.  There came into existence a pornographic video in which it is said she can be recognised in a series of explicit poses with an unidentifiable man whom she claims is Amir who, she also claims, promised to marry her but left her, never to return.  The video, however, became common currency, not only in Lahore, where AM practised her law, but also in her home village, which is said to be under the influence of the Pakistani Taliban.  AM says that her brother-in-law threw her out of her sister’s house in Lahore so that she had to move to a hostel.  She also says that a First Information Report (“FIR Report”) has been filed by a respected Pakistani Headmaster, a copy of which was produced to the tribunals below, which appears to show that she has been, or is liable to be, charged with an offence under Sections 292 and 294 of the Pakistani Penal Code.  She claims that both her brother-in-law and her two brothers have threatened to kill her for shaming the family honour.  As a result she says she had to leave her hostel and go into hiding.  

2.	She decided to come to the United Kingdom as a student and, having paid the relevant student fee, she enrolled on a college course in Birmingham.  She had on 25 February 2010 obtained a Pakistani passport, valid for five years, and with the passport she came to the United Kingdom and entered as a student on 12 June 2010.  She claimed asylum on 22 June 2010, on the basis that she had a well-founded fear of persecution if she were returned to Pakistan.  

3.	She underwent a screening interview shortly after she claimed asylum and on 30 June, also, an asylum interview.  Based on her answers in those interviews the secretary of state decided that AM was subject to Section 8 of the Asylum and Immigration (Treatment and Claimants etc) Act 2004 as having failed to make an asylum claim before being notified of the relevant immigration decision made when she was granted leave to enter the United Kingdom as a student on 12 June, with the result that her credibility was damaged.  The Secretary of State did not accept that AM had had a relationship with Amir or that any pornographic video of sexual activity with him had been made or circulated in Pakistan.  As a result she rejected AM’s asylum claim.  The Secretary of State also considered whether AM qualified for protection under Paragraph 339C of the Immigration Rules but decided that she did not so qualify.  

4.	AM then appealed and that appeal came before IJ Elek; she rejected the asylum appeal but allowed the appeal on humanitarian grounds, under paragraph 339C.  The asylum appeal failed because (paragraph 26 of that decision) there was no risk of AM being persecuted by being subject to Sharia law, Pakistan having enacted the Women’s Protection Act on 1 December 2006, which moved cases of rape and adultery to the secular, rather than the Sharia courts, and having provided for complaints of consensual sex outside marriage to be investigated by a court before formal charges were laid.  

5.	The humanitarian appeal succeeded, however, because (paragraphs 28 and 29 of her decision) there was a real risk of death or other serious harm from family members, against which the state would not be able to protect her.  The video was present at the hearing before IJ Elek, but the machinery of the tribunal did not permit the video to be immediately viewed.  Neither party asked the judge to adjourn in order that it be viewed; in particular Mrs Phillips, the Secretary of State’s presenting officer, did not require that the video be viewed.  One might think it would follow from that that the presenting officer was accepting that AM did appear in the video, but whether that is so, or not, the representative obviously took the risk that there might be a finding to that effect.  IJ Elek made various important finding of facts, including: (1) that AM is and was and is a qualified and practising lawyer from Lahore; (2) that the sexually explicit video did contain pictures of AM; (3) young and married professional Pakistani women do have sex with young men discreetly; (4) AM’s sister had told AM that her brothers’ were looking for her and if she returned they would kill her; (5) that AM’s sister’s husband was also prepared to kill her; (6) an FIR report and a newspaper report had singled out AM as a sexually irresponsible woman; and (7) honour killings were not infrequent in Pakistan.  

6.	The Secretary of State was granted permission to appeal to the Upper Tribunal by SIJ Waumsley on 16 July 2010, on the basis that paragraph 26 of the determination to the effect that AM would be able to avail herself with the protection afforded by the Women’s Protection Act, did not sit easily with the decision, said to be in paragraph 29 of the determination, that AM had shown substantial grounds that she would face a real risk of harm on return and that she was unable or unwilling to avail herself of state protection.  It was paragraph 28 of the determination that decided AM would be at risk of serious harm from her brothers and brother-in-law.  Paragraph 29 then said: 

“Given the considerations outlined above [viz paragraph 28], I find that the appellant has shown substantial grounds for believing that she would face a real risk of serious harm in her country of origin and that she is unable or, owing to such risk, unwilling to avail herself of the protection of her country of origin.  I have borne in mind the objective background material as set out above [that is a reference to paragraph 23.54 of the relevant report, stating that in December 2008 472 women were killed in so called honour killings] and I come to the conclusion that the appellant’s removal would cause the UK to be in breach of its obligations under paragraph 339C of the Immigration Rules and under the ECHR.”

SIJ Waumsley added that all issues raised in the Secretary of State’s notice of appeal could be argued.  

7.	The matter then came before SIJ McKee; we were shown this morning the results of a preliminary hearing before that judge, in which he recorded on 21 July as follows: 
“The appeal to the Upper Tribunal is to be heard at 11.30 on Friday [that being 23 July].  If a (material) error of law is found the Tribunal will have to re-make the decision, and it is very likely that an error will be established.  The first-instance judge has, for example, dismissed the appeal on asylum grounds because the appellant can access state protection, but allowed it on humanitarian protection grounds because she cannot access state protection. 

It seems to me more fundamental has gone wrong here.  In her witness statement of 13 July the appellant says that: 

‘The video is the prime evidence of my basis of claim and fear of persecution and therefore a decision on my asylum claim could be justly determined without the video.  The video is annexed herewith on a CD and I wish to rely upon the same.’

Mr Javed, that is the appellant’s representative, brought the video with him to the hearing but the facilities for showing it were not immediately available and Mrs Phillips, that is the Home Office presenting officer, did not consider it necessary for the court to view the video.  The judge agreed and proceeded with the case on the basis of two stills which were said to be taken from the video.  That, it seems to me, was wrong in principle; it is generally an error of law for a judge not to take account of relevant evidence.  In the instant case the video is the centrepiece of the appellant’s claim, but there is doubt as to its contents.  At paragraph 11 of IJ Elek’s determination, the appellant seems to be saying that her face is not visible but she recognised herself by her clothes, whereas Amir’s face can be seen on the video.  That the appellant cannot be recognised by her face is borne out by her anxiety (paragraph 12) to remove a mole from her back which could be used to identify her.  At paragraph 15, on the other hand, the appellant says that Amir’s face cannot be seen on the video whereas hers is clearly visible.  These uncertainties must, it seems to me, be resolved by having the video shown to me and to both representatives who will be able to make submissions on its content.  I can leave the rest of the directions there.”  

8.	The matter proceeded and as a result of seeing the video SIJ McKee came to the conclusion that the video camera was not, as had originally been suggested by AM, a hidden video camera, but a video camera that moved around while taking the film and a camera to which AM made facial gestures while the video was going on.  So it appeared on appeal that what AM had originally said was a clandestine video was not a clandestine video at all.  SIJ McKee concluded that that affected her credibility.  He further decided that IJ Elek had committed the error law which SIJ Waumsley had identified as being arguable.  Since all issues were arguable, he also decided that there was no real risk that AM would suffer death or serious harm at the hands of her brother-in-law and brothers and he accordingly dismissed AM’s appeal.

9.	There is now an appeal by AM to this court and Mr Manjit Gill this morning has submitted that there was no error of law in the original determination of IJ Elek and therefore the second determination before the Upper Tribunal should not have occurred and the decision of the immigration judge should stand.  In relation to the two suggested errors of law, Mr Gill submitted that there was no inconsistency between paragraph 26, on the one hand, and paragraphs 28 to 29, on the other hand of the determination, because IJ Elek was dealing with two quite different matters.  In the first, in paragraph 26, she was dealing with the protection available from the Sharia courts by the enactment of the Women’s Protection Act, whereas in paragraphs 28 to 29 she was dealing with the risk of death or other serious harm from her brothers and her brother-in-law, and perhaps also more generally from the Pakistani Taliban.  He submitted also that it was no business of the Upper Tribunal to declare that there had been an error of law on the part of IJ Elek in not seeing the video when neither party had asked her for an adjournment to see the video and all the more so since there was nothing in the Secretary of State’s grounds of appeal saying that the video should have been shown.  There was, therefore, no error of law in the decision of IJ Elek. 

10.	Mr Vikram Sachdeva has appeared for the Secretary of State and he has submitted that there were indeed the two errors of law to which I have referred.  He submits that the inconsistency between paragraphs 26 on the one hand and paragraphs 28 to 29 on the other, is apparent once one appreciates that the claimed inability of the Pakistani authorities to protect the appellant apparently existed for the purposes of paragraph 26, but then did not exist for the purposes of paragraphs 28 to 29.  I can only say that I am wholly unpersuaded by that argument, it may possibly follow from what Mr Sachdeva has submitted that IJ Elek did not fully consider the position under the Refugee Convention but I can see no possible error of law in her conclusion pursuant to paragraphs 339C of the immigrations rules that the appellant cannot be protected from the risk of death or other serious harm from her male family members who have been identified.  Indeed it is rather shocking that there should be a finding of serious risk of harm to the appellant from her brothers and brother-in-law and yet to find it being argued that it is perfectly satisfactory for AM to be sent back to Pakistan.  The mere fact that there might be an error of law in relation to the assessment of the asylum claim, does not mean to say that there is any error of law on the facts found in relation to the claim for humanitarian protection.  

11.	The second point that Mr Sachdeva indicated as being an error of law was the error of law indicated by SIJ McKee, namely that IJ Elek did not consider the most material part of the evidence, namely the video.  That seems to me to be an impossible argument.  If, in the face of a First Tier Tribunal, neither party asks the court to see the video, although it may be an important part of evidence as a whole, it cannot possibly be said to be an error of law, on the part of the immigration judge to proceed on that basis.  It may be said that either party takes the risk of an adverse finding.  The Secretary of State’s position was, as I have recorded, that the video did not depict AM at all.  Obviously the immigration judge might have proceeded on that basis; equally, the immigration judge might have decided, as in fact she did decide, that the video did depict AM.  In the absence of any request for the video to be shown, in order that the issue could be determined, it seems to me that there cannot be any error of law in a conclusion that AM was depicted on the video.

12.	Faced with this difficulty Mr Sachdeva produced a more sophisticated argument along these lines: he submitted that throughout AM had misrepresented that the video was a clandestine video.  He submits that the Secretary of State was induced by that misrepresentation not to insist on the video being shown before IJ Elek, and he submits that that misrepresentation has vitiated the entire proceedings, so that in some way the determination of the Upper Tribunal should now stand.  Again I find that an impossible submission to accept.  That submission savours of a completely new case, the new case which was in fact able to be mounted before the Upper Tribunal, in the light of the fact that the video was shown.  No doubt the Secretary of State now regrets the fact that neither she, not her representatives at any time saw the video before the matter came before SIJ McKee.  The fact is that there was no basis for a determination by the Upper Tribunal unless there was an error of law on the part of IJ Judge Elek.  There was no such error of law and the fact that further material has emerged as a result of an appeal which should never have occurred, is not something that can properly be taken into account either by the Secretary of State or by this court.  I would therefore allow this appeal and restore the determination of IJ Elek.

Lord Justice Thorpe:

13.	I agree.

Lord Justice Etherton:
14.	I also agree.

Order:  Appeal allowed