Arshad v Secretary of State for the Home Department

In an asylum appeal involving an internal flight alternative, a tribunal must distinguish between whether the claimant would face persecution in the proposed area and whether relocation there would be unduly harsh. The latter question assumes that the area is free from persecution. The tribunal must address material evidence concerning safety, personal circumstances and risks arising from the claimant’s particular religious status. Failure to do so makes its reasoning defective. Where the first-instance adjudicator’s reasoning is confused, the appellate tribunal may consider the issue afresh, but must conduct a legally adequate assessment. If errors also affect the logically prior question whether persecution is feared for a Convention reason, the whole case may be remitted for reconsideration.

The appellant, a Pakistani national and Ahmadi convert, claimed asylum on the basis of religious persecution. The Special Adjudicator accepted his evidence, found that he had suffered persecution and had a well-founded fear of future persecution, and allowed his appeal against the refusal of asylum.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It rejected the finding of persecution and, alternatively, held that Karachi provided a safe and reasonable internal flight alternative. The Secretary of State accepted that the Tribunal had wrongly found that the appellant had received protection from the High Court in Pakistan. The central issues before the Court of Appeal were whether the Tribunal’s treatment of persecution and internal flight was legally sustainable, and whether the case should be remitted for rehearing.

1. Disposition. The appeal was unanimously allowed. Laws LJ gave the first judgment, with Jonathan Parker LJ and Waller LJ agreeing. The Immigration Appeal Tribunal’s decision was set aside and the whole case was remitted to it for rehearing, with costs.
2. The Special Adjudicator had confused two distinct questions concerning internal flight: whether the appellant would be persecuted in the proposed area, and whether, assuming that area was free from persecution, it would be unduly harsh to require him to live there.
3. The Immigration Appeal Tribunal was entitled to address the internal flight issue because the first-instance reasoning was legally confused. Its own reasoning was nevertheless defective. It treated the appellant’s return to Karachi as having been motivated only by concern for his elderly and ill parents. It failed to address evidence that Karachi had become increasingly dangerous, that the appellant had later been pursued or harassed by the FIA, and that his status as an apostate Ahmadi might expose him to heightened risk or require strict silence about his faith.
4. The appellant was entitled to know what the Tribunal made of those material matters. The defects therefore required reconsideration of the internal flight issue. The Tribunal’s erroneous finding that the appellant had received High Court protection also undermined its findings on the logically prior question whether he feared persecution for a Convention reason. That issue likewise had to be reconsidered.
5. Additional observation. The judges found no bias or bad faith, but stated that the Tribunal should ensure that its decisions appeared as rigorously even-handed when reviewing an asylum seeker’s appeal as when reviewing a Home Office appeal.

• Court of Appeal (Civil Division): allowed the appeal, set aside the Immigration Appeal Tribunal’s decision and remitted the whole case for rehearing.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the Special Adjudicator’s determination.
• Special Adjudicator: allowed the appellant’s appeal against the refusal of asylum.