KU (Pakistan) v Secretary of State for the Home Department

An appellate tribunal may set aside a first-instance asylum determination only for a material error of law. The possibility that another judge could rationally reach a different factual conclusion is insufficient.

The significance of lies and inconsistencies is primarily for the judge who heard the evidence. A practical standard applies when assessing sufficiency of state protection: protection need not eliminate every risk or provide a guarantee, but must be effective in practice. Internal relocation requires assessment of real risk and reasonableness. A claimant should not be assumed to conceal ethnic origins indefinitely.

The appellant, a Pakistani national from South Waziristan, claimed asylum after receiving threats to his life from the Taliban. The Immigration Judge accepted the core account, found a real risk of persecution in South Waziristan and concluded that effective protection and safe internal relocation were unavailable.

The Senior Immigration Judge allowed the Secretary of State’s appeal, finding material errors concerning credibility, sufficiency of protection and internal relocation. She set aside the Immigration Judge’s determination, remade the decision and dismissed the appellant’s appeal. The appellant appealed to the Court of Appeal, challenging each alleged error of law and, alternatively, the credibility assessment.

1. Appeal allowed. Sullivan LJ, with Mummery and Etherton LJJ agreeing, set aside the Senior Immigration Judge’s order and restored the Immigration Judge’s order allowing the appellant’s asylum appeal.
2. An appellate tribunal cannot replace a first-instance factual determination merely because it disagrees with the factual conclusions. It must identify a material error of law. The fact that another Immigration Judge could rationally have reached a different conclusion did not establish perversity.
3. On credibility, the Immigration Judge had identified and considered the difficulties, inconsistencies and embellishments in the appellant’s account before accepting its core. The approach was consistent with MA (Somalia) v SSHD [2010] UKSC 49, which required care against dismissing an appeal merely because an appellant had lied and recognised that the significance of lies varied from case to case. The reasoning was adequate when read sensibly rather than pedantically.
4. For sufficiency of protection, the practical standard described in Horvath v SSHD [2005] UKHL 38 applied. The issue was not whether every risk was eliminated or protection guaranteed, but whether effective protection was available in practice, having regard to the state’s efforts and whether they had borne fruit. The Immigration Judge had considered evidence of the Pakistani authorities’ efforts and was entitled to conclude that they had not provided effective protection to a person threatened with death by the Taliban. Her reference to what no police officer would do concerned the efficacy of the police force, not the conduct of an individual officer.
5. On internal relocation, the Immigration Judge expressly applied the real-risk test. Her consideration of possible means by which the Taliban might discover the appellant did not turn the assessment into speculation. The evidence supported the conclusion that his South Waziristan origins could be discovered, and it would have been wrong to assume that he could or should conceal those origins indefinitely. A tribunal must give reasons for its decision, but need not give reasons for its reasons.
6. Ground 4 did not arise because grounds 1 to 3 succeeded.

• Court of Appeal (Civil Division): Appeal allowed. The Senior Immigration Judge’s order dated 9 November 2010 was set aside and the Immigration Judge’s order dated 14 October 2010 was restored: [2012] EWCA Civ 107.
• Upper Tribunal Immigration and Asylum Chamber: Senior Immigration Judge Eshun found material errors of law concerning credibility, sufficiency of protection and internal relocation, set aside the Immigration Judge’s determination, remade the decision and dismissed the appellant’s appeal.
• Immigration Judge: Immigration Judge Henderson allowed the appellant’s appeal against refusal of asylum, accepting that he faced a real risk from the Taliban and could not safely or reasonably relocate within Pakistan.