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Cite as: [2004] EWCA Civ 922

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Neutral Citation Number: [2004] EWCA Civ 922


Royal Courts of Justice
London, WC2
15 June 2004

B e f o r e :

(Vice President of the Court of Appeal, Civil Division)




(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court)


MS M PHELAN (instructed by Thompson & Co) appeared on behalf of the Appellant
MS J ANDERSON (instructed by the Treasury Solicitor) appeared on behalf of the Respondent



Crown Copyright ©

  1. LADY JUSTICE ARDEN: This is an application by Mr Mohammed Nawaz Awan for permission to appeal from the order of Forbes J dated 25th April 2002. By his order the judge refused the appellant's application to bring judicial review proceedings to set aside the decision of the Immigration Appeal Tribunal dated 7th August 2001.
  2. This application is brought pursuant to the directions of Sedley LJ on 12th February 2004 that this application should be adjourned into open court on notice to the respondent with appeal to follow if permission to appeal is given. An extension of time is also sought as the notice of appeal should have been issued in early May 2002 but was not issued until 31st May 2002.
  3. So far as the background facts of this matter are concerned, I can summarise those as follows. Mr Awan was born in 1970 in Pakistan. He is a member of a leading Ahmadi family, that is he is a member of a minority Muslim sect in Pakistan. From 1996 he held posts in his local Ahmadi community in Daska, Pakistan. In February 1998 he began preaching to one Mullah Makhdoom, and either in December 1998 or early 1999 there was a dispute between the appellant and Mullah Makhdoom about attending each other's mosques, and Mullah Makhdoom lodged a religious complaint against the appellant.
  4. In January 1999 the appellant was arrested and detained for six hours for preaching to Mullah Makhdoom. The police agreed not to prosecute on payment of 30,000 rupees. On 10th January 1999 Mullah Makhdoom approached the Deputy Superintendent of Police, who gave instructions for the re-arrest of the appellant. However, there was a further bribe of 20,000 rupees and in consequence the appellant was able to leave Daska and go to Gujrunwalla which was some 40 kilometres away from Daska, but in January 1999 Mullah Makhdoom instituted proceedings in a court in Daska and the appellant was refused bail.
  5. In June 1999 he returned to Daska to see his newborn son. He was observed by Mullah Makhdoom and he thereupon returned to Gujrunwalla and the police later raided his house. Between June and December 1999 the appellant moved between Lahore and Jang, but in January 2000 he returned to Daska to visit his son. Again the police raided the house, although the adjudicator did not accept this. The appellant escaped and he went to Karachi.
  6. Later in January 2000 a further case was registered against the appellant and this was reported in the press. There was at this stage a First Information Report, which was in fact the second First Information Report lodged against the appellant.
  7. In October 2000 there was a serious incident in a mosque in Ghatialian where six Ahmadis were killed. In November 2000 there was a yet further incident of the same tragic nature when seven Ahmadis were killed at a mosque in Takhat Hazara. In December 2000 the appellant was declared a wanted man by the police, and in December 2000 or January 2001 there were death threats sent to prominent Ahmadis, of which one was sent to the appellant at his brother-in-law's address in Daska. Subsequently, the appellant decided to leave the country. He contacted an agent and on 10th March 2001 he arrived in this country and claimed asylum.
  8. So far as the procedural matters thereafter are concerned, I can summarise them as follows. On 17th March 2001 the appellant was refused asylum. On 5th June 2001 his asylum and human rights appeal was heard by a special adjudicator, and it was dismissed on 10th July 2001. Thereupon the appellant appealed to the Immigration Appeal Tribunal, which on 7th August 2001 refused leave to appeal.
  9. On 6th November 2001, an application for permission to bring judicial review proceedings of the decision of the Immigration Appeal Tribunal was lodged. This application was refused by Sullivan J on paper on 25th January 2002. There was then a renewed application for permission brought by the appellant. This was adjourned by Silber J for the adjudicator's record of proceedings to be produced. The application was ultimately heard on 25th April 2002 and, as I have already stated, Forbes J dismissed it. Forbes J effectively agreed with the Immigration Appeal Tribunal and with the adjudicator.
  10. As I have mentioned, this matter came before Sedley LJ on 12th February 2004. I should explain that there has been a very considerable period of time taken in the course of these proceedings, but in part the delay was due to the fact that the decision in Ullah was given by this court, and there is indeed a pending appeal from that decision to the House of Lords.
  11. Ms Margaret Phelan appears for Mr Awan on this appeal and she effectively relies on the formulation of the grounds of appeal in the judgment of Sedley LJ on 12th February 2004, and so I will summarise the issues as Sedley LJ identified them and in so doing I will summarise what he said.
  12. He identified effectively five grounds. First, the adjudicator's finding in paragraph 5.16 that there had been a single precipitating factor for the appellant leaving Pakistan was (in my words) against the weight of the evidence. Second, the Immigration Appeal Tribunal had possibly misread the adjudicator's finding about the First Information Reports whereas the adjudicator had left open the question whether they were not authentic. On the other hand, the IAT had said that the adjudicator had rejected those documents. Third, the adjudicator said that the blasphemy offences with which the appellant was charged had not been prosecuted, but the adjudicator overlooked the fact that the appellant was charged under section 298 of the Penal Code, which is to a different effect which I will explain later.
  13. The fourth potential ground was that the internal flight option, on which the adjudicator also relied, was not truly an option because the appellant could be arrested at the airport before he was able to relocate himself within Pakistan. And fifthly, the restriction on the right to manifest his religion was, in the words of Sedley LJ, a gateway to religious persecution under the Refugee Convention.
  14. My next task is to summarise the decision of the adjudicator. The adjudicator gave a decision in which the evidence and submissions were separately summarised, and then the adjudicator gave his decision. So far as the evidence is concerned, I would particularly refer to paragraphs 1.5, 1.8, 1.9 and 1.10 of the decision of the adjudicator:
  15. "1.5 A further approach to a judge resulted in a First Information Report being filed against the Appellant and the police raided his house, but he was in hiding. The FIR was filed at the police station on 15th January 1999.
    1.8 He said that another FIR was filed against him on 18th January 2000 because he had been preaching and had been seen by the same man, Qazi Ahmad.
    1.9 He had finally left Pakistan on 6th March 2001 because a number of Ahmadis had been killed by gunfire in a mosque in a neighbouring town. Because, the Appellant said, he had been declared as wanted, a poster had been placed outside a police station saying that he could be shot dead on sight. This meant that anyone who saw him could shoot him and nobody would be questioned about it. The police had told his mother that he was to be declared 'a wanted man'.
    1.10 He also said that his name has appeared in national newspapers and a letter had been sent to Ahmadi community indicating that he was among a number of people who would be killed."
  16. The adjudicator gave his decision in section 5 of the decision, and he dealt first with internal flight at paragraph 5.11. In effect the adjudicator decided that internal flight was an option:
  17. "Turning to the Appellant's personal circumstances, I noted that he accepted that when he was in Karachi and Gujrunwalla he did not encounter any particular difficulties. He found himself able not to follow the requirement that Ahmadi should preach about their religion when he was in Karachi and claimed that this was due to advice he received from the leader of the sect. This being so, I am satisfied that he could return to Karachi or other parts of Pakistan where he would not be at risk of harassment or persecution if he followed the advice of his leader not to preach about his religion."
  18. In the following paragraphs, which are numbered 5.12, 5.13, 5.14, 5.15, 5.16, and then in error 6.17, although I will refer to it as 5.17, the adjudicator dealt with three topics: first, in paragraphs 5.12 and 5.13, with the First Information Reports, second, in 5.14 and 5.15, with the police interest in Mr Awan, and then in 5.16 and 5.17 with the internal flight option. The adjudicator said:
  19. "5.12 Turning to the documents which have been produced I noted that the Respondent challenged the authenticity of these but was unable to produce any evidence to show that they were forged or otherwise false. I did however note that the translations were not certified and it was virtually impossible to relate the translations to the actual documents in Punjabi. I have no information about the newspapers in which it was claimed that the articles were published or where they were circulated.
    "5.13 Looking at this evidence as whole, I concluded that Respondent had not provided any evidence to substantiate his doubts about the genuineness of the document and the fact that forged documents were readily available in certain countries was not in my view enough to negate their evidential value. However, even accepting that the documents were genuine, it simply established that reports had been made to the police regarding the activities of the Appellant in Daska.
    "5.14 I had to balance against that the fact he was twice able to avoid arrest and detention by the payment of bribes which indicated that the authorities were not keen to pursue the allegations against the Appellant which in itself was consistent with the background information that allegations of blasphemy against Ahmadis were not pursued by the authorities. Turning to the question of credibility, I found the Appellant's story of his escape from his house to be wholly unbelievable.
    "5.15 He described large numbers of police arriving whether initially or by way of reinforcements and yet he was able to escape over the roofs of neighbouring houses without even being pursued by the police. He went to his sister's house a short distance away but no attempt was made to trace him there. I concluded that this story was at best a gross exaggeration of the truth and can not confirm in my mind any serious attempt by the authorities to arrest or detain the Appellant.
    "5.16 As mentioned above, he was able to live elsewhere in Pakistan without difficulty and he remained there for over a year before he decided to come to this country. He said that the only reason that prompted him to come when he did was the killing of a number of members of the Ahmadi sect in a town near his home. Even accepting that such an incident occurred, it in no way was directed against the Appellant and I was not satisfied that the authorities were pursuing any action directed at him or likely to lead to his arrest, detention or prosecution.
    "6.17[sic] In conclusion, although I accepted that the Appellant was a follower of the Ahmadi teaching, I was satisfied that as long as he continued to practise privately and follow the advice of his leader not to preach as long as there were allegations outstanding against him, there was no reason to suppose that he would attract the attention of either the authorities or the Muslim population in Pakistan. Even if he genuinely feared for his safety in his own area because of the actions of one individual, I did not consider that it would be unreasonable or unduly harsh to expect him to relocate elsewhere within the country as he had done prior to his departure for the United Kingdom."
  20. On those grounds the adjudicator dismissed the appeal. He also dismissed the claim under the Human Rights Act 1998, but this court is not concerned with the latter claim. The matter then went to the Immigration Appeal Tribunal and for that purpose a notice of appeal was given, containing about five pages of grounds. The matter came before the President on 25th July 2001 and his decision is contained in four short paragraphs.
  21. "1. The applicant is a citizen of Pakistan. His asylum and human rights claims have been rejected and his appeal dismissed by an adjudicator (Mr AJ Olson) on 10th July 2001. He now seeks leave to appeal.
    "2. The apology for the length of the grounds is well made. The adjudicator for good reason did not believe the applicant's account of the police interest in and attempts to arrest him because he was an Ahmadi. He had lived for a year after the attempts to arrest him with no real difficulty and the FIRs were clearly suspect.
    "3. Freedom of religion is not violated if the sect leader advises that there is no need to preach or to try to convert others. In such circumstances, Kokkinakis v Greece is inapplicable. Further, it is manifestly wrong to suggest, as the grounds do, that the Ahmadis are at risk and that internal flight must always be rejected because unduly harsh.
    "4. The adjudicator's determination is adequately reasoned and discloses no arguable errors. An appeal has no real prospect of success and leave is refused."
  22. It was this decision against which the appellant sought to bring judicial review proceedings and for which leave was refused, first by Sullivan J on paper, and then by Forbes J at a hearing in open court.
  23. Essentially, the appellant brought judicial review proceedings on the grounds that the Immigration Appeal Tribunal had misdirected itself in finding that the adjudicator has rejected the appellant's account of the police interest in him and its attempts to arrest him because he was an Ahmadi; second, on the ground that the adjudicator had wholly failed to make findings about a death threat to the appellant, and also about the declaration of him as a wanted person or proclaimed man; thirdly, on the ground that the appellant could not be said to be living without difficulty in Karachi, given that he had lived there in hiding for a year; and fourthly, on the basis that the Immigration Appeal Tribunal had said that the FIRs were suspect when this was not the way in which the adjudicator had approached those documents.
  24. There were other grounds too but those are the important grounds which tie in with the grounds as identified in Sedley LJ's judgment and on which Ms Phelan has helpfully arranged her submissions, and it is on the basis of the five matters identified by Sedley LJ that I will deal with this appeal.
  25. The first point is the single precipitating factor, and what Ms Phelan submits is this. The appellant consistently put forward three grounds for leaving Pakistan. The first was the killing at the two mosques which I have already mentioned, and which is mentioned specifically in the adjudicator's decision. Secondly, he left Pakistan because of the declaration of him as a wanted person, and thirdly, he left Pakistan because of the death threats.
  26. These points are made good, for instance, by reference to the notes of the interview with the appellant. At page 77 of the bundle, Mr Awan was asked in interview:
  27. Q. What finally caused you to leave Pakistan on 6th March 2001?
    A. In Ghatialian which is near my town six people were killed in gun firing in the mosque and two months ago seven people were murdered in Tahkat Hazara. They were stoned to death in our mosque. I had been declared a wanted man and they had put a poster outside the police station saying that I could be shot dead on sight.
    Q. Who put up a poster saying this?
    A. When people are not arrested their names are put on a notice board saying that they are wanted.
    Q. Would it have been legal for you to have been shot dead by anyone?
    A. If the police could not find me and anyone could have shot me dead nobody would have questioned them about it.
    Q. What date did the poster go up?
    A. I do not know because there is no-one who could go and ask them?
    Q. What police station was it put up outside of?
    A. City Daska.
  28. Now that sequence of questions and answers does not as such deal with the death threat to which I have already referred. That is referred to separately later in the interview. At page 82 of the bundle the question is put:
  29. Q. Who do you fear will kill you?
    A. The police, the people involved in the case or whoever finds me because my name has been in the national newspaper. Two or three months ago my mother told me that she had received a letter and this letter has also been sent to other members of Ahmadi community and people holding office in the community saying that those persons will be killed.
    Q. Who are those people?
    A. People holding office bearers in our community and I am included in that.
    Q. Who is sending these letters?
    A. I cannot confirm who they are but it seems they are the same people who killed people in Ghatialian.
    Q. Who was it addressed to?
    A. To my brother-in-law and my name was mentioned in the letter inside.
  30. So that is the sum of the evidence dealing with the death threats. We were also taken to the oral evidence given at the hearing before the adjudicator, but I need not refer further to that.
  31. The adjudicator refers to these matters in his decision but not to all of these matters in the part of the decision when he states his findings. For instance, in paragraph 1.9, which I have already read, there is reference to the killing at the mosques and also to the fact that Mr Awan had been declared a wanted man. In paragraph 1.10 there is a reference to the death threat.
  32. In paragraph 3.12 of the decision, where the adjudicator is summarising the evidence given before him, he states that the evidence of Mr Awan was that:
  33. "He left when he did because an incident had occurred in a neighbouring village when many Ahmadis were assassinated. The police had been to his house and told his mother that he was a 'proclaimed offender' and his mother had advised him to leave the country with the help of an agent who arranged his passport."
  34. But in the part of the decision dealing with the reasons for leaving Pakistan, namely paragraph 5.16, the adjudicator stated, as I have already set out, that Mr Awan's evidence was that "the only reason" that prompted him to leave when he did was the killing in the mosques. So there is no reference there in express terms to either the declaration of Mr Awan as a proclaimed, or wanted person, or to the death threats which had been made against him.
  35. So Ms Phelan submits that the adjudicator made no finding on a matter which was central to the case of Mr Awan, and this is one of the matters which she says that the Immigration Appeal Tribunal omitted to consider, and for that reason its decision should be judicially reviewed.
  36. So far as the respondent is concerned, Ms Julie Anderson, who appears for the Secretary of State, made a basic submission that the adjudicator had heard all the evidence and that the court could not go behind the adjudicator's findings of primary fact unless they were plainly wrong. This was a situation where the adjudicator was plainly clearly aware of the totality of Mr Awan's case because all the reasons for leaving Pakistan had been mentioned in the course of the decision.
  37. Ms Anderson warned the court in its supervisory role from taking a different view of the facts from that of the adjudicator. Specifically in relation to the proclamation of Mr Awan as a wanted person and the death threats made against him, Ms Anderson submits that the concluding sentence of paragraph 5.16 covers the proclamation at least of Mr Awan as a wanted man. In that last sentence the adjudicator had said that even if the incident had occurred in the mosque "it in no way was directed against the appellant and I was not satisfied that the authorities were pursuing any action directed at him or likely to lead to his arrest, detention or prosecution".
  38. So far as the death threat is concerned, Ms Anderson accepts that this was probably not a threat by the authorities and therefore could not be within that final sentence. However she submitted that so far as that matter was concerned, the appellant had apparently been safe in Karachi, which was a thousand kilometres away, and that therefore the adjudicator's decision could be seen to be sound because of his reliance on the internal flight option in the following paragraph, 5.17.
  39. I will deal with this point, and indeed the further points identified as grounds of appeal, in the order in which they come. As I see it, the crucial sentence of the decision is the one which I have just quoted from paragraph 5.16. Ms Phelan says it is most unsatisfactory that it is not clear as to what it is dealing with, if it goes further than the incident in the mosques. The answer, it seems to me, to that submission is that it is well established that adjudicators' decisions should not be set aside simply because the adjudicator has not dealt in express terms with every single item of evidence. The court has to look to see what the adjudicator was saying, whether expressly or by implication.
  40. In paragraph 5.16 the important part of the sentence for this part of the argument is the second part and that, I note, sets out the adjudicator's decision that he is not satisfied that the authorities were pursuing "any action" against the appellant. Bearing in mind that the adjudicator had already referred to the proclamation of Mr Awan as a wanted person, it seems to me that by implication the adjudicator was dealing with that matter as well as simply the matter of investigations arising out of the killing in the mosque, and so it seems to me that Ms Anderson's submission that this matter was dealt with in the adjudicator's decision in that paragraph is correct.
  41. So far as the death threat is concerned, it seems to me that the court cannot be satisfied that that matter is dealt with in paragraph 5.16. On the other hand, it appears that this matter related to events in Daska and, although this may be a minor point, the threats occurred some three months before Mr Awan arrived in that country. So it appears that there was certainly a little delay between the making of the threats and Mr Awan's leaving the country, although we do not have the precise date for that.
  42. So it would appear that on the evidence Mr Awan was safe from this threat in Karachi and, in the following paragraph of his decision, the adjudicator deals with the question of internal flight and relocation and he finds that it would not be either unreasonable or unduly harsh to expect Mr Awan to relocate elsewhere within the country as he had done prior to his departure for the United Kingdom. As I see it, he could not have reached that conclusion except by considering that the death threat did not in fact affect Mr Awan in Karachi.
  43. Now this point is important because this court, and indeed the High Court, would not be entitled to set aside an adjudicator's decision on one ground if the adjudicator would have inevitably reached the same result by another route. This is established by Manzeke v Secretary of State for the Home Department [1997] Imm AR 524, and in particular at 531, where on the facts of that case Lord Woolf says:
  44. "I am satisfied that even if the Tribunal had not made the error as to the credibility of the appellant, it would inevitably have reached the same conclusion."
  45. And that process of reasoning was adopted in the more recent case of R v Immigration Appeal Tribunal ex parte Judes [2001] EWCA Civ 825.
  46. I now move to the second ground of appeal which was on the First Information Reports. It will be recalled that in the judgment of the Immigration Appeal Tribunal it was stated that "the FIRs were clearly suspect". Ms Phelan argues that the Immigration Appeal Tribunal must have misunderstood the position. The adjudicator proceeded effectively on the basis that the documents were genuine, but in the event they did not influence his decision. See paragraphs 5.12 and 5.13 set out above. It was therefore, submits Ms Phelan, not open to the Immigration Appeal Tribunal to determine the application for permission to appeal to it on the basis that the FIRs were suspect.
  47. Ms Anderson submits that the grounds on which the appellant relied as grounds for appeal to the Immigration Appeal Tribunal put in issue the adjudicator's approach to the FIRs by saying that the translations of these documents had been certified, which was not in fact correct. The document itself had been certified but not the translation, and further put in issue that the adjudicator should have given greater weight to these documents.
  48. Ms Anderson submits that there are in fact some inconsistencies within the documents which could form a basis for the Immigration Appeal Tribunal's observation, and certainly she submits they were not certified as required by the rules.
  49. She further submits that it is not purely a question of whether the documents were genuine. The adjudicator had to decide, even if they were genuine, what weight to give to them, and the inadequacies of the documents had to be viewed in the context of the adjudicator's findings on the credibility of the appellant.
  50. As I see it, the adjudicator did not make clear findings about the authenticity of the FIRs because it was unnecessary on the facts for the adjudicator so to do. The important point is that the adjudicator considered that the FIRs simply established that reports had been made to the police concerning the activities of the appellant in Daska, and the fact that the Immigration Appeal Tribunal thought that the documents were suspect was therefore, as it were, a further or supplementary point. It did not affect the point which the adjudicator founded his decision upon, and therefore, as it seems to me, that particular ground of appeal cannot afford a basis for judicially reviewing the judgment of the Immigration Appeal Tribunal.
  51. The third point is that the Immigration Appeal Tribunal dealt with the question of blasphemy charges against the appellant but did not take into account that there were more serious charges brought against him under section 298(c) of the Pakistan Penal Code. Now there was evidence that blasphemy charges are brought against Ahmadis but are not proceeded with, and therefore the adjudicator was inclined to give the blasphemy charge little weight.
  52. Ms Phelan has taken us to the Country Report, at page 100 of the bundle, which shows that the authorities used charges under this more serious provision regularly and discriminatorily against Ahmadis. The document, which is a US Department Country Report, states:
  53. "In 1984 the Government inserted Section 298(c) into the Penal Code, prohibiting Ahmadis from calling themselves Muslims and banning them from using Islamic words, phrases and greetings. The constitutionality of Section 298(c) was upheld in a split-decision Supreme Court case in 1996. The punishment for violation of this section is imprisonment for up to 3 years and a fine. The Government and anti-Ahmadi groups have used this provision extensively to harass Ahmadis."
  54. Ms Phelan makes the point that the fact that charges were brought against Mr Awan under this section was not dealt with at all by the adjudicator, and indeed this was part of the grounds of appeal to the Immigration Appeal Tribunal, but it finds no place in the decision of the Immigration Appeal Tribunal itself. On this point it seems to me that the appellant has to deal with the internal flight option because, on the authority that I have already cited, if the adjudicator would have reached the same result by another route it would not be open to the court judicially to review the decision of the Immigration Appeal Tribunal, or for the decision of the adjudicator to be set aside.
  55. So while I bear in mind that the adjudicator does not specifically refer to this more serious offence, the real question which the appellant must overcome is the adjudicator's views on the internal flight option.
  56. It is important that I should say a little about the factual situation here. The appellant was living in hiding in Karachi but it is important to understand the nature of the meaning of "hiding" in this context. Firstly, I should add, as I think I have already mentioned, Karachi is about a thousand kilometres from Daska. Mr Awan says he did not consider Karachi totally safe so he decided to stay in hiding with his relatives, and that he hoped to be able to find an influential person who could help him to set aside the cases that had been brought against him. He says this about being in hiding:
  57. "53. While I was in hiding, I was concerned for my mother's welfare. Though she was staying with my sister, I had the assurance that there was a possibility of seeing her. It was possible for her to be brought to the place where I was in hiding though I could not go to my hometown.
    "54. During this period in hiding, I managed to support myself financially by renting out our family land. My brothers also sent money to my relative in Karachi. My wife also worked as a teacher and supported herself and my child."
  58. It also appears that Mr Awan was able to attend his mosque while he was in Karachi, although he was not able to carry on teaching. He was advised by his religious leader not to teach while the proceedings were outstanding against him, and indeed the evidence was that Mr Awan was under no religious obligation to continue to proselytise while those proceedings were pending.
  59. So far as this matter is concerned, Ms Phelan submits that since the appellant was in hiding in Karachi relocation was not, as the adjudicator thought, a practical option, but the respondent points to the terms of the decision of the adjudicator, and the adjudicator has clearly found as a fact, having considered the evidence, that he did not consider it would be unreasonable or unduly harsh to exact Mr Awan to relocate elsewhere within the country, as he had done prior to his departure for the United Kingdom. That is a clear finding of fact by the adjudicator which it is not possible for this court to go behind.
  60. Ms Phelan's argument was enlarged and this was really the fifth ground of appeal. She submits that, for the reasons I have already given, Mr Awan cannot practise his religion as he would like to do because of the pending proceedings against him, and thus he would suffer persecution if he were to start to proselytise others in accordance with the tenets of his religion, and on that basis he would be persecuted for a Convention reason if he were to be returned to Pakistan.
  61. I should say that properly Ms Phelan has not relied on the European Convention in the light of this court's decision in R (Ullah) v Special Adjudicator [2003] 1 WLR 770. On this aspect this court did not call upon Ms Anderson. As I see it, there would only be persecution of Mr Awan on grounds of his religious beliefs if he were obliged to teach his religion and convert others, which as we know he is not now bound to do. In Ullah this court held that religious persecution was not a reason for not returning an individual under the Convention unless there was a risk of treatment contrary to Article 3 but, as I have explained, Ms Phelan properly does not rely upon the Convention.
  62. However, Ms Phelan does rely on the Refugee Convention, and in particular on a passage from the decision of this court in AE & FE v Secretary of State for the Home Department [2003] Imm AR 609. Ms Phelan submits on this part of the case that it is enough to find persecution for the purposes of the Refugee Convention that the appellant will be discriminated against with respect to the exercise of his right to manifest his religious beliefs, and she in particular relies on paragraph 58 of the judgment of the court.
  63. In this paragraph Lord Phillips MR, who gave the judgment of the court, Lord Phillips MR, Simon Brown, Ward LJJ, referring to the judgment of this court given by Lord Woolf MR in R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929 said this:
  64. "Lord Woolf referred to the principle that these should be enjoyed without discrimination. While discriminatory denial of human rights in the place of relocation can plainly be relevant to the question of whether an asylum seeker can reasonably be expected to move there, we do not consider that Robinson establishes that it will not be reasonable to require relocation unless, in the place of relocation, these human rights are protected."
  65. Now in the Robinson case this court set out when a person claiming under the Refugee Convention will be held to be entitled to the internal flight alternative. Lord Woolf at pages 939-940 said this:
  66. "In determining whether it would not be reasonable to expect the claimant to relocate internally, a decision-maker would have to consider all the circumstances of the case, against the backcloth that the issue is whether the claimant is entitled to the status of refugee. Various tests have been suggested. For example, (a) if as a practical matter (whether for financial, logistical or other good reason) the 'safe' part of the country is not reasonably accessible; (b) if the claimant is required to encounter great physical danger in travelling there or staying there; (c) if he or she is required to undergo undue hardship in travelling there or staying there; (d) if the quality of the internal protection fails to meet basic norms of civil, political and socio-economic human rights. So far as the last of these considerations is concerned, the preamble to the Convention shows that the contracting parties were concerned to uphold the principle that human beings should enjoy fundamental rights or freedoms without discrimination."
  67. In my judgment it is quite clear that with respect to discrimination Lord Woolf was referring to fundamental rights. Moreover, the final sentence of paragraph 58 of the judgment of the court in AE & FE makes it clear that the discriminatory denial of human rights may not be sufficient to found a reason for saying that the internal flight alternative is not available. In this case, in my judgment, it is not sufficient that freedom of religion is discriminatorily denied to Mr Awan for the reasons which have been identified by the Immigration Appeal Tribunal, with which I agree, namely that there is no religious obligation at the present time for Mr Awan to preach, or to convert others, so long as proceedings are against him.
  68. In those circumstances, in my judgment, the internal flight option cannot be considered to be unduly harsh. Indeed, the adjudicator reached the conclusion that it would not be unreasonable or unduly harsh to expect Mr Awan to relocate elsewhere in Pakistan, as he indeed had in fact done prior to his departure. In my judgment this ground of appeal cannot afford a good ground for judicially reviewing the decision of the Immigration Appeal Tribunal.
  69. Accordingly, I have dealt with each of the grounds put forward by Ms Phelan. Despite her cogent and helpful submissions, in my judgment there is no basis for judicially reviewing the decision of the Immigration Appeal Tribunal, and I would accordingly refuse the application for permission to bring an appeal against the judgment of Forbes J whereby he also refused to give permission to bring judicial review proceedings.
  70. That leaves the outstanding matter of the question of the extension of time which has called me some concern. There is evidence on it. I would be inclined not to grant an extension of time but I will say no more on that point for the moment.
  71. LORD JUSTICE BROOKE: I agree with the judgment which Arden LJ has given in relation to the substantive merits of this application, and in this judgment I am concerned only with issues relating to the application for an extension of time for appeal.
  72. This is an asylum case in which the appellant is seeking permission to appeal against an order of the High Court refusing a permission to apply for judicial review of the decision of the Immigration Appeal Tribunal refusing permission to appeal against the decision by an adjudicator.
  73. The decision of Forbes J was made on 25th April 2002. Under CPR 52.15(2) an application for permission to appeal to this court had to be made within seven days of that decision, in other words by 2nd May 2002. The appellant's solicitors made the common mistake of not reading the rule. They thought that there was the usual 14 days for an appeal to this court (see CPR 52.4(2)). They did not, however, file the notice of appeal by 9th May 2002. They attempted to file it on 14th May, when the Civil Appeal Office refused to accept the draft notice of appeal because it contained no application for an extension of time.
  74. Eventually the notice of appeal, including an application for an extension of time, was filed on 31st May 2002. The notice contained a statement of truth by a partner in the appellant's solicitor's firm in which he said this:
  75. "This application is slightly out of time. The person who entered the date on diary put the last date as 14th May 2002. As a matter of fact the last day was 13th May 2002. The application was prepared and sent on 14th May 2002 but it was told that application is out of time.
    "We submit to the honourable court to allow this out of time application which is due to an administrative error at our office and no fault of applicant. We apologise for the delay."
  76. In a later statement Mr Anas Ahmad Khan, the maker of the earlier witness statement, said that a clerk in his firm wrongly calculated that the last date to renew the application was 14th May 2002. The client was advised that he should produce the right funds to pursue an application to the Court of Appeal on or before that day, but he did not attend the office that day and the solicitors proceeded with the application on the assumption that funds would be provided later in the day. The clerk was therefore sent to lodge the papers in the Court of Appeal and the papers were refused, and thereafter the solicitor assumed that the client was not interested in pursuing the application until the client attended his office on 31st May. On that occasion he said he had been unable to arrange funds but would forward them to the solicitor once he had arranged them, and in those circumstances the solicitor decided to pursue the appeal although the funds had not yet been lodged with his firm.
  77. It follows from this analysis that the notice of appeal, including an application for an extension of time, was lodged 29 days out of time, and that the first attempt to lodge it was 12 days out of time. The principles on which an extension of time should be granted were analysed in a judgment in this court in Sayers v Clarke Walker [2002] EWCA Civ 645 [2002] 1 WLR 3095. I can see no reason why different principles should be applied in a public law appeal although the way the principles are applied may differ.
  78. I therefore turn to CPR 3.9 and consider the principles set out there against the facts of the present case. CPR 3.9 provides that:
  79. "On an application for relief from any sanction imposed for a failure to comply with any rule ..."

    (I explained in Sayers v Clarke Walker that the court was facing a similar situation in the context of an application for an extension of time after the proper time had expired.)

    "... the court will consider all the circumstances including (a) the interests of the administration of justice."
  80. In the interests of the administration of justice in the asylum field, the Court should respect Parliament's wish for there to be a firm but fair system of immigration control. The relevant procedural rule, Rule 18(2), allowed 10 days for an application for permission to appeal to the Immigration Appeal Tribunal from a decision of an adjudicator, although that time could be extended under rule 18(3) which provides:
  81. "A time limit set out in paragraph (2) may be extended by the Tribunal where it is satisfied that because of special circumstances, it is just for the time limit to be extended."
  82. Parliament's wish to have a firm system of compliance with time limits has been later evidenced by section 101 of the Nationality, Immigration and Asylum Act 2002, and by the introduction of CPR 54.23(2), which provides that the court may extend the time limit set out in 54.23(1) in "exceptional circumstances". An appellant had the power at the relevant time to apply for judicial review of a decision by the Immigration Appeal Tribunal to refuse permission to appeal. The time for that application is governed by CPR 54 and the notes to the current edition of the White Book under CPR 54.5 set out the principles on which the court may consider an application for an extension of time.
  83. We are concerned, however, with an appeal to the Court of Appeal after two High Court judges have refused permission to apply for judicial review, and the Immigration Appeal Tribunal has itself refused permission to appeal, and I see no reason why the principles which may allow for an extension of time for an original application for judicial review should be carried forward slavishly into the procedural regime operated by this court.
  84. In my judgment if a notice of appeal is not filed within seven days, as provided by the rule, that should normally be the end of the process of challenging a decision by the Immigration Appeal Tribunal in the courts, and the administration of justice requires this. In the recent case of Pharis v Secretary of State for the Home Department [2004] EWCA Civ 654 this court said that the lodging of a notice of appeal in a case of this kind will not act as an automatic stay in the deportation process, and I wish to reiterate the principle affirmed in that case (in which the court observed that there had been a number of recent applications which represented an abuse of the process of the court). I am not suggesting for one moment that the present application falls into that category but the case of Pharis and this decision is illustrative of the way that the court is not inclined to regard the scope of an appeal in these circumstances as simply another appeal in the process, a fourth bite of the cherry, without tough time limits.
  85. So much for the interest of the administration of justice. Under CPR 3.9(1)(b), the question is whether the application for relief has been made promptly. In this case the application for relief can be interpreted as the application for an extension of time which was made on 31st May. It was not made promptly. There was a significant delay before it was made.
  86. CPR 3.9(1)(c), whether the failure to comply was intentional: there is no evidence that the failure to comply was intentional, but it is noticeable that, both for the application for judicial review and the application to this court, the appellant and/or his advisers left it to the last permissible moment to lodge, or to attempt to lodge, a notice in the courts. They were not acting promptly at any stage.
  87. Fourthly, if they had any good reason for the failure to comply. There is no good explanation for the failure. Mr Khan has set out what reason there was. It is not a good reason, although I have seen worse.
  88. Fifthly, the extent to which the party in default complied with other rules. Ms Anderson submitted that the time for applying for judicial review ran from the decision of the Immigration Appeal Tribunal, even if there was a delay before it was promulgated. We did not hear very full argument on this matter. It is certainly the case that time runs from the time when the grounds to make the claim first arose (CPR 54.5(1)). Again, without having heard argument, in the decision of this court in E, the court made it clear that the tribunal was still seised of its decision until such time as its decision was promulgated, and I would take some persuading that in those circumstances the grounds to make the claim arose at a time before the decision was promulgated to the appellant. However that may be, an extension of time would be likely to be granted in most such cases.
  89. Sixthly, the failure to comply with the rule was the fault of both the legal representative, who made a mistake in not reading the rule and in then getting his sums wrong, and the appellant himself who did not attend the solicitor's office on the 14th and did not attend at all until 31st May.
  90. The next criterion is irrelevant, because there is no question of a trial date, and of the two final criteria in CPR 3.9 it is necessary to adopt a rather different approach in public law cases. I refer to the effect which the failure to comply has on each party, and the effect which the granting of relief would have on each party.
  91. In general, an appellant's advisers should realise that after the Immigration Appeal Tribunal and two High Court judges have all said "no", the seven-day rule in CPR 52.15 is to be taken very seriously. I can envisage that exceptional circumstances might exist in a particular case which might lead this court to consider it just to extend time, but I would not wish to fetter the discretion of the court when considering a future case by going beyond the expression "exceptional circumstances", which is the term now used in CPR 54.23(2) in an asylum context.
  92. For these reasons I would refuse the extension of time in this case. I do not think that the circumstances, or the considerations as set out in CPR 3.9, are such as to militate towards discretion being exercised in favour of the appellant.
  93. MR JUSTICE GAGE: I agree with both judgments.
  94. LADY JUSTICE ARDEN: I agree with the judgment of my Lord Brooke LJ.
  95. Order: application for permission to appeal refused. Application for extension of time refused.

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