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United Kingdom Asylum and Immigration Tribunal
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> M v Secretary of State for the Home Department (Kazakhstan)  UKIAT 00169 (11 December 2003)
Cite as:  UKIAT 00169,  UKIAT 169
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APPEAL No.  UKIAT 00169 M (Kazakhstan)
Date of hearing: 13 October 2003
Date Determination notified: 11 December 2003
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||RESPONDENT|
'She has now withdrawn her claim for asylum so I must assume the treatment and harassment she claims to have suffered was not of a level she that would have established a Refugee Convention claim or an Article 3 claim and as I attach little weight to this in considering her situation on return.'
'A large part of her evidence was considered irrelevant to the Article 8 issue but in fact was material in establishing how the appellant found her (sic) forced to leave her country. She and her husband have suffered considerable persecution and received death threats and have no authority to turn to as the police are involved with the family. This rather important issue which forced her husband and then her to leave Kazakhstan was not even considered.'
The issue of withdrawal of the asylum grounds of appeal and its consequences
"…like the Tribunal, we consider that the scheme of the Immigration and Asylum Act 1999 is that in relation to any one administrative decision, there should only be one appeal to an adjudicator, albeit this could be on a number of grounds which might be unrelated or related".
The Adjudicator's treatment of difficulties in Kazakhstan in the context of Article 8
Guidelines on withdrawal of asylum grounds of appeal
(i) Where the asylum aspect of an appeal is withdrawn, the Adjudicator should ensure that there is no doubt but that this is what is intended;
(ii) The basis on which the withdrawal is being made should be carefully noted – e.g. is it because it is conceded there is effective protection or a viable internal relocation alternative or is it simply, as in most cases of this kind, because there is no Refugee Convention reason of race, religion, nationality, political opinion or particular social group (see paragraph 16 above)?
(iii) Where the withdrawal of the asylum aspect is not prima facie compatible with any continued assumption that the claimant faces Article 3 serious harm or ill-treatment if returned, the Adjudicator will be entitled to find that there is no real risk of such harm, unless there is some particular feature of the case that negatives this.
(iv) However, as a point of best practice and so as to avoid any misunderstanding, the Adjudicator should ask the appellant's representative whether, in the light of the withdrawal on asylum grounds, it is formally conceded that there is no real risk of Article 3 harm.
(v) If it is conceded that there is no Art 3 point but that there is an Art 8 point, adjudicators should not disregard evidence relating to Art 3 harm, since there are reasons why an asylum appeal might not be appropriate even though the risk of some harm remains. Even if it is accepted that the degree of treatment on return would not engage Art 3, it is possible that the hardships might be relevant to an aspect of an Art 8 claim. Any consideration of an Art 8 claim in such circumstances, must, however, be subject to the constraints set out by the Court of Appeal in Razgar  INLR 543.
DR. H.H. STOREY