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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC Admin 7
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Case No: CO/2582/4427/4428/99
Neutral Citation Number:  EWHC ADMIN 7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
THE HON MR JUSTICE TURNER
Secretary of State for the Home Department
Secretary of State for the Home Department
Ex Parte JAVED
Secretary of State for the Home Department
Ex Parte ALI
Secretary of State for the Home Department
Ex Parte Ali
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr DRABBLE QC & MR FRIPP (instructed by Powell & Co for the first Claimant)
Mr BLAKE & Mr GRIEVES (instructed by Bhogal & Lal for the 2nd and 3rd Claimant)
Mr KOVATS (instructed by Treasury Solicitors for the Defendant)
As Approved by the Court
Crown Copyright ©
1. These applications raise a common question in relation to the designation, in 1996, of Pakistan as a safe country of origin and its continued designation, as such, at the time of the hearing of the applicants' asylum appeals in May and August 1999. The applicants also challenge individual errors by Special Adjudicators in their separate decisions concerning the applicants' cases.
2. The applicant Javed claimed asylum in the United Kingdom as the result of religiously motivated acts allegedly suffered by him in his home country between 1991 and 1996, when he left Pakistan and arrived in this country. The applicants Zulfiqar and Abid Ali claimed asylum in the United Kingdom as the result of alleged political violence in their home country in the period 1997-1999. Their claims for asylum were dismissed by the Secretary of State who at the same time certified them under the provisions of paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993, as amended by the Asylum and Immigration Act 1996. The Schedule as amended provides as follows:
5(1) This paragraph applies to an appeal by a person on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act if the Secretary of State certifies that, in his opinion, the person's claim on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or be required to leave, the United Kingdom is one to which
(a) sub-paragraph (2) ... below applies
(b) sub-paragraph (5) below does not apply
(2) This sub-paragraph applies to a claim if the country or territory to which the appellant is to be sent is designated in an order made by the Secretary of State by statutory instrument as a country or territory in which it appears to him that there is in general no risk of persecution.
(5) This sub- paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent.
3. The consequences of certification under this procedure are intended to be that unsuccessful claims should be summarily and expeditiously disposed of without risk to the life or person of the asylum seeker. It is necessary also to note the provisions of sub-paragraph (5) which applies when there is a likelihood that the appellant has been tortured in the country to which he is to be sent. Sub-paragraph (7) then provides that if the Special Adjudicator agrees that the claim is one to which sub-paragraph (2) applies, but sub-paragraph (5) does not, there is no right of appeal to the Immigration Appeal Tribunal. It is also necessary to note that the first Order made under paragraph 5 has to be laid before Parliament and approved by resolution of both Houses. Sub-paragraph (9) provides that any subsequent order is subject to annulment in pursuance of a resolution of either House. By The Asylum (Designated Countries of Destination and Designated Safe Third Countries) Order 1996 (the 1996 Order) which came into force on 20 October of that year, Pakistan and other countries became a designated countries.
4. Challenges made on behalf of the Javed were as follows:
1. The decision of the Secretary of State to have laid the draft of what was to become the 1996 Order before Parliament;
2. The failure to promote any subsequent Order to remove Pakistan from the so-called `White List' of designated countries;
3. The decision of the Secretary of State to certify the individual case of the applicant, having regard to his particular circumstances;
4. The decision of the Special Adjudicator in relation to the applicant's credibility in respect of his account about what happened to him while he had been held in the police station.
5. The application of the two Alis adopted §1 above as the first of their challenges. They also challenged:
2. That if Pakistan were to remain a designated country, certificates ought not to be issued in cases in which there was a well known background of political violence and persecution in particular from the political activities of the MQM movement (as to which see below);
3. The rejection by the Special Adjudicator, on uncontested evidence from the applicant, that he was regularly beaten while held in police custody and in prison pursuant to sentence and that such constituted torture for Convention purposes;
4. The Special Adjudicator's decision on the merits of the instant appeal which resulted in the applicant being denied a right of appeal to the IAT.
The first challenge
6. Given the record of human rights in Pakistan, the applicants submitted that that country was not one of which it could, properly have been said at the time when the draft order was laid before Parliament that there was, "in general, no serious risk of persecution" see Paragraph 5(2) of the Second Schedule above. This required that before designation could properly take place for the purposes of paragraph 2 of the 1996 Order, there had to be evidence upon which the Secretary of State could reasonably conclude that Designation under the provisions of Paragraph 5(2) was appropriate. Even if that proposition could not be made good, it was submitted that in the light of the decision in the case of Shah and Islam (see below) and the fact that there was a continuing obligation on the Secretary of State to review the appropriateness of the continued designation of Pakistan its continued designation was not appropriate. Had he done so, in the light of information emanating from a wide range of respected sources, he would inevitably have taken steps to remove Pakistan from the list of designated countries, the so-called "White List".
7. It was also submitted that although a country might be properly designated, the Secretary of State had nevertheless to give individual consideration to each asylum application and consider whether or not it was appropriate to certify in that case. In considering that issue it was relevant to take into account that fact that the rationale of the certifying procedure was essentially for administrative convenience. As a consequence the rights of the individual should be properly considered at the time when given when the decision to certify was taken.
8. The factual background to Javed's cases is as follows. He is a member of the Ahmadi community. In about 1991 at the age of 15 he was expelled from the school at which he had been the only Ahmadi pupil. It was alleged against him that he had been attempting to explain his Ahmadi beliefs to fellow pupils; by reason of his expulsion he was effectively prevented from enrolling in any other school. The applicant was in possession of a certificate which explained the reasons for his expulsion. In about 1991, the applicant opened his own shop. There he was at first harassed by former pupils, and later was attacked by them. He was severely injured in the attack and was left for dead. Although the applicant reported the matter to the police, he discovered that his attackers had pre-empted him by filing a complaint against him. He was told that if he wanted to avoid arrest and imprisonment, he should renounce his Ahmadi faith. The applicant moved to an address some distance away from the area of his attack in order to attend the funeral of an uncle. He learned that his attackers claimed that he had been illegally preaching while there. His uncle had been taken for questioning in connection with the incident. Because the applicant felt unsafe he moved to stay with an aunt in Sialkot in Punjab. Although the applicant had returned to his home area to attend the funeral of another of his uncles, he became aware that the police were approaching. He therefore returned to his aunt in Sialkot. In 1996, the applicant once more returned to his home area in order to attend the funeral of his sister. The police tried to arrest him, but he was able to flee and return to his aunt. While there, he was attacked and wounded by a man with a knife. Eventually, the applicant's father was able to make arrangements for the applicant to obtain a passport. As he had never seen it he did not know whether the passport had been issued in his, or another's, name. The passport remained in the hands of the agent throughout. The applicant was on a flight from Pakistan to Canada by way of London when, during transit transfer, the agent disappeared.
9. From this history it is apparent that the basis of the claim for persecution is that by non-state agents which the authorities either tolerated or against whom they were otherwise unwilling or unable to offer protection.
10. In his decision letter dated 29 May 1996, the Secretary of State noted that the applicant had been able to leave Pakistan in his own identity and that he had attempted to enter the United Kingdom on a false passport. Both were factors which he said undermined the credibility of the applicant's claim. The Secretary of State went on to state that he was aware that some religious minorities have been discriminated against by amendments to the Penal Code and that members of the Ahmadi sect are specifically discriminated against under Ordinance XX April 1988 although it is recognised as a minority religious group. The Secretary of State further stated that he was aware that certain individuals have experienced difficulties and that, in general the judiciary remains independent. There is no systematic persecution of religious minorities. He also stated that he was aware of many false claims for asylum emanating from Pakistan, sometimes supported by false documents.
11. Finally, the Secretary of State noted that people in groups such as those who may have attacked the applicant cannot be regarded as agents of persecution unless it could be shown that their activities were either knowingly tolerated by the state authorities or that they were unable or unwilling to offer effective protection.
12. The decision of the Special Adjudicator was promulgated on 31 March 1999. She comprehensively disbelieved the applicant's account both as to his circumstances in Pakistan and also the circumstances of his entry to the United Kingdom. It appears that in 1992 the applicant claimed that he was the subject of a First Investigation Report (FIR) which he produced, and stated that he had never been arrested pursuant to it. It had been issued from a police station, the existence of which, on enquiry, the British High Commission was unable to confirm. The Special Adjudicator drew attention to the fact that the applicant had not addressed in evidence factual matters raised in the letter from the High Commission. This she found to be surprising and, in consequence, felt unable to place any weight on the applicant's claim or the documents which had been submitted in its support, including the FIR. Enquiries made subsequent to the determination show that there was indeed a police station at the place named in the FIRs as the applicant had asserted. On the applicant's behalf, it was said that this constituted a material error of fact on the part of the Special Adjudicator.
The Alis' claims
13. They are both Pakistani by nationality. They sought asylum as the result of acts of political violence in Pakistan in the period 1997 to 1999. Both claims were certified by the Secretary of State. The certificates were upheld by the Special Adjudicator and their appeals were dismissed.
14. Abid Ali He is a Sunni Muslim. It was his case that he was also a member of an organisation known by its initials as SSP which is the Pakistan Force of the Companions of the Prophet. This is a militant organisation which champions the cause of the Sunni Muslims who make up the great majority of the population of Pakistan. The Sunni and the Shia Muslims are in frequent and violent dispute and there have been terrorist attacks by the Sunni on the Shia Muslims. In addition, this applicant claimed membership of another organisation known as Sipa-el-Sahaba which was in opposition to the government of Benazir Bhutto. As such he had been involved in numerous demonstrations, processions and protests which had led to him being involved in fighting. In respect of these activities the applicant had been tried, convicted and sentenced on a number of occasions. While in prison he claimed that he had been beaten up several times. He feared being killed if he were returned to Pakistan. The Special Adjudicator accepted the applicant's evidence about what had happened to him in Pakistan. He also accepted that the applicant had engaged in violent and criminal activity in Pakistan in the course of which he had shot and injured an opponent. In respect of these activities the Special Adjudicator did not consider that the applicant had received unreasonable sentences. The Special Adjudicator rejected the contention that Sunni Muslims were persecuted in Pakistan by the authorities. He also rejected the notion that the minority Shia were agents of persecution within the meaning of the Convention, on the basis that there was no evidence that the authorities were unable or unwilling to offer the applicant domestic protection. If the applicant wished to avoid confrontations it was open to him to live elsewhere than in Lahore. The Special Adjudicator also rejected the concept that the beatings which the applicant said he had received while under arrest in the police station and in prison under sentence constituted torture under the provisions of the Convention.
15. Zulfiquar Ali His claim to asylum was that he had formerly supported that MQM movement. It was a movement which had been opposed by the PPP (Pakistan People's Party). This movement claimed that it had become subject to persecution by the army during the period of government of Nawaz Sharif. As the result of his association with the MQM, the applicant claimed that he had been detained and ill-treated and forced to join a breakaway group known as MQM-H. From the in country reports it was contended that MQM-H members were used to persecute MQM members. The applicant claimed asylum on the basis that as he was a forced member of MQM-H, he was at risk from persecution by the security forces because of his refusal to co-operate with the army in their clandestine use of MQM-H to attack the MQM.
16. The Special Adjudicator found that, in the light of background human rights material, it was possible that the applicant's account could have been correct. However, he rejected the claim because of a lack of credibility. Here it is to be noted that the Secretary of State had made no reference to an adverse finding on this issue in his refusal letter. It was submitted before me that credibility had not been put in issue before the Special Adjudicator and, accordingly his decision to do so was unfair and, therefore, judicially reviewable. It does seem that the Special Adjudicator had himself raised an evidential point in regard to the question whether the applicant was the same person as one "Zulfiquar alias Zulfi" who had been named on one of the FIRs which the applicant had produced in evidence. There was also evidence in the form of newspaper articles which identified a person having the same name as the applicant as being the person who was wanted in connection with murders of eight members of the MQM. These murders were committed after he had arrived in the United Kingdom. It was the fact that if, as he claimed, he was the same Zulfiquar Ali, he was wanted in connection with those murders which indicated that he did face persecution in Pakistan.
17. The Special Adjudicator said, "Credibility, was crucial to the success or otherwise of an appeal". After reviewing the state of violence within Pakistan, the Special Adjudicator said
In my view, the situation in Pakistan (and in Karachi in particular) is such that it is possible that the account given to me by the (applicant) of his experience in Pakistan could be correct. I am entitled to reach this conclusion even though the Secretary of State has designated Pakistan ...
The Special Adjudicator accepted from the documentary evidence before him that the applicant was of interest to the police, but because there was no evidence other than from the applicant himself that he was the "Zulfiquar alias Zulfi" named and wanted in connection with the FIRs he rejected this part of the claim. He further found that he could not be satisfied that the first FIR was a genuine document and, even if it were, that the person named in it was the applicant. Despite the fact that there had been no challenge during the hearing to the true name and identity of the applicant, the Special Adjudicator was not satisfied that the applicant and the man named in the FIRs and the newspaper articles were one and the same. There was available in the respondent's bundle at the hearing, although not produced, a copy of the applicant's passport which showed that his true name was, indeed Zulfiquar Ali and he signed his name as "Zulfi". The Special Adjudicator concluded, after referring to a number of other documents that the applicant's evidence could not be relied on. In consequence he found that he could not either be satisfied that the applicant had a well founded fear of persecution and he also rejected the applicant's account of having been tortured. He upheld the certificate of the Secretary of State and dismissed the appeal.
The challenge to the designation of Pakistan
18. In response to the applicants' factual challenge to the propriety of the designation of Pakistan it was contended on the Secretary of State's behalf that it was not competent for the court to embark on an exercise which involved challenge to the decision of the Secretary of State, more especially, since his decision had been approved by Parliament. Reliance was placed on the case of Regina v. Secretary of State for the Environment ex parte Hammersmith and Fulham London Borough Council  1 AC 521. In this case Lord Bridge of Harwich, when giving the speech with which all other members of their Lordships House agreed, said that he regarded Lord Scarman's speech in Regina v. Secretary of State for the Environment ex parte Nottinghamshire County Council  AC 240 as containing an accurate formulation of the restriction of the scope of judicial review which was in point in the Hammersmith Case. The submission on behalf of the Secretary of State had been that if a statute required the House of Commons to approve a minister's decision before he could lawfully enforce, it when the action which he proposed complies with the statute, then it is not for judges to declare that the results of the proposed action are so unreasonable in their consequences that the decision must itself have been perverse and should, therefore, be set aside. Except in a case in which it could be shown that the minister had been motivated by bad faith those were matters, said Lord Scarman, which gave rise to questions of policy for ministers to decide. At p597 of his judgment in the Hammersmith Case Lord Bridge went on to say
The restriction which the Nottinghamshire Case  AC 240 imposes on the scope of judicial review operates only when the court has first determined that the ministerial action in question does not contravene the requirements of the statute, whether express or implied, and only then declares that, since the statute has conferred a power on the Secretary of State which involves the formulation and the implementation of national economic policy and which can only take effect with the approval of the House of Commons, it is not open to challenge on the grounds of irrationality. Both the constitutional propriety and the good sense of this restriction seem to me to be clear enough. The formulation and the implementation of national economic policy are matters depending essentially on political judgment. The decisions which shape them are for politicians to take and it is in the political forum of the House of Commons that they are properly to be debated and approved or disapproved on their merits.
19. For the Secretary of State it was further submitted that the applicants' reliance on the case of Islam v Secretary of State for the Home Department and Regina v. Immigration Appeal Tribunal ex parte Shah  AC 629 (Shah and Islam) was misplaced. It was not authority for the proposition that there was in general a risk of persecution of women in Pakistan such that Pakistan could not lawfully have been, or continued to be, lawfully designated. Properly understood, it was a case which concerned the identity of a social group, in this case women. In the evidence filed on behalf of the Secretary of State it was said that he had not only considered the question whether women could constitute a social group, but whether for any other reason they suffered difficulties at the hands of the state.
20. It was submitted on behalf of the Secretary of State that support for his submissions based on the Hammersmith case could be found in a passage in Regina v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants  1 WLR 275 where, at p 291H Simon Brown LJ said
I do not pretend to have found this by any means an easy case. Powerful arguments are advanced on both sides. The Ex parte Leech principle  QB 198 is undoubtedly of assistance to the applicants and yet the analogy with Ex parte Leech is not, as it seems to me, exact. As stated, I for my part have no difficulty in accepting the Secretary of State`s right to discourage economic migrants by restricting their benefits. That of itself indicates that the Regulations are not invalid merely because of their "chilling" effect (Dickson J.'s phrase in Solosky v The Queen (1979) 105 D.L.R. (3d) 745, 760) upon the exercise of the deprived asylum seekers' rights under the Act of 1993.
It is, moreover, as I recognise, one thing, as in Ex parte Leech to condemn direct interference with the unquestioned basic right there identified; another to assert that the Secretary of State her is bound to maintain some benefit provision to asylum seekers so as to ensure that those with genuine claims will not be driven by penury to forfeit them, whether by leaving the country before their determination or through an inability to prosecute them effectively. The present challenge, I therefore acknowledge, involves carrying the Ex parte Leech principle a step further and this, moreover, in a field where Parliament has been closely involved in the making of the impugned Regulations.
I have nevertheless concluded that it is a step the court should take. Parliamentary sovereignty is not here in question: the Regulations are subordinate legislation only. The Hammersmith approach  AC 521 cannot, in my judgment, avail the Secretary of State: it applies only once the court has determined that the Regulations do not contravene the express or implied requirements of the statute-the very question here at issue. Parliament for its part has clearly demonstrated by the Act of 1993 a full commitment to the United Kingdom's Convention obligations. When the regulation-making power now contained in the Act of 1992 was first conferred, there was no question of asylum seekers being deprived of all benefit and thereby rendered unable to pursue their claims.
21. The reference in this passage to Ex parte Leech is to the case in which it was held prison Rules which enabled the authorities to read and intercept correspondence from a prisoner to his legal advisers was held to be ultra vires the rule making power as it conflicted with a prisoner's basic (human) right to seek legal advice from his solicitor.
22. It was held in the JCWI case that specific rights conferred by statute were not to be cut down by sub-ordinate legislation made under enabling powers contained in a different statute. By analogy, it was submitted that in the present case there was no error of law, as in JCWI but a decision taken by the Secretary of State on material which `appeared to him' to justify his decision to designate. This meant, it was said, that the courts should be very slow not only to investigate the facts but also reach a different conclusion from that reached by the Secretary of State and subsequently approved by Parliament. It followed that the court should be disinclined to follow the approach of the Court of Appeal in Turgut v Secretary of State for the Home Department  Imm A R 306. A case which had been relied on by the applicants. In that case the Secretary of State had refused to grant exceptional leave to remain to a failed Turkish asylum seeker. The basis of the claim for exceptional leave had been that if returned to Turkey the applicant would be subjected to treatment proscribed by Article 3 of the ECHR. In Turgut there was a challenge to the decision of the Secretary of State that there were "no substantial grounds......for believing that the applicant would be at real risk of Article 3 ill-treatment if returned to Turkey"; see p309 under `Issue 1'. Simon Brown LJ then reviewed Regina v Ministry of Defence ex parte Smith  QB 517 and Regina v Secretary of State for the Home Department ex parte Bugdaycay  AC 514. At p315 of his judgment in Turgut he continued:
It is one thing to say that an administrative decision to deport will be rigorously examined and subjected to the most anxious scrutiny: quite another to say that the court will form its own independent view of the facts which will then necessarily prevail over whatever view has been formed by the Secretary of State.
23. Simon Brown LJ then referred the cases of Vilvarajah v United Kingdom  14 EHRR 248 and Soering v United Kingdom  11 EHRR 439 and continued
I therefore conclude that the domestic court's obligation on an irrationality challenge in an article 3 case is to subject the Secretary of State`s decision to rigorous examination, and this it does by considering the underlying factual material itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State Only if it does will the challenge succeed.
All that said, however, this is not an area in which the court will pay any especial deference to the Secretary of State's conclusion on the facts. In the first place, the human right involved here-the right not to be exposed to a real risk of article 3 ill-treatment-is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is placed before it. Thirdly, whilst I would reject the applicant's contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather that reassess the position with an open mind. In circumstances such as these, what has been called the "discretionary area of judgment" - the area of judgment within which the court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal (see Lord Hope of Craighead's speech in R v DPP ex parte Kebilene  3 WLR 972 at 993-994)- is a decidedly narrow one.
The learned Lord Justice then proceeded to an analysis of the extensive evidence which had been placed before the court. Recognising that there was neither time nor space in a judgment of manageable length to carry out the exercise in depth, he nevertheless performed that task over the next five pages of his judgment. At p321 of the report, he expressed himself thus:
I come to my last conclusion. It is not one I have found easy to reach. It can now, however, be stated very shortly. Despite the great wealth of material available to show that grave human rights abuses still regrettably occur in Turkey, and despite the lingering sense of unease which one must inevitably feel at the return of this applicant to Turkey, I am unable to hold that the Secretary of State was bound to find the risk of this particular applicant being ill-treated to be a real one. Clearly there exists a conflict of opinion as to the degree of risk faced generally by returnees to Turkey. I cannot say that the Secretary of State has not conscientiously appraised the question. Whether I myself would necessarily have made the same judgment is immaterial. His judgment, I conclude, was reasonable. It is therefore unassailable. I would dismiss the application.
24. It was submitted on behalf of the Secretary of State that, accepting the correctness of the decision of Turgut on its own facts, the scope for the exercise of discretionary judgment and judicial intervention, was narrow. What was new was the requirement in Article 13 of the ECHR that there should be an effective remedy available to the judiciary to determine whether or not the executive had reached a correct decision on its facts. Unless the Courts could review the decision of the Secretary of State on the facts, there would be no effective remedy when a challenge was made under Article 3 of the Human Rights Convention. It was the position of the Secretary of State that the Court of Appeal in Turgut recognised this but nevertheless held that it was a tightly constrained remedy. The framework of the present case was significantly different from that in Turgut. In the present case, there had been a full consideration by the Secretary of State, there also been lengthy and full debates in both Houses of Parliament which had then affirmed the draft Order. Consequently, it was submitted that there was, in reality, no scope for intervention by the Courts by way of judicial review of the decision of the Secretary of State to lay the draft Order before Parliament. The position was a fortiori where, as here, Parliament had affirmed the Order.
25. In reply, the applicants submitted that the approach which the Secretary of State had to follow in order for a country to be elligible for certification was to establish a negative, that there was, in general no risk of persecution.
26. The applicants took issue with the three fundamental bases of the argument of the Secretary of State, which were that they could only succeed if a super-Wednesbury test such that he had "taken leave of his senses" had to be satisfied if there was to be a successful challenge to designation. The applicants also took issue with the proposition that Parliament was better equipped than the courts to supervise the exercise by the Secretary of State of his discretion and, finally, that the present cases raised no human rights issues, so that the decision in Turgut was of no application.
27. It was submitted that whether there was, or is, a general risk of persecution of minorities for Convention reasons was a matter which required careful evaluation and assessment of the conditions existing in Pakistan. There was no proper basis for suggesting that the debating and voting procedures in Parliament were better suited to determining whether or not the Secretary of State had properly directed himself on issues of fact and law than the Courts. The basis of decisions reached in Parliament could not be equated with judgments as to the factual and legal sufficiency of which Courts were accustomed to provide as part of their everyday function. In the course of the parliamentary debates there was no evidence introduced which was not before the Court in the instant case. The human rights issue plainly did arise in the context of the question whether identified minorities had a well founded fear of persecution. Consequently, there was an obligation on the United Kingdom to provide an effective remedy under Article 13 of the Convention, notwithstanding that the decision in question had been taken by a person acting in an official capacity.
28. It was possible to accept that political judgment had some place in the decision whether or not to designate any particular country, but this could only be exercised after careful evaluation of the statutory criteria. Such an exercise was different in principle from what had been required in the Nottinghamshire and JCWI cases and would only arise if the statutory threshold for designation had been crossed.
29. It was also submitted that the Secretary of State had fundamentally misunderstood the purpose of designation. This was not, as he had submitted, merely to speed up procedures where there were large numbers of claims to be considered but also to weed out cases which were obviously unfounded. The Applicant's submitted that if designation (with consequent curtailment of appeal rights and expedited procedures) was to be applied, there had to be some assessment of the probable quality of the claim itself such as that claims from a designated country would, as a whole, be unlikely to raise serious issues about the necessity of providing protection to asylum seekers. It was not clear what the Secretary of State could have had in mind when proclaiming in the explanatory memorandum to case workers that
.....asylum caseworkers and adjudicators will be able to take account of the fact that the country has been designated by Parliament when considering applications involving a designated designation.
Did this mean that the decision maker was expected to exercise more or less anxious scrutiny? This submission had a serious component to it which raised the possibility that if there was no qualitative assessment of the claim before designation, and if the rationale for designation was solely for administrative convenience because of the numbers involved, such a difference in treatment might be discriminatory treatment on grounds of nationality alone and without objective justification. Such would be contrary to the provisions of Article 3 of the Refugee Convention. A similar result would obtain under the ECHR by the application of Article 3 of that Convention when taken in conjunction with Article 13.
30. It is convenient, at this stage to consider the issue of principle, that is to say whether the court ought even to embark on a review of the evidence which was before the Secretary of State at the time when the draft Order was laid before Parliament with Pakistan included on the White List. And, if it ought to embark on such an exercise how closely it should consider whether or not Pakistan measured up to the criterion for continued designation and so continue to be included on that list.
31. The historical position of the courts is that, except for the purpose of reviewing the decision of the executive in relation to one of its decisions on Wednesbury grounds, they have not been willing to embark on an exercise of the evaluation of evidence. The reason is clear. Parliament has entrusted the making of such a decision to the relevant minister or other governmental body. The court had a purely supervisory role. Under the provisions of the Human Rights Act, the Court is now under a positive duty to give effect to the European Convention. One of the requirements of the Convention is that, so far as Article 3 is concerned in particular, there must be an effective remedy, as provided for by Article 13, in cases of suspected breach. Such, was the approach of the Court of Appeal in Turgut. Such also, in my judgment, should be the approach of the court in the present case. The submissions made on behalf of the Secretary of State on this point have to be rejected. The present case does not provide any analogy with the line of authority exemplified by the Nottinghamshire and Hammersmith cases (above). It is not concerned in any way with financial judgment nor, at the stage of the process with which it is concerned, questions of political judgment. A country may not be lawfully designated unless it falls within the criteria contained in paragraph 5(2) of the Schedule to the Asylum and Immigration Act 1993, as amended. As a matter of legal analysis, the Secretary of State must be satisfied that the criteria in paragraph 5(2) have been met before the political decision is taken to lay the draft Order before Parliament. In order that he should be so satisfied, he must carry out an evidential investigation which leads to a factual decision that the relevant condition has been satisfied. I respectfully embrace and would adapt the observation of Simon Brown LJ in Turgut (p316) to the circumstances of the present case to the effect that
the court is hardly less well placed than the Secretary of State to evaluate (the evidence for in country assessments) once the relevant material is placed before it.
Which, in this case it has.
32. Accordingly, it is to the evidence I must now turn. If I refer to the principal sources to which my attention was drawn, it will readily become apparent what are the reasons for the decision which follows. In addition to the material which can be gleaned from Shah and Islam (see below) there were the following documents:
a. Home Office 1996 Country Assessment. This was contained within the Explanatory Note provided to Parliament under section 1 of the Act of 1996.
b. Home Office 1998 Country Assessment ................. In section iv of this document it was recorded that the United States State Department assessed the overall human rights situation as "poor", this was despite pledges to address such problems. Security forces were said to commit extra judicial killings, used arbitrary arrests and detentions, torture and abuse of prisoners, rape of women. Religious zealots discriminate against religious minorities (Ahmadis and Christians). Religious and ethnic based murder and civil disturbances occur. In 1996 the United Nations representative visited Pakistan and found a number of areas of concern, despite the establishment of a Ministry of Human Rights, he found "no political will to address the issue of impunity and saw no serious effort by the Government to reform the police or the judicial system or to prosecute those responsible for human rights abuses.
c. The Explanatory Note itself claimed that the Secretary of State had assessed the general risk of persecution from a wide range of sources leading to the conclusion that the relevant criterion of there being "in general no serious risk of persecution". He had also had regard to the
Obligations of the state in adhering to international human rights instruments in practice, its democratic institutions, elections and political pluralism ........ the availability and effectiveness of legal avenues of protection and redress.
d. Sources of information which it was said that the Secretary of State had considered included decisions of the Immigration Appellate Authorities which showed that Ahmadis were not a persecuted minority, as such, but that individual Ahmadis might suffer persecution according to particular circumstances. In this context, the case of Kaleem Ahmed in the Immigration Appeal Tribunal, Chairman HH Judge Pearl (promulgated on 7 December 1995 was relied upon. It was a case which gave detailed consideration to the position of Ahmadis in general and included a valuable discourse on the history of the Ahmadi movement. In the course of his ruling the Chairman said
The importance of the Department of State (US) Report for 1994 is that it comprises a number of Amnesty International Reports, in particular the 1991 Report on Violation of Human rights of Ahmadis which concludes: "The law enforcement authorities do not appear to provide adequate protection or redress to Ahmadis who have been subjected to assault, attack or provocation by non-Ahmadis". Another AI Report, of May 1994, states that there have been 13 incidents between October 1993 and February 1994 when the Ahmadis have been attacked by Islamist groups in Lahore. Two have been killed and over a dozen seriously injured.
The Chairman quoted from the Canadian Report
The Ahmadiyya community continues to suffer from a policy of discrimantion supported by the Islamabad government.
He also referred to the difficulties which Ahmadis experience in obtaining passports. A 1994 Report from Canada indicated that the "level of harassment ... depends primarily on the local population and administration" and it is easier for Ahmadis to live in areas where there are no large concentrations of other Ahmadis.
The Chairman went on to refer to a number of other cases which had been decided by higher courts, the Immigration Appeal Tribunal itself as well as by Special Adjudicators in which the position of Ahmadis had been considered. He concluded by saying
The provisions of the legislation, especially that referring to blasphemy, is sadly often used by neighbours who wish to engineer the disgrace of those whom they see as "traitors". The Reports refere to examples where the police, and often the lower courts, simply fail to protect Ahmadis from the worst excesses.
e. A letter from the Secretary of State for Foreign Affairs dated 8 May 1996 in which Mr Rifkind had written that he had
Expressed concern to the Government of Pakistan about (the ) treatment of minorities and urged the government to take action to prevent abuse of the blasphemy laws. We understand that the Government would like to amend the blasphemy laws, but they have encountered strong opposition to any changes and none has yet been enacted.
33. As has already been indicated, the applicants placed considerable weight on the importance of the decision in the case of Shah and Islam contending that it demonstrated that for one particular social group, at least, the evidence that it was subjected to persecution for Convention reasons was overwhelming. It is appropriate to give that case detailed consideration at this stage since it contained factual material which was available to the Secretary of State at the time when the decision to include Pakistan in the White List was taken, and remained equally valid at the dates of the decisions by the Secretary of State and the Special Adjudicators. It was the position of counsel appearing for the Secretary of State that this decision was no authority for the proposition that there is in general a serious risk of persecution of women in Pakistan. The relevant part of the headnote reads
A "particular social group" within the meaning of article 1A(2) of the Convention had to exist independently of the persecution so that persecution alone could not be relied on to prove the group's existence, but that cohesiveness was not an essential requirement; that ... because in Pakistan women were discriminated against as a group in matters of fundamental human rights, and the state gave them no protection because they were perceived as not being entitled to the same human rights of men, women in Pakistan constituted "a particular social group" for the purposes of (the) article.
34. It can be said at once that there can be no doubt that the ratio decidendi of the decision was as the Secretary of State contended. The real point of the case, so far as the present is concerned is on the question which underpinned the holding in relation to the "particular social group". The case had no point or prospect of success unless there were persecution of some (my underlining) person or group. In his speech at p 635 Lord Steyn, in a section headed Women in the Islamic Republic of Pakistan,said
On the findings of fact and unchallenged evidence in the present case, the position of women in Pakistan is as follows. Notwithstanding a constitutional guarantee against discrimination on the ground of sex a woman's place in society in Pakistan is low. Domestic abuse and violence towards women is prevalent ... . That is also true of many countries and by itself does not give rise to a claim for refugee status. The distinctive feature of this case is that Pakistan women are unprotected by the state: discrimination against women is partly tolerated ... and partly sanctioned by the state. Married women are subordinate to the will of their husbands. There is strong discrimination against married women, who have been forced to leave the matrimonial home or who have simply decided to leave. Husbands and others frequently bring charges of adultery against such wives. Faced with such a charge the woman is in a perilous position. Similarly, a woman who makes an accusation of rape is at great risk. The position is as described in a report of Amnesty International dated 6 December 1995 on women in Pakistan. The report states, at pp5-7
Several Pakistani laws explicitly discriminate against women. In some case they allow only the evidence of men to be heard, not of women. In particular, the Evidence Act and the Zina Ordinance, one of the four Hudood Ordinances promulgated in 1979, have eroded women's rights and denied them equal protection by the law. Women are also disadvantaged generally in the criminal justice system because of their position in society . . . Women are particularly liable to be punished under the Zina Ordinance which deals with extra-marital sexual intercourse . . . . Offences under this law attract different punishments according to the evidence on which the conviction is based.
35. After quoting further detail from the Report, Lord Steyn concluded
For what may seem to be a small minority, who are convicted of sexual immorality, there is a spectre of 100 lashes in public or stoning to death in public. This brief description of the discrimination against women, which is tolerated and sanctioned by the state in Pakistan, is the defining factual framework of the case.
36. In his speech, Lord Hoffmann considered the individual circumstances of the two applicants and said that that constituted a personal affair, directed against them as individuals. However, at p653 E-F, he continued
Secondly , there is the inability or unwillingness of the state to do anything to protect them. There is nothing personal in this. The evidence was that the state would not assist them because they were women. It denied them a protection against violence which constitutes persecution within the meaning of the Convention.
Then at p655B, he said
The distinguishing feature of the present case is the evidence of institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the state.
37. In the result, and after giving detailed consideration to the relevant material, it is clear in my judgment that the decision of the Secretary of State, to the effect that he was satisfied (that Pakistan was a country eligible to be included in the list) within the terms of paragraph 5(2) at the time when the decision to lay the Order before Parliament, can only have been reached on an erroneous view of the facts or of the law, or both. So far as women who fall within the parameters of the decision in Shah and Islam, there can be no realistic argument that they were and are other than a persecuted minority. So far as the Ahmadis are concerned, it is hard to understand the reliance which was placed by the Secretary of State on the decision in Khaleem Ahmed, the decision which makes plain the nature of the persecutory problems to which the Ahmadis are subject. So far as the position of other minorities, such as the MQM, are concerned it is of not direct relevance to the immediate decision whether they are also subject to persecution, since if the finding in respect of the group of women and the Ahmadis is correct, that will suffice to demonstrate that designation could not lawfully have been made by the Secretary of State. I should not leave this area of the case without confirming that I have given the factual material laid before the court the most anxious scrutiny with a view to seeing what was, or could now still be, the basis upon which it could fairly be said that there was "in general, no risk of persecution" of the relevant groups. I have to confess that I have been unable to see upon what basis the Secretary of State reached his initial decision. I decline to respond to the challenge offered to me by counsel for the Secretary of State when he submitted that I could only overturn the assessment of Parliament in affirming the Order if "it had taken leave of its senses". It would never be for the court to make any such judgment. Nor, for the reasons which I have given, is this part of my judgment so to be regarded. The decision of Parliament was a political one, based on a factual proposition determined by the Secretary of State that Pakistan was a country which satisfied the requirements of Paragraph 5(2). In that, he was, in my judgment plainly wrong.
38. In the alternative, it was further submitted that the Secretary of State had properly directed himself in law when he concluded that designation would be inappropriate if there was a significant level of persecution, even if it were targeted only at minorities. I agree with this submission
The specific challenges: General
39. Based on the evidence filed on behalf of the Secretary of State, it was said that none of the applicants' claims had been certified pursuant to any blanket policy to that effect. It had been done in accordance with the instructions issued to case workers. So far as relevant to present matters these were as follows:
This instruction sets out the criteria for certifying claims, the circumstances under which claims should not be certified, and the accelerated appeal procedures applied to such claims.
* Claims should be considered for certification only after they have been substantively considered on their merits against the criteria of the 1951 Convention. Caseworkers should never proceed on the basis that because an application would be eligible for certification if refused there is a presumption towards refusal.
* A claim should never be certified there is a reasonable likelihood that the applicant has been tortured in the country ... to which he is to be sent whether for a Convention reason or not.
2.2 Exceptions to the certification criteria
A claim should not be certified if any of the following apply:
* There is a reasonable likelihood that the appellant has been tortured in the country ... to which he is to be sent whether for a Convention reason or not (see the instruction on Torture);
* Any of the issues raised by the case are particularly complex. Such exemptions, however, are likely to be infrequent;
* Exceptional leave has been granted;
* The claim has been refused on grounds of non-compliance.
3.1 Procedure for certification where torture has been claimed
Where the issue of torture has been raised, this should be dealt with in the body of the reasons for refusal letter, and reverted. No attempt should be made to certify a case where there is reasonable evidence of torture, whether for a Convention reason or not. The certificate should say
" ... and that your claim is one to which paragraph 5(5) does not apply because the evidence you have adduced does not establish a reasonable likelihood that you have been tortured ..."
5.2 Assessing claims from national of designated countries.
Caseworkers should assess all claims from nationals of designated countries on their own merits against the criteria set out in the 1951 Convention as set out in the UNHCR handbook. On no account should a caseworker presume that an asylum claim should be refused merely because the applicant is from a designated country.
40. Submissions were then made in support of the primary challenge made by all the applicants as to the political history of Pakistan which had involved changes of government sometimes accompanied with violence, religious conflicts between sunni and Shia Muslims, between Muslims and the state Sharia courts on the one hand and Ahmadis, Christians and apostate Muslims on the other. It should be said that the MQM were Muslims displaced into Pakistan at the time of partition of Pakistan and India.
41. By letter of 29 November 1999, in response to a request that the designation of Pakistan be revoked, the Secretary of State wrote
We have acknowledged in our assessment that members of minority groups mentioned in your letter experience human rights problems, and suffer persecution at the hands of others. We are of the view, however, that this does not amount to State persecution. In general, members of those particular groups are not likely to face persecution from the present Pakistani government. Following the October coup the country's new Chief Executive ... has openly advocated the need for religious tolerance and has endeavoured to curtail political exploitation of religion. We are therefore of the view that the Government of Pakistan does not actively or systematically persecute religious minorities.
42. It is possible that this response missed the point which was being made, which was not that it was the State which was the persecutor, rather was it that it was that it was unable or unwilling to provide protection from non-state agents. Furthermore, the requirement which had to be satisfied for designation was, not risk of persecution by the state but, in general, a risk of persecution. This latter may consist of state or non-state agents.
43. In its very nature, persecution will be an activity which is directed against minorities within a population whether by the state, or by non-state agents against which the state is unwilling or unable to protect the minorities involved. It was submitted that paragraphs 5(1) and (2) of the Schedule had to be construed in its legislative context. The paragraph was intended to provide for designation of a country where persecution, or the risk of persecution, of minorities did not generally take place. This was in contrast to a situation of which it could be said that it was the majority of the population which was generally free of persecution or the risk of it. The Secretary of State, correctly, in my judgment, understood these applications to be challenges to his decision on a matter of fact in relation to the condition of certain minorities within the State of Pakistan. It was recognised by the applicants that there could be scope for an element of appreciation about the treatment of minorities on the part of the Secretary of State. This might mean that it was possible to have two, or more views, about what was the actual position informed judgment about the appropriateness of the designation.
Javed's specific challenge
44. Sufficient has already been set out above to indicate the particular complaints made on his behalf in respect to the nature of his claim. In short it can be said that within his original statement there was material which compelled the conclusion that he had suffered persecution by non-state agents, because of his Ahmadi connections, which was, at the least, tolerated by the police. There was abundant evidence before the Special Adjudicator as to the position of Ahmadis. It was pointed out that the Country Assessment, itself, stated that "Applications for asylum from Ahmadis are given very careful scrutiny".
45. Apart from this particular challenge, it was submitted that where the Special Adjudicator had based his decision, in part on a basis which could be shown to be incorrect (the supposed non-existence of the relevant police station) then the decision stood to be quashed as a matter of simple justice (ex debito justitiae). It was moreover, unfair for the Special Adjudicator to have treated the applicant's silence about the existence of the police station as significant and leading to the conclusion
I do not, therefore, place any weight on his claim in this matter or on the documents submitted in support of the claim.
46. It was submitted that, in his case, there was evidence which suggested, even if it did not establish, the fact that he had been tortured. On either basis, all the applicant had to do if his case was not to be certified was to establish "a reasonable likelihood of having been tortured in the country to which he is to be sent"; see instructions to caseworkers, above. As has already been noted, the applicant's essential account was accepted by the Special Adjudicator. So far as can be ascertained from the Determination, the Special Adjudicator did not take issue with the proposition that the applicant had been beaten by the police on several occasion while in detention and by others while in prison. Yet he did not find that theses beatings amounted to torture whether for Convention purposes ot those of designation.
47. Guidance as to the meaning of "torture" is to be found in the publication "UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment" (Comm** 9353) Article 1(1) which was made part of United Kingdom domestic law by section 134 Criminal Justice Act, 1988. Its meaning is:
any act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person a confession, punishing him for an act which he or a third person has committed or is suspected of having committed, or intimidating him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of public officials or other person acting in an official capacity.
48. The submission was that there was nothing to indicate how, if the essentials of the applicant's account were to be accepted there was other than a reasonable likelihood he had been tortured within the true meaning of this definition. Neither the Secretary of State nor the Special Adjudicator had provided any reasons for their conclusions that such beatings did not amount to torture. Accordingly, it was submitted that the certificate could not stand in his case. The terms in which the Special Adjudicator expressed himself do not lead to the conclusion that he found it easy to explain his decision that
(The applicant) complains that the police beat him up. I do not consider that is torture.
At least the Secretary of State had condescended to the position that
He considers that these actions arise from failures of discipline and supervision rather than from any concerned (sic) policy on the part of the ... authorities ...
albeit no reason is given for this conclusion nor why such did not constitute torture within the meaning of the Convention against Torture.
49. His case was based on the political instability of Pakistan having regard to the activities of the MQM. This may be summarised, for present purposes as follows: In 1988, the MQM formed an alliance with the PPP. After about a year it broke away from the PPP and formed an alliance with the political wing of the Muslim League. In 1991, during the period of government of Nawaz Sharif, the movement split into the MQM and MQM-H factions. MQM-H co-operated with the government in making arbitrary arrests and perpetrating ill-treatment of ordinary MQM supporters which led to violent confrontations between the two wings during the period 1992 and 1996. In the period 1997 to 1998 MQM was in political alliance with the government. It was submitted that this complex (though much condensed) account meant that there had been no period of general political stability in Pakistan which had led to the violent activities both by MQM and the forces of the state with MQM-H assistance.
50. In his decision, the Special Adjudicator found that the situation in Pakistan, in general, and Karachi, in particular, was such that the applicant's account of his experiences in Pakistan could have been correct. As noted above, however, the Special Adjudicator had rejected the applicant's claim on the basis of a general lack of credibility which had not been raised as an issue by the Secretary of State nor yet had he been cross-examined on issues which went to the issue of his credibility, including those events which had occurred during his absence from Pakistan.
51. Finally, it was submitted that the applicant's claim had been certified by the Secretary of State at a time when the political situation in Pakistan was unstable and supporters of MQM were at risk of being persecuted by state or non-state agents alike.
52. The submissions made on behalf of the Secretary of State in respect of the individual claims were commendably brief and to the point. They can be conveniently be summarised without elaboration. Thus:
Javed This was a common form Ahmadi claim. If it was wrong to certify any claims from Ahmadis, then it was the case that Pakistan should not have been certified. It is tempting to observe, "precisely so".
Abid Ali It was accepted that the certificate should be quashed because the Special Adjudicator failed to make adequate findings about beatings which occurred while he was in police detention; this concession presumably applies also to treatment while held in prison.
Zulfiquar Ali In the light of the Special Adjudicator's acceptance of ill treatment by the Army, police and MQM-H consisting of breaking his nose and keeping him awake for two to three days at a time and being threatened, the Secretary of State accepted that if Javed's claim succeeded so should this one. The described conduct fell short of torture.
53. In my judgment, the response of the Secretary of State to these individual claims cannot properly be regarded as other than an attempted exercise in damage limitation. In the cases of Javed and Zulfiquar Ali there was, in my judgment the clearest evidence that both had been tortured in the past and if returned to Pakistan would be likely again to be the subject of torture amounting to persecution. So far as Javed was concerned, there was clear evidence of past persecution, in the sense already discussed. Moreover there was abundant evidence that he would be again subjected to persecution if he were to be returned to Pakistan. Accordingly, in my judgment, none of these case should have been certified. On the substantive merits of the individual decisions, it is clear that they would all of them have been difficult to sustain, for the reasons which have been discussed.
54. It is an unavoidable, striking and disturbing aspect of all three cases that the individual decisions of the Special Adjudicators could not stand up to a judicial scrutiny which did not even have to be particularly robust if they were to be quashed. I am left with an uneasy impression that the fact of certification has, in each case, had precisely the effect which the instructions to caseworkers (see above) should have ensured did not take place.
On no account should a caseworker assume that an asylum claim should be refused merely because the applicant is from a designated country.
It is, of course, the fact that had the cases not been certified, appeals would have lain to the Immigration Appeal Tribunal and, or alternatively, judicial review would have ensured that the decisions were struck down on their intrinsic shortcomings. The fact of certification meant that there was no means open to the applicants to challenge unlawful decisions. It is to be hoped that these three cases are not representative of a widespread malaise. They constitute too small a sample to be capable of providing a statistically significant conclusion about the quality of decisions made in the context of certified claims that provide little scope for judicial intervention and the grant of appropriate relief.
55. At the request of the parties, I have not determined what form of relief it would be appropriate to grant. That awaits further submission.
MR JUSTICE TURNER: In this case I have made copies of the draft judgment available to the parties, who have submitted various suggested editorial corrections, some of which I have accepted, some of which I have rejected, some of which I have amended. Judgment is now in its final form and I formally hand it down.
MR DRABBLE QC: My Lord, your Lordship has hopefully got a joint skeleton argument setting out the issues of the claimant and one from the Secretary of State.
MR JUSTICE TURNER: Yes.
MR DRABBLE QC: Your Lordship will be glad to hear that there is a substantial measure of agreement in fact between the parties, as a result of the submission of those documents. My Lord, if your Lordship will look at the claimant's skeleton argument on relief, we invite your Lordship to make the declarations that have been set out in paragraph 1 against the Secretary of State, and I understand that the Secretary of State does not object to those declarations.
MR JUSTICE TURNER: That is preserving his position in regard to appeal.
MR DRABBLE QC: Preserving his position in regard to appeal, but there is no argument whether it is appropriate now to make the declaration, as I understand it, and, secondly, we seek an order quashing the certificate in each case and the dismissals of the asylum appeal in each case. And, again, as I understand it, that is not--
MR JUSTICE TURNER: That would be quashing the determination--
MR DRABBLE QC: Yes, the determination, indeed.
MR JUSTICE TURNER: --I think is the appropriate word. Yes?
MR DRABBLE QC: My Lord, it may be helpful to indicate what the position is between the parties on permission to appeal. My Lord, for the claimant's part we do not seek to oppose permission to appeal, but it is for my learned friend to apply; he will do so in a moment as I understand it. We submit that it would be appropriate to stay all further proceedings if there is to be an appeal, until the determination of that appeal, and after discussion, as I understand it, the Secretary of State is not said to object to that proposition. That, in fact, renders our concern, expressed in paragraph 6 of the skeleton argument, about whether permission should be conditional on payment of our costs, less acute because we anticipate in those circumstances our appeals will not be academic, we can apply to the funding commission in the usually way. My Lord, I think that covers it. We also apply for costs and legal aid assessment.
MR JUSTICE TURNER: Yes.
MR BLAKE QC: My Lord, may I just add to that? I endorse everything that Mr Drabble said but may I say on the title there are two Alis, so I appear for the second and the third, the slip they may not have been corrected.
MR JUSTICE TURNER: I am so sorry--
MR BLAKE QC: In the title of the proceedings there are two Alis and so I appear for the second and the third claimant.
MR JUSTICE TURNER: Yes, there was an error in the facing sheet and that will be corrected.
MR BLAKE QC: My Lord.
MR JUSTICE TURNER: Yes?
MR SALES: As my learned friend Mr Drabble has indicated the Secretary of State agrees with the form of the order that the applicants propose. As to costs, obviously, I cannot resist.
MR JUSTICE TURNER: They follow the event.
MR SALES: Yes.
MR JUSTICE TURNER: And you ask for leave to appeal.
MR SALES: We ask for permission to appeal. Your Lordship, I hope, will have received a skeleton argument.
MR JUSTICE TURNER: I did. It seems to me that this is preeminently a case which should go to appeal. But in saying that, I do not intend to indicate any lack of confidence in the substance of the judgment.
MR SALES: I did not expect your Lordship to do so, but I am grateful for that indication and it may be then that, subject to your Lordship, it is not worthwhile me going through the skeleton.
MR JUSTICE TURNER: I think it is unnecessary.
MR SALES: I am grateful. My Lord, as to the question of in terms for permission, as my learned friend Mr Drabble has again indicated, I think that there was a little bit of confusion between the parties what points we would be seeking to appeal on. We are seeking permission, as we say in the skeleton, simply in relation to the designation order and the certification of these cases, not in relation to the individual determinations.
MR JUSTICE TURNER: Yes.
MR SALES: In terms of the order that your Lordship would make, it would be permission to appeal in respect of the points 1, 2 and 3 but not 4.
MR JUSTICE TURNER: In your skeleton?
MR SALES: No, my Lord, in the applicant's skeleton where they set out leave.
MR JUSTICE TURNER: Yes.
MR SALES: And that being the case the appeals would not be academic so far as the applicant's are concerned because what will be in issue is their appeal rights against any determination of their cases by the Special Adjudicator and I think that matter now having been cleared up, as my learned friend Mr Drabble indicates, they can be confident that they will get legal aid for the appeal and it does not need to be made.
MR JUSTICE TURNER: The other aspect of appeal is that there needs to be finality in this matter at as early a stage as possible.
MR SALES: Yes, and we have indicated in our skeleton that the Secretary of State would agree to address matters as quickly as may be.
MR JUSTICE TURNER: With utmost expedition?
MR SALES: Yes.
MR JUSTICE TURNER: What I am going to ask you to do is, together with Mr Drabble and Mr Blake, to submit a joint minute of the order because it is very difficult for the court official, who may not be familiar with what the case is about, to divine what it is about.
MR SALES: My Lord, we will certainly do that.
MR JUSTICE TURNER: If you could do that by close of business today.
MR SALES: I am sure we will be able to do that. Mr Drabble and I are in another matter later on today, but I would think if it is progressed by others and we can review it.
MR JUSTICE TURNER: Yes, I think it can be progressed by others.
MR SALES: Unless I can assist you further, that is all I had to say.
MR JUSTICE TURNER: Thank you very much.
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