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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gurung v Secretary of State for the Home Department [2004] EWCA Civ 1863 (17 December 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1863.html Cite as: [2004] EWCA Civ 1863

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		17 December 2004

1. LORD JUSTICE SCOTT-BAKER: This appeal is from a decision of the Immigration Appeal Tribunal on 22 April 2004 when they dismissed the appellant's asylum appeal from an adjudicator who had upheld the Secretary of State's decision to refuse the appellant asylum. The appeal is brought following an oral hearing by the permission of Lord Justice Maurice Kay on relatively narrow grounds.
2. The facts are as follows. The appellant is a Nepalese national, aged 39. He arrived in the United Kingdom as a visitor on 12 October 2002. He made a written claim for asylum the following December and then fortified this by claiming in person in January 2003. His wife and child had preceded him to this country by a few months, entering with a visitor's visa. They are dependents in his asylum application.
3. The Secretary of State refused the appellant's asylum claim and he appealed to an adjudicator. The Secretary of State was not represented but the appellant was. The adjudicator accepted the following evidence. The appellant was a policeman in Nepal. His last home was in Kathmandu. His brother was also a policeman, as had been his father before him. Another brother was serving with the Ghurkhas. The appellant had joined the police in 1986 and had risen to the rank of inspector. In Nepal he had been engaged on counter-terrorist duties, concerned particularly with Maoists. He also served abroad in India, Pakistan, Croatia and Kosovo and attended courses in the United States of America and Australia.
4. The counter-terrorism aspect of his work led him into conflict with the Maoists. On 2 September 1999 he led a team of nine detectives to arrest a wanted Maoist. The man turned out to be a member of the Central Committee of the Maoists. Three months later he arrested another member of that committee. This provoked the Maoists to observe him. They made threatening telephone calls to him and threatened death unless he obtained the released of the two men and desisted from further arrests. He reported the threats to his superiors. Two days after that a group of about sixteen Maoists broke into his house, dragged him out and beat and kicked him. Again he was told to release the two men or he would suffer. His wife told the police. They came, and he was taken to hospital and was treated.
5. His superior officer made representations on his behalf and, in consequence, he was posted to another zone. The next night he and his family were flown there. This was all in about December 1999. In his new post he occasionally had to go back to Kathmandu. He did so in July 2000 to observe two Kashmiris. They and a third man were in due course arrested.
6. The appellant heard from the caretaker of his house in Kathmandu that calls had been made there threatening abduction and death to him and his family. In mid-April 2001 the Maoists sent him a letter threatening to kill him very soon. A few days later he was posted to Kosovo. Early in July Maoists stopped his wife and beat her to try and make her disclose his whereabouts. Again they said he was going to be killed. She, too, was sent to Kosovo very shortly afterwards.
7. In April 2002 the appellant and his wife returned to Nepal. They were accommodated in a safe house. The appellant was then sent to the Nepal Gunja Satellite Unit towards the end of May. This was in an out-of-the-way place and was seen as a safe posting. For six weeks or so there were no problems, but in early July the appellant was sent to Lucknow in India to tell the police that two high profile Maoists were living there and, if possible, to obtain their arrests. He was successful. The Indian police handed over the men to the appellant, and the appellant and his party escorted them back to Nepal where they were handed over to the Army which took charge of them.
8. On 8 August 2002 there was a letter from the Maoists stating that they knew of the appellant's part in the arrests and he would very soon be killed. The appellant told his superior who advised him to go abroad for a time as they would not be able to provide effective protection for him and his family in Nepal.
9. The appellant's view, as expressed to the adjudicator, was that the letters were sent with the intention of making him give up his work. He was given a plain clothes escort to the British Embassy where he obtained a visa. He arrived in Britain with leave to enter on 12 October 2002.
10. When he had been in Kosovo earlier he was there as part of the United Nations peacekeeping force. He had spoken to his commanding officer, voicing his worries about returning to Nepal. The commanding officer spoke very highly of the appellant's abilities as a police officer and advised him against leaving the force through fear at that stage and suggested that he should give the new satellite unit a try. If the threats continued he would do what he could to help to resettle the appellant.
11. The appellant came to the United Kingdom on leave, but eventually the position was arrived at where he had overstayed the leave to which he was entitled and he was treated as either dismissed or to have retired from the Nepalese Police Force. Prior to the hearing before the adjudicator - a day or two before - the appellant's solicitors had corresponded with the Nepalese police. There was a reply from the deputy superintendent in charge of the anti-terrorist unit. It was in faltering English and had the following important observations. The writer: "highly suggested [to the appellant] to stay in a safe place," that "the current situation in Nepal is very volatile", that in spite of the cease-fire there was still cross-fire and that it was "neither the practice nor practical to guarantee individual protection at present."
12. The adjudicator had before him substantial country material. From it he gleaned the information that there had been many outrages committed by Maoists, several directed at members of the security forces. The Inspector-General of the para-military police had recently been murdered. His murder preceded a cease-fire. He had also the benefit of a CIPU assessment which stated that policeman who claim to fear retribution from Maoists were seen as a problematic group, whose claims were to be decided according to individual circumstances. The adjudicator directed himself at paragraph 17 of his determination as follows:

"In the asylum appeal, it is for the appellant to raise a case to the standard of a reasonable likelihood that he has a well-founded fear of being persecuted in the event of his return to Nepal for one or more of the five Convention reasons and is unable or, because of that fear, unwilling to avail himself of the protection of his country. Removal will be unlawful under the Human Rights Act if the appellant faces a real risk of being treated so as to infringe his rights under Art. 3 of the ECHR. There is no claim under Art. 8 in this case."

13. In practical terms the Article 3 claim adds absolutely nothing to the asylum claim. That is accepted by Mr Moss for the Secretary of State. There was, among the grounds of appeal, a technical point about the Immigration Appeal Tribunal not having taken on board and, at least technically, considered the Article 3 point. But Mr Moss has pointed out fairly that the Secretary of State would not at any future stage, if this case is remitted, seek to make anything with regard to that. And for present purposes this appeal proceeds on the basis that Article 3 adds nothing in practical terms to the asylum claim.
14. The adjudicator accepted the appellant's account. He said that there remained three live issues: (1) sufficiency of protection for someone in the appellant's position; (2) the significance of his return to Nepal; and (3) the effect of developments since he left Nepal, the cease-fire and his deemed dismissal or retirement from the police which was subsequent to the Secretary of State's refusal of his asylum claim. The adjudicator correctly directed himself that he had to deal with the case on the factual position at the date that he heard the appellant's appeal. He accepted that the appellant left Nepal because he feared persecution and that there was an objective basis for his fears. The critical question before the adjudicator was the position at the time of his consideration in the light of the cease-fire and the appellant's newly acquired civilian status. The adjudicator regarded the cease-fire as too fragile and recent to put any reliance on it, but focussed on the effect of the appellant ceasing to be a police officer.
15. In my judgment, the adjudicator was plainly right to disregard the cease-fire because, in the event, the cease-fire passed into history soon afterwards.
16. The adjudicator concluded his determination in these terms:

"I find that the appellant's genuine fear is not today well-founded because on the country evidence, attacks on specific officers, rather than those on garrisons, are and have been rare. The appellant himself said that he believed that the threats were made against him in order to persuade him to leave the police. That he has now done. Moreover, his own superior, on whose advice he relied, told him to go abroad for a while, not for ever, nor until the Maoists were a spent force. The proper inference to be drawn from these matters is that if he now returns as a civilian after a cooling-off period of eight months or more, he and his family will not be at risk from the Maoists, whether that risk is assessed as a basis for fear under the Refugee Convention or in relation to Art. 3 of the ECHR."

17. It is, in my judgment, very important to bear in mind that the appellant's predicament was not because he was a member of any particular class of individual but because he was an individual who had been singled out by the Maoists because of particular activities with the anti-terrorist department of the police.
18. In the passage of his determination that I have read out the adjudicator goes, in very little detail, into assessing the position in the event of the appellant's return and balancing up the various considerations. In particular, he says nothing about whether he accepts the evidence that appears in the letter from the police headquarters on 24 June written, as it is, in somewhat poor English. The adjudicator does not say whether he accepts the assessment there that the level of threat to the appellant is still very high or, if he does, how that fits in with his finding that the appellant nevertheless has no longer any genuine fear. The adjudicator appears to have placed considerable weight on the appellant's own evidence that he believed that the threat in the letters from the Maoists were made with the express intention of persuading him to leave the police. He does not go on to say whether or not that was, on his finding, the sole intention of those letters and the threats. Nor does he go on to say that there is no fear, once he has left the police, of any retribution for what he has done.
19. More importantly however, in my judgment, the adjudicator makes no assessment of the important question of whether it has come to the notice of the Maoists that the appellant has in fact left the police. Suppose that he returns to Nepal, he will be in civilian clothes just as he was when he was acting for the police in plain clothes when he was previously a member of the force. How are the Maoists to know that he is no longer a member of the force? How are they to know that he is not someone who is acting under cover and endeavouring to provide information for the authorities? The adjudicator does not explore at all this aspect of the case.
20. The appellant appealed to the Immigration Appeal Tribunal on two grounds: (1) that the adjudicator did not give enough weight to the letter in faltering English from the head of the anti-terrorist unit; and (2) that he failed to balance the risk factors, in particular the risk of revenge from the Maoists, and that he would be likely to receive less protection when he was no longer a policeman. Incidentally, the police had been unable to protect him when he was a policeman.
21. As to the first point, the tribunal took the view that the warning from his superior was something that the adjudicator had in mind. He had mentioned it in the course of his determination, and the weight which he attached to it was a matter for the adjudicator. In my judgment, while it is plain that there is reference to this letter from the adjudicator, there is no indication that he took it properly into account in weighing up the exercise of whether it was safe for the appellant to return.
22. As to the second point, the tribunal said that the adjudicator was aware of the revenge factor but could hardly be criticised for accepting the appellant's evidence that the Maoists made their threats in order to persuade him to leave the police and that he had done just that. He was entitled to make the finding that he did, that the appellant was no longer at any real risk because he was no longer a part of the police force.
23. In my judgment, the tribunal was not justified in coming to that conclusion. In my judgment, there are the deficiencies in the adjudicator's reasoning which ought to be remedied by the matter being reconsidered by the Immigration Appeal Tribunal. At the end of its decision at paragraphs 23 and 24 the tribunal said:

"There is no doubt of the dangers faced by members of the security forces in Nepal and by civilians by reason of the Maoist insurgency. However, in order to succeed in a claim for asylum, an applicant must show not only that he has a well-founded fear of persecution for a Convention reason, but that he cannot look to the authorities of his own country for protection. No country, particularly when faced with an insurgency verging on a civil war can guarantee protection. There must be a reasonable willingness by the appropriate authorities to provide protection. The Nepalese authorities are attempting to maintain internal security through the Royal Nepal Army and the National Police Force and the para-military Armed Police Force. If anything, the US State Department Report implicitly criticises the security forces for being over zealous in their attempts to suppress the insurgency. It records that some observers have found the number of prisoners taken under battlefield conditions are low and have concluded that many Maoist fighters have apparently been killed rather than taken prisoner.

It is in this context that the issue of whether the Nepalese authorities are able and willing to provide sufficient protection must be assessed. The Tribunal do not accept that the Nepalese authorities are unwilling to provide protection. They have relocated the appellant on a number of occasions in the past. Now that he is a civilian rather than a police officer, there is no evidential basis for finding that the Appellant would not be able to continue to look to the authorities for protection. However, there can be no guarantee of protection. It is inevitable that those in the security forces facing insurgents are themselves at risk. It does not follow from that risk that there is an entitlement to protection under either the Refugee or Human Rights Convention. There is no reason to believe that the Nepalese authorities would not comply with their obligations under international law to provide adequate protection insofar as they are able to members of their own security forces and also to civilians."

24. In my judgment, those paragraphs do not lie easily with the finding by the adjudicator that when the appellant left Nepal he had a well founded fear of persecution both on a subjective and an objective basis.
25. Mr Moss, for the Secretary of State, answers this point by submitting that the adjudicator was concerned in making a finding only with the time that the appellant left Nepal and that he left it entirely open for the tribunal to make the finding subsequently, as it did, with regard to the situation in the event that the appellant returned.
26. I find it difficult to accept that submission. It seems to me that implicitly the Immigration Appeal Tribunal is expressing unhappiness with the finding of the adjudicator, which was in very clear terms, that the authorities, and in particular the police, were unable to provide a sufficiency of protection - and of course I accept that protection cannot be guaranteed - a significancy of protection for this particular individual, the appellant.
27. Mr Moss continues to submit that it was only ever suggested that the appellant should leave Nepal for what might be described as a cooling-off period and then it would subsequently be safe for him to return.
28. In my judgment, much more care is needed in going into the very precise facts that were before the adjudicator to look and see how they were likely to impact on the appellant in the event of a return to Nepal before it could safely be assumed that he could do so without breach of Convention rights.
29. I have come to the clear conclusion that this appeal should be allowed and that the case should be remitted to be re-heard by a different Immigration Appeal Tribunal when the matters to which I have adverted can be properly considered.
30. LORD JUSTICE JONATHAN PARKER: I agree.
31. LORD JUSTICE WARD: I also agree. The appeal is allowed, and you go back to the tribunal.

Order: Appeal allowed with the costs to be subject to assessment. Matter to be remitted