This is a study of 36 cases documented by the (UK based) Medical Foundation since the publication of the first edition of this report. The subjects are Sikhs of Indian nationality whose applications for refugee status to the Home Office were refused after October 1996, the date of the first edition of this report. All 36 cases were initially rejected by the Home Office. Of these, documentation was available, for analysis, in 17 cases which were appealed to the Immigration Appellate Authority. Only three of these appeals were successful. Documentation was also available for one case which was taken to the Immigration Appeal Tribunal. This case was unsuccessful.

An application for asylum is made either at the port of arrival or at some stage after gaining entry into the UK. Asylum seekers may be given a self-completion questionnaire, and may be subsequently interviewed by an Immigration Officer. The Integrated Casework Directorate of the Home Office then determines the application. Applications are meant to be judged according to the standards laid down by the United Nations Convention Relating to the Status of Refugees 1951 (Articles 1 and 33), and an applicant must show that he - or she - has a well founded fear of persecution for reasons of race, religion, nationality, membership of particular social group or political opinion.

The United Nations High Commissioner for Refugees (UNHCR) recommends that for a fair determination of an asylum claim the following must occur: there is no pre-judgment of the merits of an individual’s case; fair opportunity is given to present the claim (which includes access to legal advice and time to prepare for an oral interview); reasonable opportunity is given to have a negative first decision reviewed on its merits by an independent body; and the standard of proof must be maintained, although the burden of proof rests with the applicant.

The standard of proof used in asylum cases in the UK has always been low, certainly much lower than in criminal cases, where it rests at "beyond reasonable doubt", and lower than the standard of proof in civil cases, which rests at "on a balance of probabilities". The repercussions of an incorrect decision, which could result in a refugee being returned to face persecution, is of such gravity that the standard of proof has always been low. After using the generally accepted test of "a less than even chance" (that persecution would occur on return to the country of origin), the standard of "a reasonable degree of likelihood" was set down in the House of Lords case of Sivakumaran in 1987. In their Lordships’ judgment, this was described as a real risk and a serious possibility. Real, as opposed to unrealistic, and serious, as opposed to trivial.

In criminal cases, the burden of proof rests with the prosecution. In asylum cases, the burden of proof is with the applicant: he or she must prove what he or she asserts to be true. If the burden of proof lay with the Home Office and it had to show that an applicant was not a refugee, the rate of recognition of refugees would be very much higher. This is because it would be necessary only to establish plausibility to found a claim to asylum. Because the burden rests with the applicant, however, the apparently low standard is in fact not easy to meet. Thus the asylum applicant making an allegation of torture in the Punjab, for example, must show to a reasonable degree of likelihood that what he or she says is true. He or she must also show that there is a reasonable degree of likelihood of being persecuted upon return to India.

It can be seen from many of the cases below that the Home Office often questions the credibility of the applicant by offering alternative causes of injury other than torture. In this situation an alternative explanation does not displace the reasonable degree of likelihood that the cause of injury was torture. This many help to explain, however, the high rate of refusal is Sikh cases.

The Home Office issues directions for its staff, instructing them how to deal with asylum applications.1 Instructions are given on how to treat an applicant’s expressed fear of being returned to their home country, and to assess whether this fear amounts to a genuine fear of persecution. As mentioned in the Medical Foundation’s report on Turkey,2 there are several situations, such as unjustifiable attack on life and limb, and torture, which would always amount to persecution. There are also incidents such as arbitrary arrest and detention, which may amount to persecution. The Home Office’s instructions also ask the officer to consider any objective evidence of prejudice to the applicant, as well as taking into account the applicant’s own subjective evidence and opinions.

Home Office refusal letters are supposed to address all the substantive issues of the asylum claim, and should explain to the applicant why their claim does not fulfill the criteria of the 1951 Convention. The refusal letters are also meant to provide an assessment of the human rights situation in India. Staff are instructed to use "standard paragraphs" in their refusal letters, which raises the important issue of whether asylum claims are given fully individual consideration by the Home Office. Unfortunately, it seems apparent that a number of identically dubious assertions were made by the Home Office in a large proportion of the asylum claims in this sample.

The Home Office used several types of assertion when denying asylum claims. The frequency of these assertions illustrates the difficulties facing Sikh asylum seekers arriving in the United Kingdom.

In the refusal letters addressed to the 36 individuals in this sample, the Home Office repeatedly argued that the human rights situation in the Punjab had improved. One of the most common standard paragraphs used by the Home Office in their asylum refusal letters was:

"The Secretary of State has, of course, had his attention drawn to allegations of the abuse of human rights by the police and security forces in India but he does not condone any such violations of human rights and he considers that these actions arose from failures of discipline and supervision, and not from any concerted policy on the part of the Indian authorities.

"Moreover he considers that the breakdown of law and order, of which these violations were a part, resulted directly form the activities of Sikh terrorists and in particular their strategy of intimidation and provocation of members of the security forces.

"He does not accept that they are evidence of persecution, within the terms of the United Nations Convention, against Sikhs generally in the Punjab, nor against supporters of an independent Sikh homeland nor against alleged Sikh terrorists.

"The Secretary of State notes that these violations have not been condoned by the Indian or State Governments and that action has been taken by the authorities against officers suspected of being involved.

"Furthermore, in 1993 the Indian Government established an independent National Human Rights Commission which has a remit to investigate all credible allegations of wrong doing, including those against public servants."

Of the 36 files analyzed in this sample, 30 refusal letters contained these standard paragraphs.

The 1951 UN Convention relating to status of refugees makes it clear that international protection is to be provided not only to those who suffer persecution at the hands of the state, but also those whom the state in unwilling or unable to protect. The Home Office asserts that violations are not condoned by Indian State Governments, but then fails to examine properly the extent to which the state remains unable (perhaps despite its best efforts) to offer effective or sufficient protection. Scrutiny of international human rights instruments reveals that the thrust of human rights protection is now in their delivery, rather in the promise of delivery.3

It is therefore wrong in International Law for the UK Home Office to hide behind the argument that the Indian authorities do not condone torture by police, and that the Indian Government is making its best efforts to control police activity. If the Indian Government cannot deliver protection, and persecution is occurring, then a claim to asylum is well founded under Article 1(A) of the 1951 Convention.

The Home Office clouds the issue by referring to "the activities of Sikh terrorists". The critical factor, however, is the need for sufficient protection from persecution. In that context, how or why the failure of protection arose is immaterial. The argument that the Indian Government is not responsible for the breakdown of law and order is therefore irrelevant. If persecution for a Convention reason occurs, and protection from persecution is not delivered, a claim to asylum is well founded.

The refusal letters depict the scope of the National Human Rights Commission as wider than it is. In fact the Commission is prohibited from investigating abuse by army or paramilitary officers, a restriction criticized by the UN Human Rights Committee recently. Any prosecution of security forces has to be approved by the Government. In addition, the Commission, funded by the Indian government is seriously understaffed.4 Again, all these facts point to a lack of real commitment by the Indian Government to punish and eliminate human rights abuses. Yet the Home Office refusal letters have used selective facts concerning the National Human Rights Commission to point to a different conclusion.

The Home Office maintains that a sufficiency of protection now exists in India. The legal adage "he who asserts must prove" applies, and the burden of proof is reversed. It is therefore not enough for the Home Office to refer to the establishment of human rights checks in India; it must demonstrate that those human rights checks provide sufficient protection from persecution. The Home Office’s own Country Assessment of India, compiled by its Country Information and Policy Unit (CIPU), acknowledges the limits of this system of protection: "Many police officials have not been held accountable for the serious human rights abuses of the early 1990’s, but steps have been taken against some of them."5

Refusal letters for this group of Sikh asylum applicants were written between October 1996 and February 1998. One of the reasons given by the Home Office as to why the applicant’s claimed fear was not well-founded was the improved situation in the Punjab. Version 0.3 of the Home Office’s Country Assessment on India, dated May 1999, makes it clear, however, that human rights abuses continued to be perpetrated in the Punjab between October 1996 and February 1998.

The Country Assessment relies heavily on two reports from the Documentation, Information and Research Branch (DIRB) of the Canadian Immigration and Refugee Board, one dated January 1997 and the other June 1997. These reports, cited at paragraphs 5.3.109.116, contain evidence of continuing torture and other human rights violations in the Punjab at that time. Torture and ill-treatment in custody were said to remain serious problems, not only in the Punjab, but throughout India. It was concluded that the Punjab state government had not been able to bring about a greater improvement in human rights observances.

The CIPU assessment also refers to the views of an academic (May 1997, April and May 1998) to the effect that human rights abuses continue to occur in the Punjab, the police are still out of control in many areas, human rights workers are harassed and the authorities put pressure on individuals to withdraw charges of human rights violations against individuals. This academic author concludes that the current improvement does not represent a durable and fundamental shift in the Indian human rights climate.

The standard paragraphs about the human rights situation in the Punjab contain assertions that are contradicted by information included in the CIPU Country Assessment. It is improbable that the Home Office was unaware of this information at the time of decisions reflected in this sample of refusal letters. Yet the terms in which the letters were written do not reflect the view which the Home Office now thinks appropriate to include in the Country Assessment.

The refusals suggest that the human rights violations arose because of the actions of Sikh terrorists. However, even when the Sikh terrorists were no longer active, torture and ill-treatment in police custody continued.6 The refusals state that the Indian authorities have taken action against police suspected of abuses. But the CIPU Assessment reports the view that the Indian Government is providing senior lawyers to defend those accused and is posting many officer to areas in which they are alleged to have committed abuses.7 These facts cast doubt on how far the Indian Government seriously wishes to end the climate of impunity for Punjabi police, a climate which the Country Assessment reports as being deeply ingrained over many years and which will take a long time to change.

Although the view of the Canadian DIRB referred to in the Country Assessment at 5.3.128-129 was given in January 1999 (and thus unavailable to the Home Office at the time these refusal letters were written), the CIPU Assessment also cites an Amnesty International report of May 1995 that Punjabi police illegally traveled outside their state borders to pursue operations that resulted in serious human rights violations.8 Evidence that this was so should therefore have been available to the Home Office at the time these refusal letters were written.

One can hardly escape the conclusion that a closer reading of their in-house CIPU Assessment would encourage asylum caseworkers to view with greater skepticism the claims of the Indian Government that it provides safety and redress in the Punjab or elsewhere in India to Sikhs who have been tortured.

Another recurring theme in the Home Office refusal letters was to cast doubt upon the credibility of an asylum seeker’s claims of torture. All 36 of the asylum seekers in this Study claimed to have been tortured at the hands of the Indian authorities. In 18 cases, the Home Office responded with a similar statement dismissing these claims of torture:

"Although he would not seek to condone the maltreatment which you claim to have experience at the hands of the police, the Secretary of State has noted that you were released on each occasion without charge and there is no evidence that you would be of any continuing interest to the police if you were now to return to India. However, in the unlikely event that charges have been raised against you in your absence, and should they be pursued on your return to India, the Secretary of State is satisfied that you would receive a fair trail from India’s independent and properly constituted judiciary."

In this case the Home Office applied the wrong standard of proof in asserting that there was "no evidence" of continuing interest because of release in the past. In effect, the Home Office was asking the applicant to know what was in the mind of his persecutors when he was released, and to predict what might be in their minds in the future. The Home Office must look to the objective evidence before them, such as is presented in the CIPU and DIRB reports, to determine whether or not a pattern of release and arrest is persecution.

Furthermore, past persecution, especially in the absence of a change of regime, can be evidence of a real risk of persecution in the future.9

Two applicants were told the following by the Home Office:

"The Secretary of State would not, in any way, wish to condone the treatment you claimed to have received whilst allegedly being held by the police. However, he would expect anyone who had experienced such ill-treatment to have lodged an official complaint with the police directly upon release, in order to give them every opportunity to bring those responsible to justice. In light of the information above, the Secretary of State is unable to attach any credence to this claim."

Furthermore, there is no obligation under the 1951 Convention or the UNHCR Handbook for an individual to place himself at further risk of persecution in order to establish that his fear of persecution is well founded.

The Home Office’s CIPU reports of November 1998 and May 1999 indicate that the vestiges of a climate of impunity still exist for police officers in the Punjab. The failure of the individual to report his torture to the authorities would appear to indicate his mistrust of them, which ought to have strengthened rather than weakened his case.

When the Home Office declined to attach any credence to the claim for asylum because of a single factor (failure to complain), it failed to examine adequately the claim in its entirety. Even if the failure to complain in India was a cogent reason for disputing the well-foundedness of the claim to asylum, it may not have outweighed other factors. Each strand of a claim to asylum must be assessed individually on its merits and only then weighed in the totality of the claim. Disbelief of one strand of a claim to asylum cannot influence, of itself, the assessment of another strand of the claim. In the example above, the attachment of "any credence to this claim" cannot be correct. That the applicant had not reported his torture cannot imply that the torture had not taken place.

The issue of torture can be of some importance to the legal status of the asylum seeker. The Asylum and Immigration Act 1996 curtailed the rights of appeal introduced in the Asylum and Immigration Appeals Act 1993. The Secretary of State can now certify certain asylum applications, thereby removing the right to apply for leave to appeal to the Immigration Appeal Tribunal, in particular specified circumstances. In a certified case the only recourse against the adjudicator’s decision is by way of judicial review in the High Court.

Among the categories of certified cases was the so-called "White List" of seven designated countries, including India, where there was a presumption that persecution did not occur, notwithstanding evidence presented to Parliament concerning human rights abuses in the Punjab. However, applications where assertions of torture were made were exempt from certification, following a late amendment to the 1996 Act.

Therefore, in all cases where Sikh applicants recounted episodes of detention and torture, their applications should not have been certified. In fact, 25 of the 36 sample cases were certified, despite testimony of torture in each case.

The majority of Home Office decisions in the sample were reached without access to a medical report. Nevertheless, there are still several examples in this study of the Home Office disregarding expert medical testimony from the Medical Foundation, for example:

"The Secretary of State has also considered the Medical Foundation Report you have submitted which was completed on 19 April 1997, following your examination by Dr. Forrest on 18 April 1997. The Secretary of State noted, however, that many of the scars found on the examination were described as ‘not specific’. Furthermore, he also noted that the medical opinion given was based entirely on your explanation for the cause of these scars. The Secretary of State took the view that you have provided no independent corroborating evidence to prove that these injuries were sustained during your alleged detention."

When a doctor states that "this is the history as recounted to me", it implies more than a mere acceptance of the story. A doctor is trained to take a case history at the same time as observing injury, the demeanour, affect and overall presentation of the patient. Doctors are thus skilled in using both their eyes and ears while listening to the patient’s own story.

It is difficult to imagine how this asylum seeker could possibly corroborate his story of torture independently, other than seeking an expert medical opinion. The Home Office did not provide a contradictory expert opinion of its own when it made this assertion, even though the medical report in question was strongly supportive of the claim of torture:

"This previously healthy and athletic young man has many signs of severe injury. His explanation of their causes is completely consistent with their nature. Particularly significant are the scars from electric wires and the pain in the neck, back and knees. These are quite characteristic of the late result of the well-documented types of treatment administered by the Indian police and would be most unlikely to be seen in an otherwise fit young man. They are not sports injuries nor due to any known rheumatic or neurological disease.

"He is clearly suffering from severe psychological distress and the nature of his nightmares points to at least some of its origin in ill-treatment under police detention.

"I consider that there is strong medical evidence of his having suffered in the way he describes." (Dr Duncan Forrest Report dtd. 19.4.97]

The special adjudicator took an opposing view to the Home Office, and found the asylum seeker "to be entirely credible", and that his accounts of his experiences were "not only consistent but also extremely detailed". Of the medical report, she found that it was "extremely supportive of the appellant’s claims about ill treatment and I therefore feel bound to give it a good deal of weight in my considerations..." (MF 11381) The appeal in this case was allowed. (For further deals, see Case 1 in the Appendix.)

As explained in the previous chapter, there are limits to what the medical evidence can provide in supporting a claim of torture. However, it is clear that in some cases in this sample, the Home Office dismissed medical evidence that satisfied the appropriate standard of proof to a claim of torture.

A major issue was made of the nature of the asylum seeker’s passport, and the way they had departed the country. In 13 cases out of the 36 in this sample, a negative finding regarding credibility was made on this tenuous basis, such as in the following case:

"The Secretary of State has also had regard to the fact that you have admitted having at one time held a passport issued in your own identity by the Indian authorities which, notwithstanding the assistance you claimed to have received from an agent, was used to facilitate your departure from India. He notes too that you were able to leave the country without apparent difficulty, which suggests to the Secretary of State that the authorities have no interest in you."

This argument ignores the ample evidence of local corruption and the reasonable likelihood that an agent could arrange for a smooth exit from the country, through payment of a bribe or by some other means of influence. It also ignores the very nature of the extra-judicial threat: the people whose cases are presented in this study are fleeing from torture in the Punjab. The Home Office’s own India Country Assessment cites the Canadian DIRB’s finding that Punjabi police can and do act outside the law in pursuing suspects, both inside and outside the state.10 In this situation, it may well be the case that the Punjabi police would purposely avoid informing the national authorities of their interest, or placing a suspect on a national wanted list.

In two cases the Home Office took exactly the opposite stance, condemning the credibility of two men in part because they departed India on an illegal passport:

"The Secretary of State has also taken into account your previous immigration history. He has had regard to the fact that you have admitted having at one time applied for and legally obtained a passport issued in your own identity. He notes too that you were able to leave the country without apparent difficulty, albeit with a passport in another identity but which contained your own photograph. This suggests to the Secretary of State that neither the police or the authorities have any interest in you."

It is possible to argue in this case that a contrary explanation could be given for this applicant’s actions. It is quite plausible that the precautions he took to use a passport in an identity other than his own were consistent with the actions of someone who feared the attentions of the authorities. In any case, it is difficult to see how his actions could in any way be taken to suggest "that neither the police or the authorities have any interest in you". Dissidents are rarely given documents by their own authorities, yet a ‘Catch. 22’ situation arises: if an applicant owned and used his own passport, the Home Office deduced that the applicant was of no interest to those authorities; but if the applicant used a passport in another name, the Home Office likewise deduced that the applicant was of no interest to the authorities.

"In considering your application, the Secretary of State has taken into account your alleged movements upon leaving Delhi, on 1 April 1994. In doing so, he has noted your claim to have traveled by air, to Moscow using a passport to which you were not entitled... In all the circumstances, the Secretary of State does not consider these to be the actions of a person genuinely fleeing his country in fear of his life and in need of protection. He considers, therefore, that your application significantly lacks credibility as a whole."

Asylum seekers are also routinely subjected to inferences regarding the length of time to took them to depart India. If an applicant was deemed to have waited too long before fleeing India, the Home Office deduced that there could be no causal link between their torture and their departure from the country. In 21 cases in this sample, this was then used to cast doubt on their credibility:

"The Secretary of State also noted that your last arrest took place in May 1996 yet you did not leave India until 5 months later, which suggests to the Secretary of State that your last arrest was not instrumental in precipitating your eventual departure from India..."

The longest time between the final arrest and eventual departure from India was 11 years (MF 9441). The shortest period mentioned in this sample of cases between arrest and departure was only 3 months (MF 12512). There appears to be little agreement between Home Office staff themselves as to what minimum length of time constitutes an unreasonable delay in departure.

There are often compelling economic reasons which can explain delays in leaving India. The cost of reaching a safe country can be extremely expensive, especially when using the services of an agent. Land or other holdings may have to be sold, so gathering enough money to depart can take some time.

The Home Office cast doubt upon the credibility of the majority of cases in this sample, even when their assertions would appear to defy logic:

"The Secretary of State has also had regard to the fact that, by your own account, you remained in India, for some 7 months, after your alleged arrest, albeit in hiding, without any apparent difficulty."

In the remaining 15 cases, no such inferences were drawn, although in many there were similar delays.

The Home Office places weight on the asylum seeker’s first point of arrival after departing India. Those who passed through other countries without claiming asylum, before arriving in the UK, were judged to be lacking in credibility:

"Finally, the Secretary of State considers the fact that you did not claim asylum in the first country you reached is inconsistent with the actions of someone fleeing his country in fear of his life, and this further undermines the credibility of your asylum claim."

"The Secretary of State notes that you traveled from India to Ukraine by air, and then traveled overland to the United Kingdom concealed in a lorry. He is of the opinion that a genuine refugee, fleeing persecution, would claim asylum at the first available opportunity in order to establish a right of abode, and the fact that you did not apply for asylum in any of the European Countries through which you must have passed (many of which are signatories to the 1951 UN Convention) casts doubt upon your claims to fear persecution."

This is to misunderstand the nature of the journey by lorry undertaken by many applicants from the subcontinent. The applicants cannot and do not leave the lorries in which they travel. They rarely know the exact details of their journey, which may cross several European borders.

The Home Office also ignores the historical, cultural and linguistic links between India and the UK. Many Sikh applicants speak English, many have family and friends in the UK, and some may have visited the UK in the past for family weddings or other celebrations. Furthermore, the UK enjoys the largest Sikh population outside India.

In the latter case the Immigration Appeal Tribunal did not agree with the Home Office’s assessment of credibility, and allowed the appeal. In spite of such precedents, the Home Office used this justification in 17 cases from this study.

It is clear from this examination of Home Office refusal letters that many applicants are being denied asylum in the UK on weak, illogical or incorrect grounds. In the next section, it will be seen how the next stage of the asylum process, the appeal to an adjudicator, can be heavily influenced by the Home Office’s original findings.

After the Home Office has rejected the initial application for asylum, the next step is to appeal to the Immigration Appeals Authority (IAA). As well as considering the appeal, the adjudicator must rule on the suitability of any certificate, which may have been placed on the application by the Home Office. In cases where the application remains certified, this is the only appeal that can be mounted in front of the IAA.

A special adjudicator hears the appeal. The adjudicator is usually a qualified barrister or solicitor, who has practiced for at least 10 years. They receive limited training in asylum matters from the Office of the United Nations High Commissioner for Refugees, and most sit as special adjudicators on a casual basis.

The Home Office is represented by a presenting officer at the appeal, although in one case in this sample, the Home Office was not represented (MF 12020).

There is no legal aid available for representation at appeal, although several agencies offer free representation, such as Asylum Aid, the Free Representation Unit, the Immigration Advisory Service and the Refugee Legal Centre.

It would seem, from this study, that adjudicators rarely overturn a refusal by the Home Office. There are 17 cases from this sample where the adjudicator’s determination was available for analysis. Of these, only three appeals were successful.

The nature of the determinations appears to be strongly influenced by the arguments presented in the original Home Office refusal letter. Many adjudicators seemed content to consider each of those arguments, and rule on whether they were justified. Unfortunately, the same logic seemed to be used to assess these arguments, and many were endorsed in spite of their dubious nature.

In the following case (MF 11611), for example, the adjudicator merely reconsidered each of the Home Office’s reasons for refusal:

"Even if I accept that the appellant [the asylum seeker] was detained by police, it is argued on behalf of the respondent [the Home Office] that, if the appellant really feared ill-treatment, he would not have remained in India, living in Delhi and Bombay, from the middle of 1995 until he left India sometime during the second half of 1996. The explanation put forward on behalf of the appellant for the delay in leaving India after his release is that the appellant put himself in the hands of the Temple Committee [the claimant was a Sikh priest] and that it may have taken some time to raise the funds for him to leave...I have, therefore, to make the difficult judgment as to why the appellant should have delayed in leaving India if he had been treated as severely by the police as he claims...It seems most likely that the appellant did not leave India following his claimed release from custody in 1995 because there was no likelihood at that time that he would be taken back into police custody."

The adjudicator applied the wrong standard of proof to this case. He found that "it seems most likely.....there was no likelihood....that he would be taken into police custody". The adjudicator failed to ask himself the proper question, namely, whether there was a reasonable degree of likelihood that the applicant would be taken back into police custody. He failed to consider the explanation given by the applicant as to why he did not flee into exile earlier. Despite the plausibility of the applicant’s claim, he merely interpreted the actions of the applicant by supplying his own hypothesis, which was not supported by the evidence.

"Even allowing for the appellant’s ignorance of the possibility of claiming asylum in Greece, it is relevant to enquire why the Temple Committee who had paid for the appellant to leave India, the agent who traveled with him and, indeed, his lawyer in Phagwara could not have advised the appellant of the possibility of claiming asylum in Greece. I do therefore regard the delay in Greece as damaging to the appellant’s claim to have fled from India to seek protection."

"I accept that there can be no justification for this treatment of the appellant in the way which seems probable from the Medical Foundation report but the remedy which presents itself is in the appellant’s own country, through the National Human Rights Commission and its offices in the Punjab, and not flight to claim asylum in the United Kingdom."

"I am bound to conclude that, with the political changes and the rise of interest in human rights in India, there is no reasonable likelihood that the appellant would be of interest to the police or needs to fear mistreatment by the police if he returns to India now."

As has been shown, strong arguments can be made against each one of the assertions made above, though in this case the adjudicator simply endorsed them, and dismissed the appeal. Lawyers for the appellant applied for leave to appeal this decision to the tribunal, on the grounds that the adjudicator.

"...had merely been content to narrate the decision of the respondent [the Home Office] and say that in his opinion that decision was justified. This is an error of law, as the Adjudicator as an appellate body is obliged to address its mind to the inferences and conclusion made by the respondent; the grounds of appeal submitted and all documentary evidence submitted in support of the appellant’s appeal."

Leave to appeal this decision was denied by the Immigration Appeal Tribunal, on the grounds that although the adjudicator accepted that the applicant had been tortured, he did not accept that this was by the police, nor that the police had a continuing interest in the applicant.

The adjudicator and the Tribunal applied the wrong standard of proof. The law does not require the examining doctor to have been present at the time the injuries were sustained and to have witnessed their occurrence. It requires him to have found, only to a reasonable degree of likelihood, that the injuries were sustained in a manner that is consistent with the applicant’s testimony.

It is also highly dubious to assume that an agent, a local Temple Committee, or indeed a lawyer in Phagwara, assisting an applicant fleeing into exile would take into consideration the concept of "first country of asylum". Indeed, it can be argued that no such concept exists in International Law and that the Dublin Convention is no more than a multi-lateral agreement among states, designed for state burden-sharing. Its relevance is therefore to state parties and not to individuals seeking asylum.

Of the 17 cases in this sample where an adjudicator’s determination was available for analysis, a medical report was submitted at appeal in 12.

In two cases an application was made for an adjournment so that a medical report could be prepared. In both cases this request was denied, and the appeals were dismissed. When medical reports were later prepared, the examining doctor concluded in both cases that torture had occurred:

"This man gives a consistent account of torture...He has a number of scars, the most striking being the two involving being burnt with an iron. Also the tearing of the tendons at his knee fits his description of simultaneous forced bilateral abduction at the hips, which is commonly seen in those tortured in the Punjab. I am therefore convinced of this man’s account of torture." [Dr John Joyce: Report dated 21.10.97]

"The man gives a consistent account of his ill-treatment and has scars consistent with this account. He also has significant neurological damage to his right arm which is accounted for his repeated hangings. It is difficult to see how this could otherwise be caused in a young man with no other significant cause... I do not therefore doubt this man’s account of torture." [Dr John Joyce: Report dtd. 20.1.98]

Both of these applications were also certified by the Home Office and were not allowed to proceed beyond this adjudicator stage. In both cases, the applicants’ made specific reference in their Home Office interviews to being tortured. This evidence should have precluded their cases from being certified, because of the concession in section 5(5) of the 1996 Act.

Several special adjudicators took issue with the findings of the medical report. One adjudicator, Mr. A. R. Lawrence, said:

"I have also considered the medical report to which my attention was drawn by Mr. Palmer. This medical report, in my view, is valueless. It states the appellant was detained at the end of February 1995 and that he was seriously tortured. However the appellant makes no mention of any arrest or torture in his SCQ [self-completion questionnaire] or at his interview... The medical report, in my view, merely goes to demonstrate that there is no merit whatsoever in this appellant’s claim and that it totally lacks credibility."

This was despite a clear conclusion by the examining doctor:

"Mr. Singh gives careful information concerning what was clearly a savage beating followed by an unusual and brutal torture on his right leg. The dramatic scars on his right knee which have nothing to do with his previous polio support his other statement. Other scars on his lower limbs are in keeping with his statements of torture and beatings." [Dr Alec Frank: Report dtd. 11.11.97]

In another case the adjudicator accepted the medical evidence of torture, but then raised doubts as to the origin of the torture:

"It therefore seems reasonably likely that the appellant did suffer a beating in 1995 as he has claimed, but I am not satisfied that it is credible, even to the lower standard required in this appeal, that the ill-treatment was by police, or that there is any police interest in the appellant."

The injuries were examined and documented by an expert in whose opinion the applicant had been tortured in the way he described. The Home Office did not seek an expert opinion on the applicant’s injuries, and the adjudicator did not request a further opinion. The adjudicator has again applied the wrong standard of proof. The law does not require the examining doctor to have been present at the time the injuries were sustained and to have witnessed their occurrence. It requires him to have found, to a reasonable degree of likelihood, that the injuries were caused in the manner alleged by the applicant.

If an account of torture is implausible, and the injury found by the examining doctor is not consistent with the applicant’s testimony, a medical report will not be prepared by a Medical Foundation doctor. When preparing a report, Medical Foundation doctors take into account the Medical Foundation’s extensive knowledge of the various methods of torture applied in the Punjab. A Medical Foundation medical report therefore corroborates an already plausible account of how the injuries were sustained.

A Medical Foundation medical report can only examine and document injury; it cannot and does not address the asylum claim as a whole. However, where the Home Office or adjudicators dismiss a claim for reasons other than medical ones, they must give due weight to the medical evidence. If their doubts about other aspects of the claim leave them to doubt the medical evidence, then they must seek to rebut the medical evidence with evidence of a similar expertise. It is inappropriate to dismiss expert medical evidence even though other strands of the claim to asylum may present apparent discrepancies.

Medical evidence alone can rarely prove conclusively that torture has taken place. It can only corroborate the asylum seeker’s own story. Nonetheless, analysis of this sample suggests that both the Home Office and the adjudicators of the Immigration Appellate Authority frequently cast doubt upon firsthand testimony, backed by an expert medical opinion, often with insufficient justification to outweigh a finding in favour of the appellant and without the existence of any expert evidence to the contrary.

One of the most frequent reasons for denying an appeal was the argument for the possibility of internal flight. The Home Office believes that a Sikh forced to flee from his home can live safely elsewhere in India, even if he has been tortured by the Punjabi police and may still be wanted in the Punjab.

This is contrary to the beliefs of organisations such as Amnesty International, whom the Home Office themselves quote in the CIPU India Country Assessment:

"...Punjab police illegally transgressed their operational jurisdiction, traveling to other Indian states to carry out under cover operations which resulted in serious human rights violations."11

In many cases the adjudicator denied an appeal purely on the internal flight argument, even if torture and persecution had been substantiated:

"On the appropriate standard of proof I am satisfied that the appellant has a well founded fear of persecution in the Punjab for his perceived political opinion. Having been arrested, tortured, tried and imprisoned for a political offense he is more likely to be re-arrested and to suffer ill-treatment at the hands of the police of that state who are not under the effective control of central government in so far as the treatment of those who are perceived as militants or activists are concerned.

"I therefore have to determine the question of the internal flight alternative as considered by the Court of Appeal in Robinson. From the background documents I find that India is a democratic country with a central government that is committed to the protection of the human rights of its citizens and although this aim is not fully achieved, the National Human Rights Commission plays an active, if advisory, role in seeking to implement this policy. There are substantial Sikh communities in New Delhi, Calcutta and Bombay where the appellant would not be at risk of persecution for a Convention reason, and where it would not be unreasonable to expect him to relocate. As an Indian citizen he enjoys freedom of movement throughout the country, with the exception of certain north eastern states, and as a single man of 30 fit and experienced in farming and catering he should experience no difficulty in settling outside the Punjab. Accordingly he is not a refugee in need of international protection and his appeal is dismissed."

In the single case in which a judgment was available for analysis, the Immigration Appeal Tribunal followed the above adjudicators and dismissed the case, based on the availability of internal flight within India.

In two out of the three successful appeals in the sample, however, the adjudicators explicitly agreed that the reach of the Punjabi police could extend far beyond the state’s borders. For example, adjudicator Mr. M. Neuberger said:

"I also accept that the internal flight alternative is not available to the Appellant as his return to India, even if he were to live outside the Punjab, would almost definitely come to the notice of the Punjabi police who are able to operate outside their own State as mentioned in reports lodged by the Appellant’s representatives. Accordingly for these reasons, I allow this appeal."

The third successful appeal was allowed on several grounds, including one which amplified the concerns of the above adjudicators in considering the alternative flight argument. The adjudicator in the case found that the concern for the safety of the asylum seeker needed to start from the moment that they might be returned to India:

"I find that if this appellant were now to be returned to India, given that he arrived in an assumed identity, he would be screened, and it is reasonably likely that this screening process will result in checks with the local Punjabi police authorities who, having relatively recently detained him, may well identify the appellant as someone in whom they have an adverse interest. If this should happen it is in my view a serious possibility that the appellant would again be detained and mistreated."

"In my view the actions of the police on this occasion are rather reflective not of individual or groups of policemen acting in abuse of their powers, but, unfortunately represent, despite the Indian Government’s endeavours, general responses of police to those detained by them."

"...In addition while I recognize that SSF [Sikh Student Federation] is not a banned organization in India, I take on board Mr. Bild’s references in the latest 1999 Human Rights Watch Report about fears, following BJP’s election successes, of the rise of Indian nationalism and the likely effect this may have in relation to any peace initiatives that may hitherto have been showing signs of success in the Punjabi areas."

It is apparent from this study that a prevailing climate of disbelief exists among UK authorities towards Sikh asylum applicants. Many Sikhs in this sample clearly demonstrated they had a claim that fulfilled the 1951 Convention.

It was shown that the Home Office did not perform an independent assessment of these asylum claims, and thus did not comply with UNHCR recommendations in this area. Refusal letters were not written individually, but were assembled from a range of cover-all standard paragraphs, which did not necessarily reflect the distinctive circumstances of each case. Much was made of the fact that the general situation in the Punjab had improved, yet isolated but compelling evidence of continued human rights abuses by the Indian authorities were routinely ignored when assessing asylum claims. Claims of torture were largely disregarded by the Home Office, often in the context of an overall negative finding about the applicant’s credibility. It was also illustrated how credibility was regularly dismissed on a number of spurious grounds.

Adjudicators of the Immigration Appellate Authority also seemed unwilling to judge Sikh asylum claims on their merits, instead often relying on the Home Office’s own arguments in their determinations. It was clear that adjudicators rarely overturned a decision by the Home Office (only three of 17 in this sample), reinforcing the need for the Home Office to make a fair appraisal of the claim in its original decision.

Expert medical evidence was directly challenged, or diluted in weight by attributing evidence to possible causes other than torture by the authorities without expert testimony being offered to explain any opposing conclusion about how particular sequelae were received. (See case no. MF 11381 cited above under "Medical evidence" and as case no. 1 in the Appendix.)

The issue of incorrect certification is also of major concern, as it denies an asylum seeker the right to appeal a decision by the adjudicator. A large majority of cases were certified (25 of 36 in this sample), in contravention of section 5(5) of the 1996 Act, in spite of the fact that allegations of torture were made in each of those cases.