Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01654/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 11 February 2016
On 12 August 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Beeberg Gichki
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr O'Ryan, instructed by Rochdale Law Centre
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Beeberg Gichki, was born on 24 August 1992 and is a male citizen of Pakistan. He had appealed against the decision of the respondent dated 16 January 2015 to refuse to grant him asylum and to give directions for his removal from the United Kingdom. The First-tier Tribunal (Judge Siddiqi) in a decision promulgated on 22 May 2015 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. At the hearing at Manchester on 11 February 2016, both parties before me agreed that the judge had erred in law such that his decision fell to be set aside. I directed that the decision should be remade in the Upper Tribunal. Mr McVeety, for the respondent, requested further time in order to make submissions and so I further directed that both parties should file and serve written submissions and gave a timetable for that process. Mr McVeety filed and served his written submissions by 19 February 2016 as directed but, as a result of the administrative problem, Mr O'Ryan filed and served his written submissions at a later date. Notwithstanding the delay, I am grateful to both parties for their helpful submissions. Since I had these in electronic and written form, it seems to me appropriate that I should set out the submissions in full in this decision rather than seek to summarise them.
3. Mr McVeety's submissions were as follows:
The Respondent continues to rely on the Reasons for Refusal letter dated 16/01/2015.
The Respondent submits that in respect of the alleged recent attack on the Appellant's brother, the Appellant has not provided a credible account. The Respondent notes that prior to this incident there had been no attacks on the Appellant's family since 2011. The Respondent submits that it is not credible that if the family were of such a high political profile, that it would be over 4 years since they were last attacked, and particularly since it would appear from the nature of the attack that those seeking to harm the Appellant are aware of where he and his family are located.
The Respondent further submits that the account given of how the Appellant's brother was attacked is also not credible. It is noted that the Appellant's brother appears to have been attacked in a very public place, seemingly with many witnesses, and in a manner that very much left to chance whether or not his brother would actually be killed. The Respondent submits that this public attack does not sit with the Appellant's explanation as to why, if the Security Services wanted the Appellant and his family dead, they did not just attack his home, which the Appellant explained was due to them not wanting to create a "scene".
The Respondent submits that if the Tribunal does accept that the Appellant's account has been entirely credible, and that he does face a genuine risk in his home area, that the Appellant would be able to relocate away from Baluchistan. The Respondent submits that it is pure speculation on behalf of the Appellant that those seeking to harm the Appellant and his family are directly involved and connected to the Intelligence and Security services in Pakistan. The Respondent submits that the evidence would suggest otherwise, due to the random nature of the attacks and the fact that no attacks occurred over a number of years, when there was no indication from the Appellant that his family had ceased political activity. The Respondent submits that it is evident the Security Services know the location of the Appellant's family and yet at no time have they sought to attack the Appellant's family home where seemingly most of his family still live.
The Respondent notes that following the alleged attack on the Appellant's brother, he was taken to Karachi where he was clearly given exceptional levels of care by the medical services, if the account of the extent of the injuries suffered by him is to be believed. There was evidently no attempt against the Appellant's brother whilst he remained in Karachi, which the Respondent submits is clearly not consistent with a threat to the Appellant from the Intelligence and Security Services.
In respect of the Appellant's membership of a student organisation called AZAD, the Respondent questions whether the Appellant still maintains membership of this organisation, as he is evidently no longer a student. The Respondent notes that the Appellant was at best a very low level member of the organisation, and that despite the authorities now banning the party, he was able to attend at least 6 protests, during and after which he encountered no problems from the authorities. The Respondent submits the fact that the Government has banned a party clearly demonstrates they have must have been monitoring its activities, and yet the Appellant, who appears to be from a high profile political family, suffered no consequences as a result of his membership. The Respondent submits this is another clear indication that the alleged threat to the Appellant does not come from the Government or from any national Security or Intelligence Agency.
The Respondent relies on paragraphs 40-49 of the Reasons for Refusal Letter in respect of UK based political activities and in respect of the availability and reasonableness of internal relocation in Pakistan.
In terms of any alleged political activities on return the Respondent relies on the unchallenged findings of FTTJ Siddiqi at paragraphs 42 and 43 of the determination that demonstrate the Appellant's "political zeal" is not as strong as the Appellant has claimed.
4. Mr O'Ryan supplied a chronology and written submissions. His written submissions were as follows:
The Appellant avers that the second, third and fourth grounds of appeal are interlinked - the assessment of risk of harm was flawed due to the FTT's failure to perform that task having due consideration to country information relating to (ii) risk to Baluchi nationalists, and BSO-Azad members in particular, and (iii) to risk to such persons outside Baluchistan, and (iv) having failed to give adequate reasons for finding no political motive for the killings of the Appellant's family members.
18 The Appellant avers that the findings set out at para 6(i)-(vi) above should be retained. However, in light of the accepted errors in the FTT decision, including its failure to make a finding as to whether the Appellant's brother had been shot in April 2015, the Appellant avers that the following findings as summarised at para 6 above need to be set aside and re-made:
(viii) the Appellant had not established that there had been any change in the level of risk faced by his family in Karachi since the Appellant came to the UK [33];
(ix) whilst the documents that the Appellant relied on supported his claim that members of his family were killed, they did not directly support his claim that they were killed for political reasons [39];
(x) the Appellant speculates that the deaths of his grandfather's brother, and his grandfather, occurred at the behest of the police or ISI; the Appellant had not established, even on the lower standard, that these deaths were linked to the authorities [39];
(xii) although the Appellant and his brother were shot at in 2011, the Judge was not persuaded that this could be attributed to the Pakistani authorities [41(b)];
(xv) the Appellant would not be at risk (impliedly, by reason of his association with his family) in Karachi [44].
Reason for attacks
19 The Appellant avers that there is a reasonable degree of likelihood that the killings of his relatives were committed for political reasons, for the following reasons:
(i) the roles/positions of the persons killed, and the Appellant's relationship to them, is no longer disputed: (referring here to the dramatis personae):
E Aslam Jahn Gichki Maternal Grandfather's brother
'Noted Baloch leader' (AB1 page 55)
Killed 9.6.02: SEF q 82; WS1 para 11-12; AB1 [55]
F Hassan Gichki A's maternal uncle
An activist of Baluchistan National Party and close relative of Akhtar Mengal (see press at AB1 50)
Killed in prison 26.1.06: SEF q 92; WS1 para 13-14; autopsy report AB1 [36-39]; Article in 'Dawn' 15.5.06 AB1 [50-52]; AB1 [53]; AB1 [70]
G 'Sardar' (an honorary title) Nadir Jan Gichki A's maternal Grandfather
The 'Sardar' of Tump, and related to the Mengal family (see press at AB1 page 54)
His house raided by Frontier Corps and intelligence members in Feb 2010; - 'looking for insurgents': - A's WS1 para 15; killed 18.8.10: SEF q 100; WS1 para 18; AB1 [54]; AB2 [6]
H Murad Gichki Cousin of C
Son of Ayub Gichki, BNP Central Committee member; cousin of Akhtar Mengal (see press at AB1 page 51-53)
Killed 1.12.10: SEF q 106; WS1 para 20; AB1 [53]
I Zubari Gichki Cousin of C
Son of Ayub Gichki, BNP Central Committee member; cousin of Akhtar Mengal (see press at AB1 page 51-53)
Killed 1.12.10: SEF q 106; WS1 para 20; AB1[53]
J Naseer Gichki A's 2nd Cousin
A member of BSO Azad and part of its Central Committee. Lives in Tump. Ambushed and shot at in Feb 2010 - same day that Appellant's grandfather's house was raided : WS1 para 16
(ii) attacks upon this number of persons all related to the Appellant are, as a matter of probability, extremely unlikely to be for any explicable reason, other than their involvement in pro-Baluchi politics/being related to persons involved in such matters;
(iii) no other explanation is indicated anywhere in the Appellant's evidence for the attacks upon such persons, other than their political positions, and the Respondent does not advance any other plausible explanation for such attacks;
(iv) press reports attribute political motive to the killings; and the fact that a press report discloses a political stance (eg the reference in Examiner.com to 'Pakistan's sleazy interior minister' at AB1 page 51) does not establish, without more, that the information contained within a report is unreliable; British press has historically been strongly politically partisan .
Recent attack
20 The Appellant avers that the account of his brother being shot in April 2015 is credible. The attacks and deaths of the members of the Appellant's family have taken place over a number of years; the fact that there had not been a direct attack on the Appellant or his family between 2011 and 2015 is not determinative of the credibility of the Appellant's account; the country information, set out in detail below, establishes that the Pakistan government is involved in a very long term campaign against actual or perceived Baloch students and activists. The Appellant's account, given in his second witness statement and in oral evidence is clear, and not implausible.
21 Contrary to the written submission of the Respondent, there was no long sojourn in Karachi whilst receiving 'exceptional levels of care' for his wounds - the Appellant's witness statement stated that his brother was treated and discharged on the same day, with his foot in plaster, and the injury to his chest being a light flesh would only.
22 The Respondent's assertion that it is not plausible that assailants would have launched an attack on the Appellant's brother in a public place, is simply not made out on the evidence - see reference at eg [75] to abductions regularly being carried out in broad daylight with multiple witnesses. Further, if, as seems to be the case, assailants of Baluchi activists care not whether their actions are witnessed, then logic would suggest that it is easier to shoot someone in the street than trying to enter a persons's house to do so, contrary to the Respondent's submission.
23 Further, the continued interest in the Appellant's family is explained by their status as well known campaigners for Baluchi rights, and the deterioration in the country conditions in or around 2014 - referred to below.
Future risk
24 The Appellant relies on the following evidence in support of the proposition that as a family member of his wider family network, and/or himself being a member and supporter of BSO Azad, there would remain a real risk of serious harm to him in Pakistan, whether in Baluchistan, or Karachi, or indeed elsewhere, such evidence not having been taken adequately into account by the FTT:
(i) General human rights situation/dangers for pro-Baluchi sympathisers and campaigners, BSO Azad members/supporters in particular (Ground 2)
(a) Respondent's refusal letter paras 13-31;
(b) Appellant's bundle AB1 pages: (and NB page [266] in particular):
[75] "These cases show that Pakistan's security forces, particularly its intelligence agencies, targeted for enforced disappearance ethnic Baloch suspected of involvement in the Baloch nationalist movement"
[75] "The victims of enforced disappearances in the cases documented were predominantly men in their mid 20s to mid 40s. Three of the disappeared were children, the youngest of whom was 12 years old at the time of the abduction. In three cases, the victims were over 60 years old. Most victims appear to have been targeted because of alleged participation in Baloch nationalist parties and movements, including the Baloch Republican Party (BRP), Baloch National Front (BNF), Baloch National Movement (BNM) and Baluchistan National Party (BNP), as well as the Baloch Student Organization (Azad) (BSO Azad)."
[77] "In seven cases documented by Human Rights Watch, Pakistani authorities attempted to legitimize disappearances by bringing criminal charges against the missing persons. In some cases, the detainees were then transferred into police custody and brought to trial." (and see the relevance of that evidence in relation to Appellant's uncle Hassan Gichki, killed in detention in 'trumped up' drugs charges).
[96] "The security forces have also targeted students involved in political activities, particularly members of the Baloch Student Organisation Azad (BSO Azad). Many of the student leaders and their supporters have been arrested at university campuses and subsequently disappeared."
[96] "From information provided by released detainees to Human Rights Watch, individuals seem to have been targeted because authorities believed them to be involved in the Baloch nationalist movement (though often without basis)." (Emphasis added - therefore, the Appellant submits, the Appellant, even if active at a 'low level', on the FTT's findings, would remain at risk).
[205] HRW Report 2014: see short section on Baluchistan
[213] HRW Report 2015 "The human rights situation in Baluchistan remained abysmal" (and see rest of that passage).
[219] HRW Press: 13.7.11 "Upsurge in Killings in Baluchistan ... Across Baluchistan since January 2011 at least 150 people have been abducted and killed and their bodies abandoned."
[252] Global Voices, reference to BSO Azad being banned in 2013 for alleged 'terrorism'.
[254] Global Voices, reference to bodies of hundreds of Baluchistan's missing men turning up with torture marks since 2010.
[258] HRW 29.8.14 Impunity marks global day for disappeared" - reference in middle of pages to disappearances and bodies being found with torture marks (ie 2014 evidence)
[266] Guardian 29.3.11 'Pakistan's dirty war' - see at [269]: "At a Quetta safehouse I meet Asad Baloch, a wiry, talkative 22 year old activist with the Baloch Students' Organisation (Azad). "We provide moral and political support to the fighters," he says. "We are making people aware. When they are aware, they act." It is a risky business: about one third of all "kill and dump" victims were members of the BSO."
[293] UNPO briefing note, 'The Plight of the Baloch', see 'Human Rights Concerns' reference to late January 2014, mass graves were discovered in Khuzdar district in Baluchistan, uncovering hundreds of bodies (and therefore supporting Appellant's assertion at SEF q 124, explaining why he had claimed asylum, due to a deterioration in the situation in Pakistan, and referring to the mass graves).
(ii) Evidence of abuses in or around Karachi in particular (Ground 3):
(a) Appellant's bundle AB1, page:
[74] Abdul Ghaffar Lango abducted in Karachi ...On July 1, 2011, Lango's corpse was found in an abandoned hotel near Lakbado area of Gadani town in the Lasbela district of Baluchistan
[75] "The problem of disappearances in Pakistan is widespread and is not limited to Baluchistan province."
[95] "Human Rights Watch documented several cases in which local police assisted intelligence agencies in carrying out arrests that resulted in enforced disappearances. For example, on April 2, 2010, two police cars and two Toyota Hilux cars stopped a public bus in which Mehboob Wadela, 32, was travelling to Karachi from Gwadar." (or possibly from Karachi to Gwadar - see top of [134] - placing abduction at a bus terminal at outskirts of Karachi).
[102] "A leading member of the BSO Azad, Naseem Baloch was first forcibly disappeared in 2005 along with two other men. He was kept for three months by the authorities in unacknowledged detention in Karachi and Quetta." And see [132] reference to Naseem Baloch and others being detained in Karachi).
[107] "Abdul Qayuum Baloch was disappeared for four months in 2001 and then transferred to Karachi central jail. His mother said that when she met her son in jail, his entire body was swollen from beatings."
[110] "Two brothers, Aziz Khan Bugti, 30, and Megla Khan Bugti, 35, went missing in April 2005 as they travelled from Hyderabad in Sindh province to Karachi.."
[110] "Abdul Qayyum Baloch and Abdul Waheed from Quetta had been abducted in Karachi in January 2001
[275] The Express Tribune, 11.12.11 "Baloch activist gunned down in Karachi: example of a Balochi activist being stopped in a car; he tried to run away; was shot and killed (and see relevance for Appellant's account that he was shot at in his car in 2010).
[277-279] Dawn.com 28.10.14 "Three 'missing' Baloch activists found shot dead (see report - kidnapped elsewhere and detained - bodies dumped in Karachi).
[281] Dawn.com 3.5.13 "Another 'missing' Baloch activist turns up dead". See report; body found in Karachi.
[284-287] Crisisbaluchistan.com: 22.2.13: "Karachi: Extra judicial abductions". See item - Manzoor Ahmed Qalandarani, son of a tribal elder of Tootak, Baluchistan, abducted whilst studying at university in Karachi. Following 4 pages gives details of 4 other Karachi students who had been abducted, all named 'Baloch'.
[295] BBC News Asia: 20.5.14 "Abduction of activist Zahid Baloch highlights Baluchistan plight" (describes a protest and hunger strike in Karachi of persons protesting the abduction of an activist in Quetta) - evidence of Baluchi political issues manifesting themselves in Karachi.
Internal flight
25 Baluchistan and Karachi are unsafe for the Appellant. The Appellant is involved in Baluchi political matters in the UK.
26 Requiring the Appellant to relocate to another part of Pakistan, there being no evidence of presence of ethnic Baluchi in other areas of Pakistan, and no evidence of any social or political Baluchi organisations anywhere outside the Baluchistan/Karachi area, it would be unreasonable and unduly harsh to require the Appellant to relocate to another area of Pakistan. To do so would be require him to give up his Baluchi identity; this would be contrary to the Refugee Convention: HJ (Iran) v SSHD [2010] UKSC 31.
27 In any event, going to another area of Pakistan and campaigning on the issue of Baluchi rights would make him more visible, not less, due to his relative rarity in another area of Pakistan, and he would remain at real risk of serious harm in any area.
Retained Findings from the First-Tier Tribunal
5. I agree with Mr O'Ryan [6] that the findings summarised his subparagraphs (i) - (vi) survive the setting aside of the First-tier Tribunal decision. It is accepted, therefore, that the appellant is a member of the BSO Azad and that the Pakistani authorities had visited the appellant's home in November 2010 and the appellant and his brother had been shot at in 2011. It was also accepted that the appellant has attended protests in Pakistan connected with Baluchistan politics and that he has not experience problems as a result of attending those meetings.
The Shooting of the Appellant's Brother: 5 April 2015
6. Mr McVeety has submitted that the account given of the attack on the appellant's brother was not credible. This was because it had taken place in a "very public place" and that the attack had taken place some four years since the family had last been the subject of attack. Mr O'Ryan, on the other hand, refers to background material indicating that the Pakistan government had been "involved in a very long-term campaign against actual perceived Balloch students and activists." The appellant's brother had been discharged from the hospital on the same day following the shooting and had not received (as Mr McVeety submitted) "exceptional levels of care" for his wound. Mr O'Ryan also refers to the background material indicating that abductions are carried out "in broad daylight with multiple witnesses". [22].
7. Acknowledging that the burden of proof is on the appellant (I heard brief evidence from him at Manchester on 11 February 2016) and the standard of proof is whether there is a real risk that he will be exposed to persecution or ill-treatment in Pakistan, I have concluded that the appellant's brother was shot in April 2015 as the appellant claimed. I find that it is important to view the claimed shooting against the background of previous attacks on the appellant's family which had taken place over a number of years and are which are detailed in Mr O'Ryan's submissions in [19]. I am not satisfied that the public nature of the attack can be described as out of the ordinary by reference to the evidence referred to by Mr O'Ryan.
Who Killed Members of the Appellant's Family?
8. I refer above to [19] of Mr O'Ryan's submissions and the lengthy list of the appellant's family members who have been the subject of attacks over a period of years. Mr O'Ryan submits that it is "extremely unlikely to be for any explicable reason, other than their involvement in pro-Baluchi politics/being related to persons involved in such matters." [19(ii)]. Having considered all the evidence, I agree with Mr O'Ryan. I acknowledge Mr McVeety's submission that the attacks on the appellant's family have taken place over a lengthy period raising the question as to why, had they wished to prevent the appellant's family's activities, those seeking to harm the appellant's family had not concentrated their attacks upon the family. However, given the pattern of murders and the fact that each of the family members has been involved in Baluchi separatist politics then, considered against the background material cited at length in Mr O'Ryan's submissions, I find it is reasonably likely that each of the family members has been the victim of individuals or organisations opposed to the political opinions of those family members.
The Risk to the Appellant
9. It is important that I seek to characterise the appellant in order to be in a position to assess the likely risk to him upon return to his home area of Pakistan. I find that the appellant has been active in pro-Baluchi politics both in Pakistan whilst he lived there, also whilst in the United Kingdom. I find that he is a member of BSO Azad. I find that, over a period of years, members of the appellant's family have been killed on account of their pro-Baluchi political opinion. First-tier Tribunal Judge Siddiqi, whilst acknowledging the deaths, found that there was no evidence to show that they were linked to the Pakistani authorities. Having very carefully considered all the background material, I consider that there is a reasonable likelihood that the deaths of the appellant's family members have been perpetrated by the Pakistani security services or by individuals acting on behalf of those services and influenced probably controlled by them. I say that for the following reasons. I refer to Mr O'Ryan's submissions [24] identified the common thread running through the various citations of background material relate to attacks upon pro-Baluchi activists by agencies of the Pakistani government. There appears to be little evidence if any at all that individuals or organisations acting independently of the Pakistani authorities have targeted pro-Baluchistan activists. That the Baluchi political organisations are, in essence, separatist organisations and for obvious reasons are opposed by the central Pakistan state is axiomatic. It is clear also from the background material that, whilst the Pakistani authorities do not openly claim the murders of pro-Baluchi activists, they are engaged in what is described in the Guardian article of 29 March 2011 as a "dirty war". It is, therefore, reasonably likely that pro-Baluchi activists who are attacked in Pakistan are the victims of the Pakistan authorities either acting directly or through agencies.
10. Given that the appellant is a genuine pro-Baluchi activist notwithstanding the fact that he may have attended meetings in the past had not led to persecution, I find that the appellant would continue to pursue pro-Baluchi activities on return to Baluchistan and/or Karachi, in consequence, he would be at real risk of persecution or treatment contrary to Article 3 ECHR.
Internal Flight Alternative
11. The question remains whether the appellant may re-locate elsewhere in Pakistan outside Baluchistan and/or Karachi whether he would be at risk in such areas and also whether it would be unduly harsh to expect him to relocate. Mr O'Ryan's submission [26-27] focuses on the assertion that there are no Baluchi organisations operating outside the Baluchistan/Karachi area and that the appellant would be required to "give up his Baluchi identity" (HJ (Iran) [2010] UKSC 31). I do not find that submission particularly persuasive. Outside his home area, the appellant would live in an area of Pakistan where Baluchistani organisations are likely to be entirely absent and it seems very likely that his activities would, at the very least, be limited. Having said that, I find that the appellant, if he was living in Baluchistan/Karachi, would remain at real risk of persecution perpetrated by the Pakistani authorities. The Pakistani authorities operate throughout the geographical extent of Pakistan notwithstanding the activities of insurgents in some areas. Mr O'Ryan's second submission [27] that campaigning on "the issue of Baluchi rights would make [the appellant] more visible not less" is a persuasive one. Even if the appellant were living outside Baluchistan or Karachi, I find that he would still seek to express firmly-held pro-Baluchi sentiments and that, for the reason given by Mr O'Ryan, the expression of such sentiments may well attract attention. If that occurred, I find it likely the appellant would come to the attention of the police or security forces of Pakistan within the area of the country where he may reside. It might be argued that, outside Baluchistan, the Pakistan authorities may have little interest in lone voices supporting Baluchi separatism but, given the fact that the Pakistani authorities are willing to persecute and even kill pro-Baluchi activists in Baluchistan, I find that it is dangerous and probably wrong to assume that the authorities would ignore the appellant and dismiss his opinions and activities as harmless. There is nothing in the papers to indicate that pro-Baluchi activists living outside Baluchistan/Karachi have been persecuted, I find that there remains a reasonable likelihood that, if he actively expressed his pro-Baluchi views, the appellant is likely to suffer harm from the Pakistani authorities anywhere within Pakistan. It follows that if he refrained from expressing his views because of a fear of persecution, he would be entitled to refugee status on HJ (Iran) principles. It further follows that the internal flight alternative is not available to this appellant.
12. In the circumstances, I find that the appellant's appeal against the decision of the respondent dated 16 January 2015 should be allowed on asylum/Articles 2 and 3 ECHR grounds.
Notice of Decision

The decision of the First-tier Tribunal which was promulgated on 22 May 2015 is set aside. I have remade the decision. The appellant's appeal against the decision of the Secretary of State dated 16 January 2015 is allowed on asylum grounds and Articles 2/3 ECHR grounds.

No anonymity direction is made.

Signed Date 27 July 2016

Upper Tribunal Judge Clive Lane