Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02194/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 29th November, 2016
On 14th March, 2017

Before

Upper Tribunal Judge Chalkley

Between

Mr Moqeem Hussain
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Chowdhury, an Assistant Solicitor with Chance Hunter
For the Respondent: Mr Bates, a Home Office Presenting Officer

DECISION AND REASONS
1. The appellant was born on 11th February, 1995 and is a citizen of Pakistan.
2. The appellant entered the United Kingdom on 3rd March, 2011 and was granted leave to remain until 10th August, 2012, on a discretionary basis. On 9th August, 2012 the appellant claimed asylum and appealed the decision of the respondent, taken on 12th January, 2015, to refuse to grant his claim to asylum or humanitarian protection and to remove him from the United Kingdom by way of directions under Section 10 of the 1999 Immigration and Asylum Act.
3. The appellant appealed to the First-tier Tribunal and his appeal was heard by First-tier Tribunal Judge A K Simpson in Manchester on 16th December, 2015. At paragraph 4 of her determination she summarises the appellant’s claim for asylum as follows:-
(a) He comes from Jhelum and lived there with his paternal grandmother and parents. He attended an exclusive military academy, mostly for children whose fathers had military backgrounds or were wealthy businessmen and other professionals;
(b) the appellant’s father is a well-known and successful local businessman. They lived in a large air-conditioned house and his father owned a lot of land in the village. His father spent six months every year in Saudi Arabia;
(c) on 20th October, 2009 he was kidnapped and held for ransom by five armed men, three of whom were known to him; these three were neighbours, Sarfraz Ahmed, Fareeq Naiy and a man called “Saab” whose actual name is Mohammed Ali Urfsaab;
(d) the five men, three of whom were dressed in police uniform, came to the appellant’s home and threatened his adult relatives. They stole gold and forced the appellant, who was then aged 14 years, to leave with them on a motorcycle;
(e) the appellant later discovered that two of the men who guarded him during his captivity were called Sala and Sadaquata;
(f) the appellant’s father paid a ransom for his release, which occurred some 22 days later;
(g) three to four weeks after his release, the appellant began to receive telephone calls threatening him with death if his family pursued an investigation of the crime;
(h) the appellant visited the United Kingdom in 2010 and returned to Pakistan in the middle of his kidnappers’ trial so that he could give evidence. His kidnappers were acquitted: the appellant claims because of bribery and connections with the local police;
(i) the appellant left Pakistan on 2nd March, 2011;
(j) on 29th March, 2011 an appeal was lodged against the kidnappers’ acquittal.
4. The judge heard evidence from the appellant and from a cousin, Mudasser Riaz, who had also made a statement. The appellant’s witness was not, apparently, invited to adopt the statement he had made. The judge considered medical evidence in the form of a psychologist’s report, suggesting that there was strong evidence that the appellant suffers from posttraumatic stress disorder and that there has been a long-term personality change making the appellant socially reclusive and mistrustful. The author of the report suggested that were the appellant to return to Pakistan he is likely to experience an exacerbation of his depressive disorder and PTSD and likely to become excessively hypervigilant with a worsening of his sleep state which would in turn exacerbate his low mood and general anxiety. The author also suggested that the appellant may become a suicide risk although he has not exhibited this behaviour thus far.
5. Submitted with the bundle on behalf of the appellant were statements from Muhammad Rafique, Surraya Begum, Mohammed Yasir, Mudasser Riaz, Irfan Kaiser Arif and Luqman Atif Arif. The judge accepted that the appellant had been kidnapped during the course of a robbery and detained by his abductors for 22 days. She acknowledged that he fell within the category of persons to whom Rule 339K of the Immigration Rules applies. However, she found, on the basis of the evidence before her, that the Pakistani government are able and willing to provide protection against criminals and concluded that were he to be returned to Pakistan there was no real risk that he would be subjected to ill-treatment such as would infringe his Article 3 rights and concluded also that she would also have to dismiss his asylum claim. She noted that the appellant was now an adult and that there was a consequent “depreciation in the strength of his family life vis-à-vis other adult relatives”. She acknowledged that the appellant had received emotional support from uncle, aunt and cousins since his first arrival in the United Kingdom, but even that had diminished as he had grown out of his teenage years. She did not believe, therefore, that the appellant’s removal would interfere with his Article 8 rights. She properly considered Section 91 of the 2014 Immigration Act and dismissed his human rights appeal.
6. The appellant sought and obtained leave to appeal and in paragraph 3 of her reasons for granting leave Upper Tribunal Judge Plimmer said this:-
“However there was clear and detailed evidence linking the appellant’s medical condition with a particular need for support from his UK-based family – see the medical evidence itself and the witness statements from the appellant and his family members. The First-tier Tribunal Judge accepted that as a child the appellant was kidnapped yet made no clear finding as to the impact of this upon the appellant’s mental health and/or his family life in the United Kingdom. In these circumstances it is arguable that the First-tier Tribunal erred in law in failing to engage with this evidence when making findings regarding Article 8.”
7. At the hearing before me, Ms Chowdhury told me that the appellant was awaiting cognitive behaviour therapy despite having been diagnosed with PTSD originally in 2012 and despite the psychologist’s report, which was considered by the judge. She told me that the determination shows an absence of any findings of dependency which the appellant has on his family members. This is despite the fact that one of them gave evidence before the judge and that several made written statements which were placed before the judge and which the judge claims to have read. It was only Lance Sergeant Riaz who gave oral evidence and his evidence is recorded starting at paragraph 18 of the determination. The other witnesses did not attend court.
8. Although the appellant is an adult, he has always been accompanied to court and to medical appointments by members of his family, who were also instrumental in helping him to obtain a job. In his statement he claims that he is dependent on his family members. Had the judge engaged with the evidence she would, the appellant’s represented urged, have allowed the appellant’s human rights appeal.
9. Mr Bates reminded me that paragraph 15 of the determination sets out details of the contact the appellant himself claimed to have with his relatives in the United Kingdom. The appellant sees his maternal aunt in the United Kingdom every three or four days, but neither she nor his other relatives gave oral evidence before the judge. At paragraph 46 of her determination, the judge noted that the appellant was now an adult and that as a result, there was a consequent depreciation in the strength of the appellant’s family life with his other adult relatives. The judge was clearly mindful of the evidence before her and acknowledged that he had received emotional support from his uncle, his aunt and cousins since his first arrival in the United Kingdom. However, she found that this dependency had diminished, as he had grown out of his teenage years and was entitled, therefore, on the evidence before her, to conclude that the appellant’s family life with his adult relatives was not such as to cause a breach of Article 8 in the event of his leaving the United Kingdom.
10. The Presenting Officer reminded me that the events in Pakistan occurred some seven years ago. The onus, he suggested, was on the appellant to demonstrate his dependency on relatives in the United Kingdom. Only one of his relatives chose to attend the hearing and he was a serving soldier who had been serving abroad and out of the United Kingdom, having recently returned from an operational tour in Afghanistan. The judge was entitled not to place as much weight on evidence in the form of signed statements as she did on the evidence of the witness who attended before her and inevitably their failure to attend and give oral evidence must affect the weight the judge attached to claims of dependency.
11. It is clear from the determination that the judge did carefully consider the medical evidence. Overall, he suggested, the judge’s conclusions are reasonable and were ones which were open to her to make on the evidence adduced to her.
12. Addressing me in closing on behalf of the appellant, Ms Chowdhury acknowledged that at paragraph 46 of the determination the judge had demonstrated an appreciation of the family ties, but nowhere does the judge set out this evidence. The psychological report refers to the appellant’s dependency on his family at page 23. I reserved my determination.
13. I have examined the bundle of documents submitted to the First-tier Tribunal and I have read the statements from the appellant’s family members. The first is a statement by the appellant’s father, who runs a lucrative garage in Saudi Arabia with his brother-in-law and who describes himself as being a successful businessman with a large and extensive property in Pakistan. He describes the robbery and the eventual payment of a ransom to secure his son’s safe release. He also speaks about the police investigation and the subsequent court case and the fact that the abductors apparently learnt that the appellant had gone to the United Kingdom. He speaks of the appellant being despondent and subdued, unhappy and distant and says that his family in the United Kingdom look after him and provide him with the support they can. Unfortunately that statement is not signed. There is nothing to indicate that it has been read to the appellant’s father in a language he understands and that it is true and accurate.
14. It is astonishing that solicitors should submit unsigned witness statements to the Tribunal. They must surely realise that little (if any) weight is likely to be placed on an unsigned statement from a witness.
15. The next statement was from the appellant’s paternal aunt. Her younger brother is the appellant’s father. She was told of the kidnapping at the time and she indicated that after returning from Pakistan after the not guilty verdict, “we” decided that the appellant should seek asylum. She implies, therefore, that the decision that the appellant should claim asylum was a decision of the family. She explains that the family are close and that the appellant is “slowly coming out of his shell”, but anxious that the decision will force him to go back to Pakistan.
16. One certainly gets the impression reading that that the appellant’s aunt is, as one would expect, concerned for her nephew, but it does not demonstrate that the appellant is dependent on his family members for anything more than the normal amount of emotional support that families give to each other. She describes him as being reluctant to go out and “very clingy” and that he is wary of young men and avoids contact with anyone other than his immediate family, but given that he apparently speaks Punjabi (he gave evidence to the Tribunal through a Punjabi interpreter) this is perhaps not so surprising.
17. I then read the statement of Mr Yasir, the appellant’s first cousin, who is a pharmacist and manages his own pharmacy. He noticed that the appellant was withdrawn after arriving in the United Kingdom and he speaks of the appellant being resentful at the need to ask his family for financial assistance. He spoke of the appellant being doted on by his mother as an only child. The appellant currently works in a takeaway and was enrolled in a local school in Blackburn and later a local college. The witness said that he and his family had done their best to make the appellant feel safe and secure. It speaks of the appellant needing help with basic things like shopping and that his family had helped him with school, college, trips to the library and even helped him obtain a job. I also read the statement of Lance Sergeant Riaz. The statement does not appear to have been adopted by the witness when he gave oral evidence, but it is in similar form to the other witness statements. The witness said that he and his brothers had tried to make the appellant feel welcome and safe and secure and they now understand more easily why the appellant struggles to enter into discussions and avoid confrontations.
18. The next statement I read was from Irfan Kaiser Arif, a member of the RICS and the appellant’s first cousin. Again, this is in a very similar format to the previous statements, but it confirms that the witness attended the appellant’s screening interview in Croydon in 2011, since the appellant’s uncle, with whom the appellant was living at the time, was unable to attend. At that time, of course, the appellant was 16 years of age and extremely vulnerable. The witness spoke of it taking some time for the appellant to recover from the initial shock of his interview with the Home Office, but that of course took place some years ago. He describes the appellant as speaking English, although his first language is Punjabi. He describes the appellant as having to struggle to let go of his way of life in Pakistan and being unwilling to wear clothes that the family bought him as he wanted to wear traditional Pakistani clothes. It also spoke of the appellant’s dislike of being so dependent on his family for money.
19. The statement finishes by suggesting that the appellant is exceptionally emotionally dependent, but like the other witnesses his statement gives very little information concerning that dependency.
20. I also read the statement of Luqman Arif, another cousin, who is employed as a chartered accountant. This is also very similar format. The statements give the impression that they have been prepared for the witnesses and the witnesses have simply signed them. It spoke of the appellant’s family rallying around him, but again gives very little information as to the appellant’s dependency. Like the other statements it does not, for example, give any indication as to how often the witness sees the appellant.
21. As a result of my having examined carefully the evidence before her, I believe that what the judge said at paragraph 46 was fair, reasonable and properly reflected the evidence. The oral evidence of Lance Sergeant Riaz really spoke about his experience of the appellant’s family life in Pakistan and the fact that if the appellant were to return to Pakistan the witness would be able to keep in touch with him but it would be difficult to do so.
22. I have concluded that the judge’s findings and conclusions were open to her to make on the evidence before her. The judge has very clearly considered and taken into account the medical evidence and other evidence placed before her which the appellant’s solicitors chose to present. She has not materially erred in law in her determination and I uphold her determination.

Notice of Decision
The appeal is dismissed.
No anonymity direction is made.

Richard Chalkley

A Judge of the Upper Tribunal.

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Richard Chalkley

A Judge of the Upper Tribunal