Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04057/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision Promulgated
On 16 February 2017
On 28 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

QADEER AHMED
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Mohzam (Burton and Burton Solicitors)
For the Respondent: Mrs R Pettersen (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the appeal of Qadeer Ahmed against the decision of the First-tier Tribunal of 25 April 2016 dismissing his appeal against the refusal of his asylum claim on 6 March 2015.
2. The Appellant arrived in the UK on 8 December 2003 and was granted leave to enter as a visitor until 8 June 2004. He next came to light when applying for leave to enter on 7 June 2010; that application was refused shortly thereafter, and a reconsideration refused on 17 December 2010. He was arrested on suspicion of an immigration offence on 25 September 2012, and claimed asylum on 9 November 2012, but subsequently withdrew that claim. The Secretary of State made a decision to remove him from the UK on 12 November 2013, and he appealed against that decision, his appeal failing on 7 January 2013. He claimed asylum again on 9 January 2013, and subsequently had an appeal within the detained fast track process, which was set aside by the First-tier Tribunal under the procedure established for dealing with asylum appeals dealt with under the 2014 Rules.
3. His appeal was first dismissed on 7 January 2013 following a hearing a month earlier. At the outset of that hearing he sought to withdraw that appeal on the basis that he was now pursuing an appeal claim with the Home Office; however, a file note provided by the Respondent indicated that an asylum claim had already been filed with UKBA and withdrawn. The Judge sought clarification of the Appellant’s position, and he stated that his asylum claim was weak and that the situation in Pakistan was not good. In the circumstances the First-tier Tribunal decided to hear and determine his appeal, as that would not forestall any subsequent application to the Home Office that he considered necessary to advance his cause.
4. His asylum claim as then advanced was that a colleague had been killed at his workplace in Quetta, Pakistan. Subsequently it came to his attention that many Punjabis had been killed by terrorist groups opposed to the residence of Punjabis in Baluchistan. He was fearful and asked his wife and children to move to a nearby village where he had many friends who could support them. However, recently gangs had targeted the village and a friend who had helped them relocate was murdered when walking on the street, by men on motorcycles who shot him because he was Punjabi. The Appellant believed he would instantly recognisable as Punjabi and himself murdered.
5. He told the Judge hearing that appeal that he had not previously claimed asylum as he had not understood how to do so. Now he appreciated the process.
6. The First-tier Tribunal found the Appellant to be an unreliable witness because of discrepancies as to the identity and location of killings that he asserted as the foundation of his claim. The chronology he had provided was considered inconsistent with the background country evidence that traced an insurgency against Punjabis in Baluchistan to 2006, whereas the Appellant's claims originated in events alleged to have transpired in 2004. It concluded that it was likely that the Appellant supported his wife in Pakistan, contrary to the assertion that it was his wife’s earnings that supported his family there.
7. As to his private and family life claim, his only relative here was his daughter Maria whereas he had his wife and children in Pakistan, and it would be proportionate for him to resume family life there in his country of origin where he had been born and grown up.
8. Subsequent appeal proceedings were set aside having been heard and dismissed within the First-tier Tribunal.
9. His asylum claim as now put forward as summarised by the Secretary of State was that he was a Sunni Muslim, married since 1986 with his wife and children living in Quetta. In 1998 some Balochs attempted to rob him when he was walking along the road. He was injured, suffering cuts to his right arm, but managed to escape. In 2004 after he had arrived in the UK his problems back in Pakistan really began: his wife told him that she was receiving threatening letters from the Taliban. He wanted to return there but a close friend, Farooq, was killed in Quetta, by persons unknown, because of his Shia beliefs. In 2005 he learned from his wife that his friend Ajmal had been killed at the hands of persons unknown. In 2006 his family warned him not to return there. In 2010 his brother-in-law Amjad Ali was killed. A son of his aunt, Shafiq Ahmed, provisional education minister, was murdered near his home. The killers are unknown. The family moved some fifteen miles away from Quetta.
10. The First-tier Tribunal considered that the issues before it had almost entirely been addressed by the earlier appeal decision. It noted that in his asylum interview he had stated himself to be a Sunni Muslim whereas at the hearing he now stated he was a Sunni/Shia Muslim. He sung and read poetry to the Shia and was thus regarded as a Shia Muslim. Evaluating his evidence, it found that he had failed to show that there was any reason for departing from the previous findings of the First-tier Tribunal; an untranslated photocopy of a document in Arabic did not establish that he had been threatened as claimed in Pakistan.
11. The First-tier Tribunal accepted that his situation had altered since the previous disposition of his appeal on Article 8 grounds, given the evidence he suffered from diabetes and had difficulties with his left shoulder. Such evidence as he provided, however, did not establish that he had any critical or life-threatening illness, and suggested that his diabetes was under control and his shoulder pains successfully treated by medication.
12. Grounds of appeal against that decision argued that
a. As to the asylum claim, the new religious persecution dimension had not been properly considered and no country evidence with respect to the situation of Shias in Pakistan had been cited in the decision;
b. The consideration of private and family life was made wholly by reference to the earlier findings from 2013 without regard to developments in the Appellant’s circumstances since then.
13. The First-tier Tribunal granted permission to appeal on 4 July 2016, in particular because there was no assessment of the Appellant’s asylum claim as a Shia; reliance on the earlier decision based on Devaseelan principles was therefore an inadequate assessment of the issues raised generally by the appeal.
Findings and reasons
14. Permission to appeal has been granted essentially on two grounds, that the First-tier Tribunal respectively failed to make credibility findings and assess the consequent risk that the Appellant would face on return to Pakistan; and that it failed to adequately determine his private life rights and the proportionality of any interference with such rights.
15. In the normal case, given that asylum appeals require anxious scrutiny, there can be no doubt that reasoned adjudication is appropriate to every aspect of an asylum claim. However in this particular appeal the circumstances were somewhat extraordinary. The Appellant had made an asylum claim to the Secretary of State in 2012 but then apparently withdrew it, although he nevertheless chose to rely upon that claim as part of the human rights arguments he then put before the First-tier Tribunal: that Tribunal then dismissed his appeal, finding his account wholly incredible, in January 2013. He then claimed asylum again, and went through the Detained Fast Track procedure; under the standing arrangements for remedying the potential injustices that system brought with it, that decision was then annulled. He has now brought his appeal through the Tribunal system once again.
16. There had been a prior adjudication of the human rights underlying the Appellant’s asylum claim and so in principle that assessment represented the starting point for the subsequent appeal as set out in Devaseelan (D (Tamil) [2002] UKIAT 00702): in short the prior determinations is the authoritative historic resolution of the case, although a Judge is entitled to take account of subsequent facts, whilst treating the adduction of further evidence relating to the historic situation with circumspection, although this principle is modified where there is a very good reason for the failure to adduce any particular evidence in the earlier proceedings.
17. Here, the substance of his claim is virtually identical on this occasion to its earlier formulation. Indeed his advocate before me was quite unable when pressed to isolate which aspects of the claim were different to its previous ventilation. It is impossible to think that the Appellant was unaware of the importance of clearly presenting any developments upon which he now relied that had not previously been determined; he had told the Judge at his 2013 appeal hearing that he now understood the system, and since then he has had a significant period to formulate it, his mind presumably focussed by the experience of the accelerated appeals process and the legal advice he has subsequently received.
18. The sole passage of his asylum interview which appears to present a feature of his case that was not previously expressly addressed is that where he stated himself to be a person who, because he had sung and read poetry to the Shia Muslims, was regarded as one himself. However, the rest of the evidence he put forward, as to a series of killings in Pakistan, appears to have been the very same account that had previously been found wanting.
19. Moreover, there is no material suggesting that Shias (who I understand form some 25% of the population of Pakistan) are at general risk of serious harm. The country evidence supplied mainly consists of media reports rather than the more reliable assessments produced by the main human rights reporters. I was taken to no country evidence that was said to establish the viability of any risk of serious harm that he might face as a Shia, and nor was I shown any material suggesting that he would be unable to find a reasonable solution to any problems he could conceivably face in his home area via internal relocation to one of Pakistan’s numerous urban centres.
20. Asylum appeals must be approached applying the appropriate anxious scrutiny, and as Carnwath LJ explained in YH [2010] EWCA Civ 116 that term “has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account.” However he went on: “Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies.” I have no hesitation in concluding from the history presented by this appeal that the Appellant's asylum claim based on religion was not of the substance that required any further engagement than that which it received below.
21. As to the Article 8 claim, it seems to me that this was properly dealt with. The new aspects that had arisen since the last judicial decision on his claim were properly addressed. It is indeed the case that the Appellant's medical problems were documented as receiving ostensibly adequate treatment of a kind that could be expected to be available in his country of origin. Any ties he had here were weakened by the departure of his sister from the UK. There is no error of law shown in the reasoning below.
22. I accordingly find that the decision below was legally adequate and dismiss the appeal.

Decision:
The decision of the First-tier Tribunal did not contain a material error of law.
The appeal is dismissed.

Signed: Date: 21 February 2017
Deputy Upper Tribunal Judge Symes