Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: aa/04282/2015
Aa/04288/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 4th November 2016
On 24th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) M S H
(2) B S K
(ANONYMITY DIRECTIONS MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Q Ahmed (LR)
For the Respondent: Mr D Mills (HOPO)

DECISION AND REASONS
1. The Appellants are husband and wife and both are citizens of Pakistan. The first Appellant, the husband, was born on 1st February 1982. The second Appellant, his wife, was born on 4th November 1984. They appealed to the First-tier Tribunal against the decision of the Respondent Secretary of State dated 18th February 2015 which rejected their asylum claims and they alleged that the decision was in breach of the United Kingdom's obligations under the Refugee Convention and the European Convention on Human Rights.
2. The Appellants' appeal was heard by First-tier Tribunal Judge Parks on 8th April 2016.
3. The claim put forward is that the first Appellant and his father were members of MQM Haqiqi (MQM-H). In February 2015 a group forced their way into the family home. They abducted the first Appellant's father. The father held a senior position within the party. He was involved in recruitment and in administration. The first Appellant alleged that his mother was not allowed to submit an FIR and following a threatening phone call decided not to. After his father had fled to Malaysia between 2004 and 2009 the Appellant had taken over his father's position. He feared the intelligence agencies and his brother-in-law, a member of MQM-Altaf (MQM-A), a rival faction (see paragraph 10 of the determination).
4. At paragraph 30 of the determination, Judge Parkes stated as follows:
"Even if the second Appellant's brother-in-law is involved in the MQM-A the evidence that the parties reach an inference is such that there is nowhere safe in Pakistan is not supported by the evidence. Pakistan is a large country with several large cities where there is no evidence of MQM Party influence or activity. I find that if the Appellants were to return to Pakistan they could relocate within the country using their qualifications and skills to re-establish themselves".
Indeed, the judge held that he was not satisfied that the second Appellant's brother-in-law was involved with MQM-A or that he had the capacity to take action against her or the first Appellant in Pakistan. He held that, "there is no supporting evidence for her claim about her sister's death and in the absence of any evidence I do not accept that she died as claimed or that her brother-in-law was involved" (paragraph 29).
5. The Grounds of Appeal state that the assessment of the Appellant's overall credibility may have been influenced by the judge mistakenly taking the position that the Appellant's student visa had expired before he claimed asylum. It was also said that the judge failed to take into account the Appellant's explanation for the absence of documentary evidence to show his involvement in the MQM Party.
6. Permission to appeal was granted by the First-tier Tribunal on 27th June 2016.
7. A Rule 24 response was entered by the Respondent Secretary of State on 19th July 2016.
8. At the hearing before me on 4th November 2016, Mr Ahmed, appearing on behalf of the Appellant, submitted that there had been five grounds of application and each of them had been allowed for consideration in this Tribunal.
9. First, he stated that the judge was wrong to conclude that the Appellant came as a student to the UK "and after expiry of his student visa in October 2013 he claimed asylum in February 2014" (paragraph 9). This is because the Appellant's student visa expired on 23rd February 2014, but the Appellant had already on 11th February 2014 made his application for asylum, so that the judge was wrong to conclude that this was an application made after expiry of leave to remain.
10. Second, the first Appellant had indeed planned to return back to Pakistan on 20th February 2014 and had purchased an airline ticket but on 9th February 2014, he found that his father had been kidnapped in Pakistan and all the indications were that it would be unsafe for him to return so that he had to cancel the return back to Pakistan and to make an application for asylum.
11. Third, a proper assessment of credibility had been impaired by the judge being distracted by matters that were not relevant or germane to the issues at hand or simply misconstrued so that I should make a finding of an error of law and remit the matter back to the First-tier Tribunal to be reheard again. Indeed, there had not been a proper assessment of the risk on return because it had not been accepted why an FIR had not been lodged and the judge was mistaken about how FIRs are issued in Pakistan. He had wrongly concluded that the mother would not have been denied an FIR in the circumstances described. He had also wrongly concluded that the FIR would be refused simply because the perpetrators were unknown (see paragraph 20).
12. For his part, Mr Mills relied upon the Rule 24 response. He made the following submissions. He stated that even if the judge had wrongly stated of the first Appellant that, "he came to the UK as a student and after expiry of his student visa in October 2013 he claimed asylum in February 2014" (paragraph 9), this was not a material error because the judge nowhere in the determination ascribed any lack of credibility to the Appellant on account of his having made an application, which the judge wrongly described, as having been made after expiry of the Appellant's student visa. It was simply a mis-statement of the fact. It did not go to the assessment of the credibility in any way. Had the judge said that, because the Appellant had made an application after expiry of the visa, for that reason alone his application was to be treated with suspicion, that would have been a different matter. Whatever the judge said did not impact upon the judge's credibility assessment of the Appellant's claim.
13. Second, for the judge to require corroboration of the Appellant's claim was not an unlawful exercise of his discretionary authority because, although corroboration was not a requirement in asylum claims, in appropriate cases the judge would be entitled to see the absence of corroboration, in relation to a claim that is made, as being damaging. For example, here the judge was entirely correct to say that, "there is no supporting evidence for her claim about her sister's death" (paragraph 29), when the judge referred to the second Appellant's brother-in-law being involved in MQM-A. Furthermore, given that the Appellant's claim was that, "he took over from his father for the period that his father was in voluntary exile" (paragraph 18), it was entirely reasonable for the judge to conclude that, "the absence of any supporting evidence for his involvement in the party is surprising", such that, "it remains the case that there is no supporting evidence for his having held any role in the MQM-H faction or even that he was a member of the party itself" (paragraph 19).
14. Finally, cases involving alleged threats from the MQM, a Karachi-based party in the south of Pakistan, invariably fails quite simply because this is a regional party which has no reach outside its main provincial area, such that internal relocation is always an option that is available to people who are in a position to avail themselves of it. The judge concluded that this was the case here as well (see paragraph 30).
15. In reply, Mr Ahmed submitted that the judge had indeed drawn adverse inferences from the Appellant's lack of supporting or documentary evidence which were unwarranted because he had stated at the outset (at paragraph 5) that, "the provisions of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 also bear upon consideration of an Appellant's credibility". I pointed it out to Mr Ahmed that this was simply a statement of the law that would apply in a given case where an asylum claim was made. The judge was not suggesting at all that Section 8 fell to be applied in this case.
16. Second, Mr Ahmed submitted that the judge had criticised the Appellant on the basis that there was a gap of five months between the rejection of the asylum claim and the hearing itself, thereby giving the Appellant ample time to produce supporting evidence in relation to matters before the Tribunal, which he had failed to do. Mr Ahmed submitted that this was unfair criticism because the Appellant had planned to go back, and had only decided not to when his father was kidnapped, and his wife also had an extra year to remain in this country.
17. However, this does not mean, as I observed, that the judge was not entitled to conclude that, "he has known that this was a source of concern in the refusal letter and I am entitled to have regard to the evidence that may be expected to be available", and this is not least because the judge went on to also state that, "it would be reasonable to expect that someone who held a high rank within a political party would be able to provide some evidence in support of their membership and activities and the complete absence of any such evidence undermines the first Appellant's case" (see paragraph 19).
No Error of Law
18. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12.1 of TCA 2007) such that I should set aside the decision. My reasons are as follows. First, the mis-statement that the Appellant applied for asylum after the expiry of his student visa goes to nothing as this mis-statement is not used in any way to assess the Appellant's credibility in the asylum claim (see paragraph 9). Second, the judge's recital of Section 8 of the 2004 Act (at paragraph 5) is simply that and is not used by him in any way whatsoever to suggest that the Appellant's credibility fails because of Section 8 of that law. Third, the judge was perfectly entitled, when faced with the Appellant's claim that he was "someone who held a high rank within a political party" (see paragraph 19) to expect some evidence of this, notwithstanding Mr Ahmed's submission before me that the Appellants had intended to return back to Pakistan. Fourth, the judge also correctly observed that the first Appellant did not appear to have undertaken any political activities in the UK and does not appear to have made any effort to locate other MQM-H supporters or former members (see paragraph 23). Fifth, the judge correctly rejected any suggestion that there would be risk on account of the first and second Appellant having undergone a "love marriage" and gave proper reasons for this. Finally, internal relocation was a clear possibility available to the first and second Appellant and the judge was right to have concluded that the claim would fail in any event for this reason when observing that, "I find that if the Appellants were to return to Pakistan they could relocate within the country using their qualifications and skills to re-establish themselves" (paragraph 30). This appeal is devoid of all merit and I reject it and uphold the decision of the First-tier Tribunal Judge.

Notice of Decision
There is no material error of law in the original judge's decision. The determination shall stand.
An anonymity direction is made.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Juss 23rd November 2016