Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04954/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 July 2016
On 31 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

s k q z + 3 DEPENDANTS
(ANONYMITY DIRECTION CONTINUED)
Respondent

Representation:
For the Appellant: Ms J Hassan of Counsel
For the Respondent: Ms A Brocklesby-Weller, a Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. I will refer to the parties to this appeal by their designations before the First-tier Tribunal (FtT).

2. The present appeal last came before me for hearing on 12 May 2016. However, before that hearing the appellant's representatives had applied to set aside my earlier decision promulgated on 1 April 2016. In that decision I found a material error of law in the decision of the FtT such that it was required to be set aside. However, Mr Turner, who appeared on behalf of the appellant at that hearing, indicated that, contrary to the directions given at the hearing on 21 March 2016, the appellant had not prepared any updated material. He also indicated he was no longer maintaining his application to set-aside. He invited me to embark on a de novo hearing of the entire appeal or remit the matter to the FtT. I decided to make appropriate directions for a further hearing. I also directed that both parties be given leave to adduce brief updating evidence relevant to the issues, including any issue relating to Article 8 of the ECHR. Accordingly, the case was adjourned on 1 July 2016 when it was listed with a three-hour time estimate.

3. On 1 July 2016 both parties were represented and I heard extensive submissions from those representatives. The hearing lasted approximately two and a half hours.

The Hearing

4. Unfortunately, the start of the hearing had to be delayed because Ms Brocklesby-Weller said she had not seen all the documents in the case. I therefore allowed her approximately 40 minutes to consider the documents.

5. Ms Hassan submitted that the respondent had been given more than adequate time to consider the first instance reports (FIRs). She also indicated that the document verification reports (DVRs) contained a number of discrepancies. It seems that a number of these reports were carried out by a person with the same initials. For example, the same individual seemed to have telephoned two different police stations at the same time. Clearly, this was not possible. This, Ms Hassan suggested, made this evidence questionable. She said that proper submissions had been made before the FtT, which had reached conclusions having considered the shortcomings in the documentation.

6. After the hearing resumed at 11.23am Ms Brocklesby-Weller said that the first instance reports were false and the appellant's account of how those reports were created was also incredible. There was considerable confusion over which document verification report dealt with which FIR. I pointed out to the parties that it would have been very helpful if the Tribunal had been provided with a schedule setting out the date of each FIR and the corresponding DVR, particularly since there was considerable confusion about this.

7. Ms Hassan referred me to objective evidence which suggested that the only person who is entitled to a copy of an FIR is the complainant in each case. Therefore, she questioned whether the respondent would be able to obtain such material. Ms Hassan then took me to the actual FIRs in a bundle of documents dated 18 September 2014 at page 32. Ms Hassan explained that the FIRs were completed in Urdu but have been translated into English. She pointed out that many of the complaints were of some age. Ms Hassan pointed out that there was no database of FIRs. They had to be accessed manually. The records were not computerised. Therefore, every police station contacted would have to search for physical records. Also, there was no sharing of information between police districts. Ms Hassan referred me to document verification report number 3 (actually number 8). This refers to a report to Gowal Mandi Police Station, yet an official of Allama Iqbal Town Police Station was contacted. Also, Ms Hassan pointed out the date and time of contact was 29 May 2014 at 12.20pm. That was exactly the same time as a contact with Allama Iqbal Police Station had been made in relation to document verification report number 4 (also known as document verification report number 7). In her submission it was not credible that two separate contacts relating to separate incidents would both relate to the same minute of the same day. No attempt seems to have been made to find out whether the person spoken to even worked for the police. Therefore, she said, the FtT had correctly questioned the authenticity/accuracy of these DVRs. An additional point related to the identity of the person contacting the police station. It seemed the writer as described is a "Mohrir". The same writer seems to have contacted all the police stations. Furthermore, her client had made very detailed complaints. There was nothing that the respondent had produced which undermined the accuracy of the detailed reports the appellant had generated. As far as Masti Gate Police Station was concerned Ms Hassan did not accept that the number given by Ms Brocklesby-Weller (042-37660300), which she had obtained from a Google search the day before the hearing, was necessarily accurate. That number contradicted the number given by the appellant (042-99239651). Ms Hassan explained the discrepancy by saying that the explanation may be perfectly innocent. The number may have changed.

8. Ms Brocklesby-Weller responded to say that in relation to DVR 3 (also known as DVR 8) the substance of the investigation revealed that the FIR number supplied (1013 of 2002) was not registered as claimed. The FIR was forged and not genuine. I was also referred to FIR at page 59 (reference FIR 117 of 2003) which corresponds with DVR 2 (also known as DVR 9). The DVR in question clearly shows that no such report was made. Ms Brocklesby-Weller also said that the Allama Iqbal Station was contacted. It may be that the organisational structure of the Lahore Police explained why a particular police station had been contacted in relation to a particular FIR. There was a certain amount of speculation about how various discrepancies had arisen but her general submission was that there was no requirement for the whole of the FIR to be placed before a police station. Clearly, the respondent's investigations had revealed significant discrepancies and there was no reason to doubt the evidence she had obtained.

9. Ms Hassan responded to say that while she accepted that the respondent would not necessarily have fabricated evidence, human errors may have occurred. Given the gravity of the issues in the case I was asked to give the appellant the benefit of any doubt. It was not good enough to say that there "may be errors". Where anonymous reports were relied on at least the rank of the person who made the report for the DVR should have been given. It was not credible that the police contacted would have been able to obtain the information requested so quickly and at such short notice. It was more than mere coincidence that two DVRs were at exactly the same time. This made them highly suspicious. In the circumstances I was asked to conclude that the evidence adduced by the respondent in the form of DVRs was not reliable and did not undermine the appellant's evidence. For those reasons I was invited to dismiss the respondent's appeal to the Upper Tribunal.

10. At the end of the hearing I reserved my decision.

Discussion

11. It seems to be common ground that the burden of proving that the FIRs were false rather than genuine rested on the respondent. The respondent claims that it makes a material difference to the veracity of the appellant's case that, the FIRs having been submitted to document verification analysis, had been shown to be false rather than genuine. The DVRs confirmed that the FIRs were not genuine and, furthermore, that warrants were forged and not genuine. The respondent claims that the flawed assessment of the DVRs undermines the assessment of credibility made by the Immigration Judge so as to lead to a material difference to the outcome of the appeal. Indeed, the respondent claims, the Upper Tribunal ought to substitute its decision to dismiss the appeal against the respondent's decision to refuse asylum/human rights protection for the decision of the FTT to allow that appeal.

12. The Tribunal cannot make its own assessment of any witness's credibility when it has not heard that witness give evidence but it is possible, in analysing the facts, to reach a different conclusion than the FTT. If, as Ms Brocklesby-Weller suggests, the FIR's are in fact false that may be a decisive factor in deciding whether the FTT reached a conclusion it was entitled to come to. Mrs Brocklesby Weller suggests that the false FIR's are sufficiently decisive to lead the Upper Tribunal to a different conclusion than the FtT.

13. I have been provided with Country Information and Guidance summary (Pakistan) - February 2015. It appears from this that Sectarian attacks on Shia Muslims and other minorities are common place in Pakistan. Security laws enshrining major powers to the security forces do not help the Shia community and discrimination and persecution are consequences of this. The law appears to be applied in an arbitrary way and arbitrary arrest and detention occurs more often than should be the case. The protections enshrined in law are unfortunately far from the reality for many minority groups. The police do not always achieve the high standards which ought to be expected of them.

14. At the hearing the appellant did not maintain the request in the correspondence for a playing of a video during the Upper Tribunal proceedings.

15. Following the earlier hearing I explained (at paragraph 25 of my decision) that it was necessary to set aside the findings and decision in relation to the FIRs and any findings consequential thereof. In coming to the result of this analysis, it may be that the appellant no longer qualifies as a refugee/person in need of human rights protection in the UK. I indicated in paragraph 24 of my earlier decision that it will be necessary to revisit the other findings in the case when the document verification reports have been fully considered. I now turn to consider those documents.

16. I have looked carefully at the FIRs and the corresponding DVRs. I have not found this an easy process as the numbers on the respondent's supplementary bundle index did not match up. This was a case apparently crying out for a straightforward schedule indicating the grounds for each complaint cross referring to relevant documents. Nevertheless, I have successfully identified which number relates to which FIR. Given the serious allegations of forgery that have been made, it is unsurprising that the identity of security personnel in Pakistan have not been revealed. In addition, it is common in these cases not to reveal details of the document verification process since this might reveal forgery methods to the other party. It would have been open to the respondent to request a hearing in private where these methods could have been revealed in greater detail or for the appellant to request this to be done. This did not take place in this case and, therefore, it is necessary to consider whether the criticism of the respondent as to the lack of clarity as to the identity of some of the officials involved with the investigation on the respondent's behalf is justified. It needs to be asked whether sufficient detail was given. Further, I have carefully looked at each of the FIR's with the equivalent DVR's. There is a common theme. For example, the FIR at 57-002008 it is said to relate to an incident on 12 February 2008 but it has been revealed that the documents concerned were forgeries/non-genuine. The DVR correctly corresponds to the Masti Gate Police Station. In incident 1056/2011, which took place on 12 August 2011, also correctly refers to the Allama Iqbal Police Station. It confirms that no registration number of the type contained in the FIR is registered and that it was forged or non-genuine. The document verifier had extensive experience. In relation to 997/2007, for example, which relates to an incident on 17 December 2007, this also refers to the correct police station (Mochi Gate Police Station in Lahore). Again, the number was not registered and the forged and non-genuine warrant and summons were referred to. Ms Hassan identified discrepancies or possible discrepancies in relation to some of the DVRs. For example, she pointed out that the incident 1013 of 2002 of 22 December 2002 had been reported to the Gowal Mandi Police Station in Lahore. However, an official of the Allama Iqbal Town Police Station Lahore, had been contacted. There may a perfectly innocent explanation for this, for example, relating to the organisation with the Lahore Police Divisions. This could have been raised with the respondent by way of a request for information, if desired.

17. I accept that the contents of the DVRs are hearsay evidence with unidentified officials from different police stations in Pakistan. I also accept that Ms Hassan has raised doubts over some of these DVRs. However, there is a striking consistency throughout the DVRs and the FIRs are of questionable authenticity. The fact remains that numerous documents relied on by the appellant appear to have been forged Furthermore, as I have suggested, the Immigration Liaison Officer appeared to have relevant experience of dealing with such forgeries.

18. The respondent had the burden of showing on a balance of probabilities that the FIRs were unreliable. I am satisfied that the respondent has discharged this burden. It must follow that less weight should attach to those documents or they should be disregarded altogether. It seems most unlikely that different police stations in different parts of Lahore should reach the same view as to the non-genuine nature of the FIRs.

19. During the case the appellant has not been able to provide any evidence of conspiracy between the respondent and the Pakistan police. At paragraph 18 of her decision, the Immigration Judge commented on the lack of evidence of conspiracy. There is no evidence to back up the assertion that the document verification process was inadequate. I see no reason why the documents produced by the respondent should not be documents that should be given weight. In the circumstances I am satisfied the respondent discharged the burden of proving that the DVRs can be relied upon. This means that the decision was reached on the basis of a flawed assessment of an important piece of evidence provided by the respondent.

Article 8 rights

20. An additional point is raised in the grant of permission. This was not addressed fully at the hearing. It related to the failure of the Immigration Judge to properly consider the effect of Section 117B of the Nationality, Immigration and Asylum Act 2002. That section provides for a number of public interest considerations to apply to assessments under Article 8 of the ECHR.

21. It does not appear that the appellant's human rights under Article 8 outweighed all other considerations. The appellant had been in the UK for ten years and had had two children since arriving in to the UK. The Immigration Judge correctly pointed out that their welfare was a primary consideration under Section 55 of the Borders Citizenship and Immigration Act 2009. However, it had to be balanced against the respondent's duty to enforce effective immigration control. Additionally, the children were quite young (approximately 8 years old at the date of the hearing) and the appellants could, if they wished, return as a family unit to Pakistan. Indeed, there was every prospect that this is what would happen. In the circumstances I am not satisfied that the Immigration Judge was right to conclude that the circumstances were exceptional so as to require the respondent to allow the appellant and his family to continue their private or family life in the UK as opposed to in Pakistan.

Conclusions

22. I have concluded that the incidents the First Appellant says he reported to the Pakistan police either did not in fact take place or, if they did take place, they were not reported to the police. Therefore, there is no adequate evidence that the police had a proper opportunity to investigate/prosecute the offenders concerned. The Immigration Judge made favourable credibility findings. However, it seems that her favourable findings were fundamentally undermined by this evidence. Accordingly, having carefully re-considered the evidence in the case, including any evidence filed in accordance with my directions following the hearing on 21st March 2016, I have decided to re-make the decision which is to dismiss the appellants' appeal against the respondent's decision to refuse the appellants refugee status in the UK. The other findings made by the Immigration Judge cannot be allowed to stand in the light of my decision in relation to the DVRs. I find that the appellants are not refugees and that the family are not entitled to refugee status.

24. The Immigration Judge rightly rejected the claim for humanitarian protection.

25. It follows that the claim under Article 3 of the ECHR ought also to have been rejected by the Immigration Judge and I find that the appellants would not be subject to inhuman and degrading treatment in Pakistan.

26. The claim under private or family life in the UK also fails because the respondent has successfully invoked Article 8(2) of the ECHR and the appellant can continue his family life with his wife and children in Pakistan.

Notice of Decision

The appeal against the decision of the FtT by the respondent is allowed. I substitute the decision of the Upper Tribunal which is to dismiss the appeal by the appellant against the respondent's refusal of the refugee claim/human rights claim.

An anonymity direction was made by the FTT and I see no reason to alter that direction. Accordingly, the direction at the end of that decision stands.

Signed Date 24.7.2016

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

No fee was payable in this case and the decision by the FTT to make a fee award stands.

Signed Date 24.7.2016

Deputy Upper Tribunal Judge Hanbury