Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA052052015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7th June 2016
On 14th June 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MS Binal Dipakkumar Patel
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Turner, Counsel
For the Respondent: Mr E Tufan (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal by the Appellant with permission granted by a Judge of the First-tier Tribunal. The appeal before the First-tier Tribunal came before Judge Ross sitting at Harmondsworth on 1st March this year. On that occasion she was represented, as now, by Mr Turner of Counsel.
2. The Appellant is a national of Kenya born on 27th July 1989. She came to the UK in July 2008 as a student. She is now married to a Pakistani national who entered the UK in May 2007, also as a student. He at the time of the First-tier hearing had no leave to be in the UK and indeed had been served with papers as an overstayer.
3. The Appellant herself had applied for leave to remain as a student on four separate occasions between September 2010 and March 2011 all of which were refused. In March 2013 she submitted a human rights application which was also refused and then on 18th February 2015 she was served with papers as an overstayer. After that in March 2015 she made an asylum claim. She had a screening interview in March 2015 when she explained that she had converted to Islam and had adopted a Muslim name, Isha Irfan.
4. She said that although she was a Kenyan national she had been born in India and that her husband was from Pakistan. She had left Kenya using her own passport and when asked why she could not return to Kenya she said it was because she had married a Muslim person, she had converted to Islam and her Hindu family did not accept her and she feared that they would kill her.
5. The husband was also interviewed and he said that for similar reasons his own family in Pakistan did not accept his marriage to a Hindu and they would kill him if he returned to Pakistan.
6. The judge set out the basis of the Appellant's claim between paragraphs 2 and 6 of the Decision and then set out the Secretary of State's reasons for refusal from paragraph 7 up to and including paragraph 11. The judge then set out the evidence at the hearing from paragraphs 13 to 18 and in those paragraphs the judge noted the Appellant's claim that her father was a business tycoon very well known in Kenya with lots of contacts and he would find out if she returned.
7. She said that he had been disappointed when she refused to marry the man he had selected. That was a disabled British citizen she did not wish to marry and she explained that having received threats from her family on Facebook between 2011 and 2013 she did not close down that account as she wanted to keep herself up-to-date. Her evidence was she could not be with her husband outside of the UK and considered the UK to be her home. There was no guarantee her husband would be allowed to accompany her to Kenya and she has no contacts in Kenya. Her parents live in a place in the North. She could not relocate to another area because she would be in fear as a result of her family. She also gave evidence that she was pregnant with a baby due in October.
8. The judge also referred to the evidence of the Appellant's husband, Mr Irfan Shahzad. He confirmed that his wife having originally been Hindu, his family did not accept her and that he would be killed if he returned with her to Pakistan. However, it is also noted at paragraph 18 that the husband conceded there was no legal bar to them living in Pakistan but there were the problems over the marriage and corrupt police.
9. The Judge then moved on to his findings which are contained in three paragraphs, 22, 23 and 24, and it is those paragraphs which are the subject of challenge by Mr Turner. The grounds of appeal, specifically at paragraph 7, assert that the judge has made perverse and irrational findings in relation to matters that were material to the outcome, which amounts to a material error of law.
10. As Mr Tufan says, there is a high threshold for perversity and irrationality. There are two points to the arguments put forward by Mr Turner. The first is contained in paragraph 22 and relates to an error in relation to something the Judge says about the Facebook entries. The judge makes a comment in that paragraph that: "I also have concerns about whether the Facebook entries have been created in order to support her claim for asylum." It is pointed out that given her claim for asylum was only made in 2015 and the Facebook entries predated that by some years that could not be the case. Mr Turner argues that taints all of the credibility findings as it is the main basis for the Judge's adverse finding.
11. However, what the Judge also says in that paragraph is that there is evidence from the Facebook entries that the father in Kenya is most upset with her for marrying a Muslim but he did not consider that the evidence demonstrated that the Appellant considered that the threats would be carried out. The Judge considered that if she had thought so she would have changed her Facebook address or closed it. The Judge also found that if she had been genuinely concerned about her position on return she would have applied for asylum soon after she married in 2011 rather than waiting until March 2015.
12. There is then a comment about concerns as to the creation of the entries. However, the Judge carries on to note that the family in Kenya were trying to marry off their daughter to a British person even though that person was disabled and says that suggests there is a fairly strong agenda for the Appellant to obtain residence status in the UK. Mr Turner argues that comment refers to the Appellant's agenda. I disagree. That sentence, it is quite clear to me, relates to the parents' agenda.
13. The Judge goes on to say that the Appellant's credibility is somewhat undermined in relation to her parents' attitude to her because on the one hand she sought to illustrate a dictatorial attitude from her father, saying that when she declined to marry the disabled man he ordered her to come home, but then conceded that that was in fact not correct because he had supported her application to remain in the UK.
14. At paragraph 23 the Judge went on to find there was no reliable evidence that if the Appellant was to return to Kenya with her husband she would not be able to live in another part of the country, away from her parents. The Judge said:- "It is claimed that her father has considerable influence in Kenya but I do not accept that this is the case. He is a local businessman. Kenya is a very large country with a population of over 40,000,000 people. There are substantial cities such as Nairobi with large populations. I do not consider that if the Appellant was to return to Kenya her parents would be aware that she had come back". The Judge also noted that her family had not contacted her since 2014 and there was thus no evidence to suggest that they would still wish to harm her.
15. Mr Turner argued that those findings are speculative and required corroboration, which is not permitted in asylum cases. They are not speculative. They are based on the evidence. The burden of proof is on the Appellant and there was no evidence that she would be unable to live elsewhere in what is a very highly populated large country and the considerable influence and position that her father has, given that it is her father, she ought to have been able to obtain evidence of his high profile.
16. The Judge also notes that Hindus are a very small minority in Kenya, less than 1% of the population, so the Appellant's claim that the Hindus will target her is a matter of no weight. There is a suggestion by Mr Turner that she would be instantly identifiable as someone who has converted from Hindu to Muslim. I do not see why that should be the case, particularly as she has adopted a Muslim name.
17. Mr Turner argues that the findings are simply too brief and inadequate. However, it is not always necessary to make very deep and lengthy findings. If the issues are narrow and straightforward then brief findings suffice and it is the case that in those two paragraphs the judge has adequately dealt with the credibility of the Appellant's claim and the risk to her on return.
18. There was then some discussion over the husband's evidence that he could not live with his wife in Pakistan. However, that is completely irrelevant because what the judge has found is that there is no reason to suggest that the Appellant cannot return to Kenya and arrangements be made for her husband to join her there. Having found that the Appellant would not be at risk then there is no reason to go on to consider whether or not they could live in Pakistan.
Notice of Decision

For the above reasons I find that the Decision of the judge does not contain an error of law material to the outcome and I uphold it. I therefore dismiss the Appellant's appeal to the Upper Tribunal.

No anonymity direction is made.

Signed Date 13th June 2016

Upper Tribunal Judge Martin