Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05235/2013
AA/05430/2013
AA/05431/2013
AA/05432/2013
AA/05433/2013

THE IMMIGRATION ACTS

Heard at Newport
Determination Promulgated
On 22 November 2013
On 12 December 2013

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

SA
AR
SS
SS
TS
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr H Dieu instructed by Avon and Bristol Community Law Centre
For the Respondent: Mr I Richards, Home Office Presenting Officer

DETERMINATION AND REASONS
1. This appeal is subject to an anonymity order made by the First-tier Tribunal pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Neither party invited me to rescind the order and I continue it pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
Introduction
2. The appellants are citizens of Pakistan who were born respectively on 16 April 1966, 20 June 1973, 1998, 2002 and 2006. The first and second appellants are married and the remaining appellants are their children. The first appellant arrived in the United Kingdom on 31 March 2006 with a student visa valid until February 2007. The first appellant obtained further extensions of his leave, first as a student and latterly as a Tier 1 Migrant until 15 September 2010. In February 2008, the first appellant returned to visit his family in Pakistan before returning to the UK on 9 March 2008. His wife and children obtained visas as dependents in June 2009 also valid until 15 September 2010. The appellant’s family came to the UK. All the appellants overstayed following the expiry of their leave. On 16 November 2012, the first appellant claimed asylum with his family as dependents.
3. The basis of the first appellant’s claim was that he was at risk of persecution as a Christian in Pakistan. He claimed that he had attended a Methodist Church in Karachi and that he had preached. He claimed that he struggled to obtain a job because he was discriminated against because of his religion. In fact, the first appellant worked for 10 years in Karachi as a nurse although his jobs were intermittent. He stopped working in February 2006 because of the situation in Pakistan. The appellant claimed that on 20 February 2006 he was speaking to a man that he had met at the hospital who was upset about his mother and, whilst he was “sharing a word of God”, he was approached by some men who surrounded him and beat him. The first appellant says that he was attacked because he was speaking about God as a Christian.
4. In a decision dated 16 May 2013, the Secretary of State rejected the first appellant’s claim for asylum and those of the other appellants as his dependents. Their claims rely entirely upon the outcome of the first appellant. The Secretary of State accepted that the appellant was a national of Pakistan and that he was a Christian. However, the Secretary of State did not accept that the appellant had been attacked by a group of men in 2006 as he claimed. The Secretary of State concluded that the appellant would not be at risk of persecution on return to Pakistan. In addition, the Secretary of State concluded that the Pakistan authorities would, in any event, provide a “sufficiency of protection” and that the first appellant could safely and reasonably internally relocate within Pakistan. Both of those findings (to which I will turn shortly) appear to be premised on the assumption that the first appellant’s account had been rejected.
The First-tier Tribunal’s Decision
5. The appellants appealed to the First-tier Tribunal. The appeal was listed for hearing before Judge Page on 16 July 2013. The appellants did not appear at that hearing and were not represented. I was told that, although the appellants had legal representation previously, by the time of the hearing they were assisted by Refugee Action who could not appear on their behalf. Judge Page proceeded to hear the appeal in the appellants’ absence. Although I was told that the appellants had never been informed by Refugee Action of the need to attend the hearing, no issue is taken in relation to that in the grounds of appeal. There is nothing before me to contradict Judge Page’s view that, in all the circumstances, it was appropriate to deal with the appeal in the appellants’ absence. In fact, the respondent’s representative (then as now) Mr Richards invited Judge Page to determine the appeal on the papers and it does not appear that any submissions were made to the Judge.
6. The Judge made three findings which led him to dismiss the appellants’ appeals on all grounds.
7. First, he appears to have rejected the first appellant’s account. At para 15, he set out the respondent’s case concerning the application of s.8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 as follows:
“15. The respondent has refused the claims made under Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 because the first and second appellant failed to apply for international protection at the earliest opportunity so this seriously affected their credibility in the respondent’s opinion. It was noted that the first appellant arrived in the UK in March 2008 with valid leave until September 2010. He did not claim asylum at the earliest opportunity.”
8. Picking up on that at para 19 the Judge said this:
“19. The immigration history of the first appellant and these timely asylum claims demonstrate that these appellants have used the asylum route to obtain an immigration history in the United Kingdom when no other options was (sic) available.”
9. At para 20, the Judge concluded:
“[I] find that they have falsely claimed asylum as a means of obtaining an immigration status in the United Kingdom.”
10. Secondly, the Judge found that the appellants could return to Pakistan where there would be a sufficiency of protection. At para 16 the Judge said this:
“16. It was accepted by the respondent that the first appellant was a national of Pakistan and that he is a Christian. It was not accepted that he was attacked by a group of men whilst talking to a relative of one of his patients because he has not provided any medical reports to determine the cause of his back injury. I am not satisfied that this adds very much to the issues in the appeal one way or the other. There is a sufficiency of protection available in Pakistan to those that are assaulted in the street, as the respondent noted.”
11. Thirdly, the Judge found that the appellants could internally relocate within Pakistan. At para 17 the Judge said this:
“17. The appellant claimed a fear of the authorities in Pakistan, saying he would not be able to relocate safely. I do not see why the first appellant could not relocate to a different area away from people that he thinks may remember him or indeed seek the protection of the police from those that would assault him. In Pakistan Islam is the majority faith and religious minorities do suffer from discrimination but this does not amount to persecution. The first appellant is someone who obtained qualifications and experience and pursued a career in the health sector in Pakistan. He travelled in and out of Pakistan a number of times without difficulty. The nature of his employment can be found in every town and city throughout Pakistan, as the respondent has said in the refusal decision. There appear to be no reasons why the first appellant could not relocate away from where he lived before to avoid the protagonists in his asylum story. “
12. At para 18, the Judge drew the threads of his decision together as follows:
“18. The respondent concluded that it had not been established – upon the face of the first appellant’s claim – that he had an arguable case that he would face persecution or serious harm if returned to Pakistan with his family. I find myself in agreement with the respondent’s conclusions in determining this appeal. There is no arguable case to sanctuary in the United Kingdom. Any discrimination that the first appellant or members of his family would face upon return can be adequately addressed by the authorities in Pakistan. There is no obligation on the United Kingdom to provide sanctuary to the appellants in the United Kingdom because they do would not need it – even if their story was true.”
Grounds of Appeal to the Upper Tribunal
13. The appellants sought permission to appeal to the Upper Tribunal on five grounds. The Judge failed
(1) to make a finding as to whether the attack on the first appellant had occurred on 20 February 2006;
(2) to consider all the evidence in the round in reaching an adverse credibility finding and had relied too heavily upon the appellants’ immigration history and s.8 of the 2004 Act;
(3) to give adequate reasons why the appellants would have a “sufficiency of protection” in Pakistan;
(4) to give adequate reasons for finding that internal relocation was open to the appellants; and
(5) to take into account the “best interests” of the child appellants.
14. On 14 August 2013, the First-tier Tribunal (DJ J M Lewis) granted the appellants permission to appeal to the Upper Tribunal. On 29 August 2013, the Secretary of State served a rule 24 notice seeking to uphold the Judge’s decision on the basis that the Judge had fully considered the evidence and had reached proper findings dismissing the appeal. Thus, the appeal came before me.
Discussion
15. Mr Dieu, who represented the appellants, submitted that his principal point was that the Judge had failed to make a finding on the material issue of whether the first appellant had been attacked (as he claimed) on 20 February 2006.
16. This submission is, with respect, wholly untenable. It is clear that the Judge rejected the appellant’s account in total, including that he had been attacked on 20 February 2006. At para 20, the Judge clearly rejected the appellant’s account stating that:
“[I] find that they have falsely claimed asylum as a means of obtaining an immigration status in the United Kingdom.”
17. I reject Mr Dieu’s first submission. The Judge clearly rejection the appellants’ evidence and credibility and, as a consequence, implicitly did not accept that the first appellant had been attacked as he claimed.
18. In any event, as I will identify shortly, the Judge concluded that the appellants could internally relocate even if he had been attacked by the group of men in February 2006. If that finding stands, any failure by the Judge (which I do not accept) to reach a finding in relation to the incident cannot be material to the outcome of the appeal and justify setting aside his decision.
19. Secondly, Mr Dieu submitted that the Judge had placed improper weight upon the first appellant’s immigration history and the timing of the appellants’ asylum claims and relying on s.8 of the 2004 Act to reject the first appellant’s credibility. It is worth noting that this argument is premised on the Judge having made an adverse credibility finding. It is wholly inconsistent with Mr Dieu’s first submission.
20. In reaching a credibility finding, the Judge was required to consider all the evidence in the round including factors “potentially” damaging of credibility falling within s.8 of the 2004 Act (see, JT (Cameroon) v SSHD [2009] Imm AR 131). As the Court of Appeal pointed out in JT, s.8 does not affect the obligation of the Judge to reach his or her own conclusion upon the credibility of the claimant.
21. Here, it is not clear what it is said that the Judge omitted to consider in addition to the first appellant’s immigration history and the timing of the asylum claims. The first appellant’s account was a relatively straightforward one. The Judge accepted that the first appellant was a Christian. The circumstances were that the first appellant was relying on an incident that he said occurred on 20 February 2006 which resulted in injury to him. The first appellant did not inform the police and shortly after on 31 March 2006 he came to the UK to study. He did not claim asylum. He stayed in the UK until February 2008 when he returned to Pakistan. Despite claiming to have regularly preached in public, the first appellant gave no further instances of attacks like the claimed incident in 2006. The appellant returned to the UK in March 2008 and again did not claim asylum. He only claimed asylum 4½ years later in November 2012.
22. In my judgement, the Judge did not distort the application of s.8 of the 2004 Act. It seems to me that the Judge did take into account all the circumstances of the first appellant’s case but the immigration history and the timing of the asylum claim was a matter which the Judge was entitled to take into account as of some significance in assessing the credibility of the appellant’s account.
23. The Judge’s reasons were brief but, in my view, were adequate to support his rejection of the first appellant’s account. In any event, even if the Judge’s adverse credibility finding could not stand, that error would not be material if his finding in relation to internal relocation stood.
24. Thirdly, therefore, I turn to the Judge’s findings in relation to “sufficiency of protection” and internal relocation.
25. Mr Dieu submitted that the Judge failed to give adequate reasons given that the Secretary of State in her refusal letter had accepted that if the first appellant’s account was true then he would be unable to obtain a sufficiency of protection from the Pakistan authorities and he would not be able to relocate internally.
26. As regard “sufficiency of protection”, the Secretary of State said this at para 33 of the refusal letter:
“33. Had your claim for asylum been accepted in full, it is noted that you have a fear of the authorities in Pakistan and as such would be unable to rely on the protection of the Pakistan state authorities. However, you (sic) claimed to be at risk of arrest in Pakistan has not been accepted for the reasons already given. As such, it is not considered that you have a need for State protection but it has been considered on your behalf nevertheless.”
27. Having cited a passage from the decision in Horvath v SSHD [2001] 1 AC 489 and the OGN for Pakistan (at paras 34 and 35), the Secretary of State concluded as follows:
“36. It is noted that you have no previous history of arrest or difficulties with the authorities (SI) and that you are a person who has risen in your career and has been able to seek higher education. You do not have the profile of a person who is generally the subject of discrimination, nor do you match the profile of a person who is unlikely to be able to access state support if needed anymore than any other non-practising Christian.
37. You have not shown yourself to be a person who is unable to seek protection of the authorities in your country and so it is considered that you have an alternative security system that is willing and able to offer you protection.”
28. It would appear that the Secretary of State’s view is premised on a rejection of the appellant’s account. Had the appellants’ appeals turned upon the issue of “sufficiency of protection”, I am far from satisfied that the Judge’s one line finding in para 16 that, “….[t]here is a sufficiency of protection in Pakistan to those that are assaulted in the streets, as the respondent has noted”, would be an adequately reasoned finding justifying dismissal of the appellants’ appeals.
29. However, it is not a finding upon which the outcome of the appeals does, in fact, turn. First, there is the adverse credibility finding which the Judge was, for the reasons I have already given, entitled to reach. Secondly, I do not accept that the Judge’s finding that the first appellant could internally relocate is flawed in law.
30. At para 17 (set out above), the Judge concluded that there were “no reasons” why the first appellant could not relocate away from the place where he lived in order “to avoid the protagonists in his asylum story”. To the extent that the first appellant’s claim was that he would again be targeted by the same group who attacked him in February 2006, that finding seems to me to be wholly unassailable. There was no evidence as to who these individuals were and there was no evidence that they had any continuing interest in the first appellant or that their reach (even if they did have a continued interest) would extend beyond the place where the appellant lived and the incident is said to have occurred. Importantly, there was no evidence of any continued interest in the first appellant or his family after the incident in February 2006. The Judge took into account the first appellant’s qualifications, experience and career in the health sector in Pakistan and that he had travelled in and out of Pakistan on a number of occasions without difficulty. The appellant’s wife and children had experienced no difficulties. Although the Judge did not specifically mention the interests of the first and second appellants’ young children aged 14, 10 and 6 at the date of the hearing, there is little doubt that their best interests would be to live with their parents in their country of nationality. Although the grounds refer to the discrimination against Christians and the impact of the Blasphemy laws, the first appellant while making reference to the Blasphemy laws at question 2 of his asylum interview, had not had any problems arising from those laws despite his claim to have preached for a number of years.
31. Whilst the Judge’s reasons are relatively brief, I am not persuaded by the grounds or by Mr Dieu’s supporting submissions that the Judge’s decision should not stand. The Judge’s findings in respect of credibility and internal relocation were open to the Judge on the evidence and no material error of law has been established.

Decision
32. For these reasons, the First-tier Tribunal’s decisions to dismiss the appellants’ appeals did not involve the making of an error of law such that the Judge’s decision should be set aside. Those decisions dismissing the appeals stand.
33. The appellants’ appeals to the Upper Tribunal are dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date: 4th December 2013