Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/06881/2015
AA/06883/2015
AA/06885/2015
AA/06886/2015
AA/06888/2015
AA/06893/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 6 September 2016
On 12 October 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

S A H R (1)
Z S A (2)
Z A (3)
A M (4)
A A (5)
Z A (6)
(ANONYMITY DIRECTION MADe)
Respondents

Representation:
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondents: Ms C Grubb instructed by Qualified Legal Solicitors

DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended) in order to protect the anonymity of the respondents. This order prohibits the disclosure directly or indirectly including by the parties of the identity of the respondents. Any disclosure and breach of this order may amount to a contempt of court. This order shall remain in force unless revoked or varied by the Tribunal for court.
Introduction
2. Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
3. The appellants are a family and are citizens of Pakistan. The first and second appellants (A1 and A2) are aged 44 and 39 respectively and are married. The remaining appellants (A3, A4, A5 and A6) are their children. A1 and A2 also have a further child who is not a party to these proceedings.
4. The appellants arrived at Heathrow Airport on a flight from Lahore, Pakistan on 8 February 2014. They were in transit to the USA but entered the UK. They claimed asylum. The principal appellant was A1 and, in effect, the claims by his family were dependant upon his claim.
5. A1 claimed that his family was a prominent Shi'a family in Pakistan and that his family had been the target of persecution by Sunni extremists and that he would be at risk on return. Further, A1 claimed that he was wanted by the Pakistani authorities as he was alleged to have been involved in an attack upon the leader of the Sipah-e-Sahaba on 22 August 1994 when two of his bodyguards were killed. The appellant alleged that he had been added to the original indictment of the trial of those involved which took place in 2005 and that if he returned to Pakistan he would be arrested and would face an unfair trial, conviction and imprisonment by a military court.
6. On 30 March 2015, the Secretary of State refused A1's claim for asylum along with the other appellants.
The Appeal to the First-tier Tribunal
7. The appellants appealed to the First-tier Tribunal. The appeal was heard over two days by Judge A D Troup. Judge Troup rejected the claim that the appellants (in particular A1) would be at risk of persecution as a result of being part of a prominent Shi'a family in Pakistan.
8. However, Judge Troup found that A1 was wanted by the Pakistani authorities and was likely to be arrested and tried for murder before a military court in Pakistan. The circumstances of that trial were reasonably likely to be unfair and that, as a result, A1 had established there was a real risk that he would be persecuted because of his imputed political opinion or religion. On that basis, Judge Troup allowed the appeals of each of the appellants.
The Appeal to the Upper Tribunal
9. The Secretary of State sought permission to appeal to the Upper Tribunal. Permission was initially refused by the First-tier Tribunal on 13 January 2016 but on 28 January 2016, on renewal, the Upper Tribunal (UTJ Coker) granted the Secretary of State permission to appeal.
10. On 2 March 2016, the appellants served a Rule 24 response seeking to uphold Judge Troup's decision to allow the appeals on the basis that there was a real risk that A1 would face persecution as a result of an unfair trial before a military court in Pakistan arising out of the attack and killing of two bodyguards on 22 August 1994.
11. Thus, the appeals came before me.
The Secretary of State's Case
12. In his oral submissions, Mr Richards, who represented the Secretary of State relied upon the grounds upon which permission to appeal was granted. The grounds are relatively concise and are as follows:
"The Judge of the First-tier Tribunal has made a material error of law in the Determination.
It is submitted that the FTTJ has made a number of errors in this determination which are material and render the determination unsafe.
The FTTJ has singularly failed to address matters which were in conflict between the parties. In particular he has failed to adequately explain why at Para.49 he accepts the HO position that it was improbable that the appellant could have been deported from Kuwait to Pakistan without the Pakistani authorities being aware of his arrival, but then accepts from the expert that he was wanted by the Pakistani authorities and on his own account was able to enter the country unnoticed.
It is submitted that the acceptance of the expert evidence to the effect that the appellant was a wanted man in Pakistan does not explain how he was able to re-enter the country on deportation from Kuwait. This was a point raised by the S of S on refusal and also clearly raised at the hearing by the presenting officer.
It is submitted that the FTTJ has not properly engaged with this question.
Further, the FTTJ accepts from the expert (and it is well publicised) that cases involving terrorism in Pakistan are now heard by Military Courts and that this means that the appellant is unlikely to receive a fair trial. It is submitted that the FTTJ has failed to acknowledge that the appellant claims to have been charged with murder allegedly committed in 1994 in the context of sectarian violence and why this matter would now be dealt with by a military court. This is especially so given that the FTTJ has accepted the validity of a court judgment from the civil courts in Pakistan stating that the appellant, when located and arrested, would be tried by that court.
Having mentioned documents it is further submitted that the FTTJ has not engaged with the judgment in Tanveer Ahmed at all in this determination in terms of looking at the evidence as a whole before deciding whether or not the appellant has shown that his documents can be relied upon. This is important because the FTTJ has clearly rejected the appellant's evidence that he was at risk on account of religious persecution in Pakistan, and the expert's evidence was that the appellant could not be found on the current "most wanted" list in Pakistan.
It is submitted that these material errors render the determination unsafe and permission to appeal is requested."
13. Mr Richards indicated that he had nothing further to add to the grounds other than to submit that the issues were whether the judge had properly resolved conflicts in the evidence and had given adequate reasons for his findings.
The Issues
14. The grounds raise, essentially, three points challenging the judge's findings that A1 was wanted by the Pakistani authorities as he claimed and that he would face an unfair trial before a military court.
15. First, the judge had failed adequately to explain why he accepted that it was improbable that A1 could, as he claimed, have been deported from Kuwait (where he had lived from June 1997) to Pakistan on 18 August 2013 without coming to the attention of the Pakistan authorities if he was wanted whilst accepting the expert evidence that he was, in fact, wanted by the Pakistan authorities.
16. Secondly, the judge had failed properly to assess the reliability of the documents, in particular the FIRs and a copy of the High Court judgment relating to those charged arising out of the attack on 22 August 1994 and naming A1 as a "proclaimed offender". In particular, it is argued that the judge failed to consider documentary evidence in the light of the Judge's rejection of A1's claim to be at risk of persecution as a prominent member of a Shi'a family.
17. Thirdly, the judge failed to deal with the evidence that A1 would be subject to a trial before the civil court in Pakistan, having accepted the validity of the High Court judgment, by accepting the expert's evidence that A1 was likely to be tried before a military court and was, as a result, unlikely to receive a fair trial.
The Appellants' Case
18. Ms Grubb, on behalf of the appellants, relied upon the Rule 24 notice. She submitted that the substance of the Secretary of State's challenge was to the judge's acceptance of the expert's evidence. In short, she submitted that there would need to be good reason to depart from the expert opinion purporting A1's claim to be wanted by the Pakistan authorities and to be at risk of prosecution before a military court. She pointed out that the Secretary of State did not seek in her grounds of appeal to argue that the expert report was flawed. There was, therefore, no proper basis on which it could be said that the judge was not entitled to rely upon it.
19. As regard the Secretary of State's first point, Ms Grubb submitted that the judge had not, as the grounds claim, stated that it was "improbable" that A1 could enter Pakistan unnoticed if he was wanted but rather had stated that at "first sight" it was improbable. Having considered the expert report, the judge had adequately reasoned that even if his use of an agent was "at first sight" improbable, that did not undermine the clear and unequivocal evidence of the expert.
20. As regards point 2, Ms Grubb submitted that the judge was entitled to rely upon the expert report that since 2015, and therefore since the original High Court proceeding in 2005, the nature of the offence alleged against A1 would result in a trial before a military court in Pakistan.
21. As regards point 3, Ms Grubb submitted that the judge was entitled to rely upon the expert evidence that the FIRs and High Court documents were genuine. The expert, in her addendum report, had through her assistant verified the authenticity of the documents and the judge was entitled to rely upon them on the basis that they were genuine.
Discussion
22. Central to A1's claim that he was at risk of prosecution for murder and would face an unfair trial on return it was, of course, that he was wanted by the Pakistan authorities and that he had been named in a number of FIRs and as a 'proclaimed offender' in the original indictment in which a number of others were tried in 2005 for the attack on 22 August 1994.
Point 1
23. The judge had before him two reports from Mrs Uzma Moeen, an expert (and her expertise is not challenged) in which she set out enquiries that had been made in relation to the FIRs and the High Court documents. These are summarised at paras 5-9 (the FIRs) and 10-18 (in relation to the court documents). The expert's clear and unequivocal view is that the documents are genuine. Judge Troup referred extensively to the expert's report and, in particular for this purpose, her conclusion in relation to the genuineness of the document (see paras 38-40 of his determination).
24. Judge Troup dealt with the Presenting Officer's submission that it was improbable that A1 was wanted if he was able to pass unnoticed by the authorities into Pakistan when he was deported from Kuwait at paras 48-50 as follows:
"48. Mr Olphert went on to submit that it was less than probable that A1 could have entered and exited Pakistan unnoticed by the authorities and his explanation that he had used an agent on each occasion was not credible. Even if it were accepted that he used agents on each occasion (which it is not), he could not possibly have used an agent when deported from Kuwait: the authorities in Pakistan would have been aware that A1 as a Pakistani national was being returned and would thus have been alert to A1's arrival.

49. I would agree with Mr Olphert that at first sight it is improbable that A1 could have been deported from Kuwait to Pakistan without the Pakistani authorities being aware of his arrival. I have found however, from the expert evidence, that A1 is wanted by the authorities in Pakistan, and yet on his account was able to enter the country unnoticed.

50. At paragraph 76 of her first report (page 406 of bundle 2), Mrs Moeen said that she had "verified his ? details on the FIA database" (pages 291-294 of bundle 1) although by paragraph 20 of her second report (page 5 of bundle 3) Mrs Moeen had apparently been unable to obtain express confirmation that A1 was registered on the Most Wanted Terrorists list of the Federal Investigation Agency. However, reading the documents at pages 291-294 together with the FIR and the judgment, both naming A1, I find that it is realistically likely that A1 is wanted by the authorities in Pakistan. It follows from that finding that A1 used some means of avoiding detection when arriving in or leaving Pakistan. As unlikely therefore as his claimed use of agents may appear at first sight, I find that it does not undermine the credibility of his account as a whole."
25. Clearly, the judge had well in mind what was being said by the Presenting Officer. Contrary to what is said in the grounds, at para 49 the judge did not wholly accept the Presenting Officer's submission. As he makes clear the judge only considered it "at first sight" to be improbable. The case of A1 was that he had used an agent to avoid detection. The judge referred to this at para 50. The judge had to consider the argument put forward by the Presenting Officer in the light of all the evidence including the expert's evidence which the judge accepted. It was properly a matter for the judge whether he considered the "at first sight" improbability put forward by the Presenting Officer sufficient to undermine the expert's evidence as to the genuineness of the documents which were only consistent with a view that A1 was wanted by the Pakistan authorities as he claimed. Having grappled with the arguments, the judge was entitled to take the view that his "at first sight" view of the improbability of A1 entering Pakistan unnoticed if he was wanted was not sufficient to displace the clear and unequivocal evidence from the expert that the documents, showing that A1 was in fact wanted were genuine and substantiated A1's claim. In my judgment, the judge's finding was not irrational or otherwise unsustainable on the basis of the evidence before him and for the reasons he gave in paras 48-50 of his determination.
Point 2
26. The judge considered the expert's evidence as to whether, if wanted, A1 would face a fair trial on return. The Secretary of State's position was that A1 would face a trial before a civil court, as had others in 2005 when a number were acquitted. A1's case based upon the expert evidence was that now, as a result of changes to the Pakistan Constitution in January 2015, A1 would face prosecution before a military court which created a real risk of an unfair trial and, as a consequence, persecution by the state based upon his imputed political opinion or religion. At paras 46-47, Judge Trump dealt with the expert's evidence and this issue as follows:
"46. ? I note however from paragraph 77 of Mrs Moeen's report (page 406 of bundle 2) that military courts have been introduced since the beginning of 2015 which do not, in my opinion, offer a fair trial. Thus, since the decision of the Upper Tribunal in AW was made nearly five years ago, there is expert evidence before me that suggests the situation now is different from that at the time of their decision. At page 406, Mrs Moeen says:
'77 In reply to the query whether it is likely that he will receive a fair trial, if his cases come [before] the courts in Pakistan now, I must point out that all cases relating to terrorist activities, including sectarian violence and killings, are tried in Military Courts in Pakistan now. It is to be noted that these Military Courts are set up after passing of the Constitution (21st amendment) Act 2015 on 7 January 2015. It is also well known that establishment of these Military Courts by the Parliament was challenged in the Supreme Court of Pakistan due to non-transparency of procedure and speedy trial. However, Pakistan's Supreme Court allowed military trials of suspects in terrorism cases on 5 August 2015. These Military Courts can sentence civilians to death in speedy trials held in secret without due process or the oversight of human right experts, the media or the public. In my considered view, the establishment of Military Courts for trial of civilians amounts to a parallel system for all intents and purposes which is wholly contrary to the known existing judicial system having been set up under the Constitution and the law. Therefore, in my view, once returned to Pakistan, [A1's] return will not remain a secret for an extended period of time and he will be arrested by the authorities due to his alleged involvement in sectarian violence and killing. Hence his trial under the newly established speedy trial Military Courts, which I do not see as a fair prospect for a man who maintains his innocence and fears to be targeted by the authorities and anti-Shia extremists due to his Shia faith in Pakistan.'
47. Mr Olphert submitted in closing that there is a 'functioning judicial system' in Pakistan. He pointed to the judgment in the murder trial in which fourteen of the sixteen defendants were acquitted, which would not have happened, he said, if the trial had been less than fair. Equally, on A1's evidence his father was arrested on 3 November 1994 (paragraphs 24-25 of his statement at page 14 of bundle 1) but was acquitted by a magistrate as appears from the judgment at pages 102-103 of bundle 1 on 24 December 1995. I have duly noted those examples of the 'functioning judicial system' in Pakistan but it is A1's case that he would not be tried by the anti-terrorism court in Lahore like the sixteen defendants in the murder trial, or tried by a magistrate like his father, but rather by the Military Courts described by Mrs Moeen. I have to conclude from the evidence of the expert that it is less than realistically likely that A1 would in such circumstances receive a fair trial and would thus be at risk of persecution by state actors by reason of his imputed political opinion or religion."
27. The expert evidence was clear, despite the fact that others allege to have been involved in the attack in August 1994 had been tried before a civil court, the law in Pakistan had moved on and acts of terrorism "including sectarian violence and killings" would now be tried before military courts with the prospect of an unfair trial. It was not suggested before me that if A1 were tried before a military court he would not be at risk of an unfair trial and the consequences as claimed. The judge was entitled to accept the expert evidence that, despite the earlier prosecution in the civil courts, there was a real risk that A1 would be prosecuted in a military court and with the consequent risk of an unfair trial.
Point 3
28. Finally, in relation to the Secretary of State's challenge to the judge's acceptance of the documents, in particular the FIRs and court documents, the expert report was, again, clear and unequivocal, based upon verification with the Pakistan authorities, that they were genuine. If they were genuine, then the judge was entitled to rely upon their contents. In a case where the genuineness of a document is not raised nor can be established, in order to determine whether the documents are "reliable" the accepted approach is to consider them together with all the evidence in the round (see Tanveer Ahmed [2002] Imm AR 318). Perhaps, unusually, here the judge had clear and unequivocal expert evidence that these documents were genuine. The Secretary of State has not put forward any argument that the expert's report is in any way flawed in its assessment and conclusions.
29. The Secretary of State relies, in her grounds, upon the fact that the judge did not take into account that he had rejected the appellant's claim based upon being part of a prominent Shi'a family. However, it is clear from the judge's reasoning at paras 53-61, this was not based upon any adverse credibility finding. At worst, the judge concluded that A1 had "greatly exaggerated his importance and the consequences of his public displays of devotion" (see para 58). The judge's assessment was that the facts did not disclose a real risk of persecution and that in any event there was a sufficiency of protection from the Pakistan authorities to protect Shi'as. None of this undermined the expert evidence that the documents were genuine.
30. The grounds also rely upon the fact that the expert concluded that the appellant could not be found on the current "Most Wanted" list in Pakistan as he claimed. But in fact what the expert said at para 20 of her addendum report was that the Pakistan authorities had refused to verify whether A1 was in fact the man named as the "no 11 in the Most Wanted List of the FIA". There was no positive evidence that he was not included on that list, just as there was no positive supporting evidence that he was included on the list. I see no basis upon which that being the position it can be argued that the judge was not fully entitled to accept the expert's evidence, which was clear and unequivocal, that the relied upon documents were genuine.
31. For these reasons, I reject the Secretary of State's grounds of appeal.
Decision
32. For the above reasons, the First-tier Tribunal's decision to allow the appellants' appeals on asylum grounds did not involve the making of an error of law. That decision, therefore, stands.
33. Accordingly, the Secretary of State's appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal
Date: 12 October 2016