Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07724/2014

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 6 December 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

M J
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Neale instructed by Migrant Legal Project
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order given the nature of the appellant's claim as an asylum-seeker. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Background
2. The appellant claims to be a citizen of Pakistan of Hazara ethnicity. He arrived in the United Kingdom in 2007 and claimed asylum. He was removed to Greece under the Dublin II Regulations. He returned to the UK on 17 June 2014 and again claimed asylum. On 23 September 2014, the Secretary of State refused his claims for asylum, humanitarian protection and under the European Convention on Human Rights. On that date also the Secretary of State made a decision to remove the appellant by way of directions to Pakistan.
The Appeal to the First-tier Tribunal
3. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 28 May 2015, Judge A Cresswell dismissed the appellant's appeal on all grounds. Although Judge Cresswell accepted that the appellant was a citizen of Pakistan (despite having previously claimed to be a citizen of Afghanistan) he rejected the appellant's claim to be of Hazara ethnicity and from Quetta in Pakistan, an area in which Hazaras mainly live in Pakistan. Further, in any event, Judge Cresswell concluded that the appellant would, as an Hazara in Pakistan, obtain a sufficiency of protection from the Pakistan authorities and could safely and reasonably internally relocate.
The Appeal to the Upper Tribunal
4. The appellant sought permission to appeal to the Upper Tribunal on three grounds.
5. First, the judge had failed to give adequate consideration to a country expert report from Dr Livia Holden which supported the appellant's claim. Secondly, the judge had wrongly taken into account that the appellant had failed to mention in his screening interview, when asked about what languages and dialects he spoke, that he spoke Hazaragi (wrongly spelt as "Hazaranghi" in the determination) but had, instead, said that he spoke Dari/Farsi Persian. Thirdly, the judge had been wrong to apply the 12-year-old country guidance case of AH (sufficiency of protection, Sunni extremists) Pakistan CG [2002] UKAIT 0682, and had disregarded the more up-to-date evidence including that of Dr Holden, in finding that Hazaras were not at real risk in Pakistan and would obtain a sufficiency of protection.
6. Permission was initially refused by the First-tier Tribunal, but on 23 September 2015 the Upper Tribunal (UTJ Perkins) granted the appellant permission to appeal on all grounds.
7. On 8 October 2015, the Secretary of State served a rule 24 response seeking to uphold the First-tier Tribunal's decision.
8. The appeal was initially listed before the President of UTIAC on 29 September 2016 but was adjourned.
9. The appeal came before me on 6 December 2016.
Discussion
10. On behalf of the appellant, Mr Neale relied upon the three grounds which he developed in his written skeleton argument and oral submissions.
11. I will deal with each ground in turn.
Ground 1
12. Mr Neale submitted that the judge had erred in law in two respects in failing to give proper consideration to Dr Holden's report, in particular at para 21(xvi) of his determination.
13. First, he submitted that the judge had been wrong, in effect, to disregard the report because of the involvement of "Mr Ali" leading to the production of the expert report. At para 21(xvi) the judge said this:
"(xvi) The expert report by Dr Livia Holden was a 'curate's egg'. Dr Holden may be an expert in some matters, but she did not demonstrate in her report that she is an expert in establishing the authenticity of documents or in establishing the ethnicity of Pakistani Hazaras. Her methods too, in some respects, are questionable, such as her reliance upon 'Mr Ali', a shopkeeper of unproven 'provenance' and unproven skills to vouch for a person's language and ethnicity and an interview with the Appellant by an associate, a Mr Marius Holden, of unproven language skills via Mr Ali via Skype. I could have no confidence whatsoever that Mr Ali is an ethnic Hazara who has any skills at all. The report says that Mr Holden interviewed the Appellant and, was 'assisted by Mr Ali'. I could have no confidence whatsoever, that Mr Holden is a proficient Dari speaker able to interpret for Dr Holden as no indication of his skills in that regard is recorded in her report (or was he simply using Mr Ali as an interpreter, which raises the question as to why he conducted the interview rather than the expert, Dr Holden)."
14. Mr Neale submitted that Dr Holden was an expert in her field and had indicated in her report Mr Ali's background as an ethnic Hazara born on the Afghan/Pakistan border with family ties in Quetta and was someone who had "regularly helped the author of this report for field work research". Mr Neale referred me to para 21 of her report (at page A21 of the bundle) in which Dr Holden set out Mr Ali's background. Mr Neale submitted that the judge was wrong to say that he had "no confidence" in Mr Ali's knowledge and skills, in particular in relation to the Hazara language. Mr Neale submitted that the judge's reasoning was inadequate.
15. Secondly, in any event, Mr Neale submitted that the judge had failed to take into account Dr Holden's report, in particular at paragraph 23, where she had identified a number of positive factors supporting the appellant's claim which arose from her own personal knowledge and research and not simply because of Mr Ali's claimed knowledge.
16. Mr Richards submitted that, in effect, Mr Ali had been acting as an expert in giving his opinion on matters when his expertise, as a linguist or otherwise, was not stated. Mr Richards submitted that Mr Ali was not simply acting as an interpreter but as an expert. There was no expert's declaration in respect of him and the judge was entitled to give Dr Holden's report the weight that she did in those circumstances.
17. Dealing with Mr Neale's submissions in reverse order, even if the judge was entitled to give little or no weight to parts of Dr Holden's report which were based upon any assessment of the appellant's background by Mr Ali, it is clear that the matters set out in para 23, were relevant to assessing the appellant's claim and were based upon her own knowledge and expertise and not solely relying upon what was said or confirmed by Mr Ali about the appellant. At para 23, Dr Holden said this:
"23. The interview lasted around 20 minutes and the Appellant responded as following:
1) The Appellant first answered with his address in Quetta as in the witness statement, when asked to name other parts of the city where Hazaras live he mentioned Mariabad on one side of the city and Burori on the other. This is consistent with the information provided by Mr. Ali and also with my research on Hazara ethnic minorities in Quetta. After requesting the specific location of the road where the Appellant used to live in Quetta, he said that the road belongs to the area named Burori. Burori is part of a larger area called Hazara Town. The Appellant also mentioned the location of another road, Alamdar road, in Mariabad area. All this information is consistent with the areas where Hazara live in Quetta.
2) ['MJ'] spontaneously named the Hazaragi language, stating that it is a variation of Farsi: 'Hazaras speak Farsi, the same with Dari, but they call it the Hazaragi because Hazaragi is not a language it is an accent'. He recognised that Hazaragi is spoken slightly differently in Afghanistan and that he is able to understand it. This is also perfectly consistent with the information that I have as anthropologist doing fieldwork in Pakistan and having visited Kabul recently: in both countries Hazaras speak Hazaragi.
3) The Appellant stated that his family had come to Pakistan from Afghanistan, that he does not know when and that he still has relatives in Afghanistan. He said that his family comes from Daikundi in Afghanistan, which is one of the areas from which Hazaras usually migrate from Afghanistan to Quetta.
4) The Appellant was also able to identify the Jagori, Daisangi, and Daikundi as Hazara-clans. This is consistent with the set of information collected in the field by the author of this report and also confirmed by Mr. Ali. Hazaras usually identify themselves mainly with the place of origin in Afghanistan and Diakundi is the group to which the Appellant belongs.
5) The Appellant declared to be Shia which is consistent with the sectarian affiliation of the majority of Hazaras but there are also Sunni and Ismaili Hazaras."
18. The judge's failure to deal with this evidence was, in my view, an error of law. What is there set out relies upon Dr Holden's expertise (even if also confirmed by Mr Ali) and could, therefore, not be tainted by any view that Mr Ali was inappropriately acting as an expert or someone with specialist knowledge.
19. Turning to Mr Neale's first submission, there were aspects of the report, however, which derived any cogency or support for the appellant's claim from Mr Ali's assessment of the appellant's linguistic facility or local knowledge. Consequently, at paras 25-26, Dr Holden's report contains the following:
"25. Once the interview was completed I asked Mr. Ali, his opinion about the ethnical, linguistic, cultural belonging of the Appellant. Mr. Ali confirmed the points already reported as above, and he added also another detail: in an area of Afghanistan called Besut, near Diakundi, the name commonly used by Hazara for 'mother', 'abai' is instead used for father. According to Mr. Ali, only Hazaras know about this linguistic specificity and the region concerned is close to the area from where the Appellant's family originates. Mr. Ali asked this question to the Appellant and he responded correctly.
26. Mr. Ali stated that 'MJ' speaks fluently the Quetta's variety of Hazaragi. When asked what elements make he think so, he said that the pronunciation of the verb 'to do' 'kida' is different in Quetta. There, it sounds 'kada', Mr. Ali insisted that, even with the exposure to external linguistic influences, 'MJ' was using the Quetta Hazaragi. We listened together to the recording of the interview where the Appellant used the expression 'Rashi Bikhai' to answer a question asked in Quetta's Hazaragi by Mr. Ali. The latter asserted with certainty that no Hazara from Afghanistan would use such an expression which is typical of the Quetta's Hazaragi. The expression 'Rashi Bikhai' means 'if you want the right thing I am here'. Concluding, Mr. Ali is certain, on the basis of culture, language, and location that the Appellant belongs to the Quetta Hazaras."
20. There is no doubt that in these paragraphs Mr Ali takes on the mantel of an expert or, at least, someone who has specialist linguistic or other knowledge.
21. In this jurisdiction, there is no evidential rule that opinion evidence is only, in general, admissible from an expert. Subject to the gatekeeper of "relevance", any evidence is, in principle, admissible. I leave aside evidence that would be inadmissible on a public policy basis, for example, professional legal privilege or public interest immunity. But, in assessing Mr Ali's evidence, albeit that it is admissible, Judge Cresswell was entitled to take into account in determining what, if any, weight should be given to it whether it was established that Mr Ali's background meant that his evidence was reliable. The only evidence before the judge was that set out in para 21 of Dr Holden's report which recorded his background, including his ethnicity and the basis of his familiarity with Quetta, and that he had "regularly helped" Dr Holden in respect of "field research". It is not clear how Dr Holden was able to report Mr Ali's background; whether that was based on what Mr Ali had told her and whether any checks had been carried out by her to verify his background. This is not to call into question Dr Holden's integrity but rather to identify that her report could have provided clearer details of why a judge should consider Mr Ali's evidence to be reliable.
22. In those circumstances, in my judgment, Judge Cresswell was entitled to give those parts of Dr Holden's report, which relied upon observations and assessment by Mr Ali, little or no weight. I do not say that Judge Cresswell was bound to reach such a conclusion but merely that such a conclusion was open to him for those reasons which, in essence, he set out in para 21(xvi) of his determination.
23. To that extent, therefore, I do not accept Mr Neale's submissions in respect of ground 1. However, as I have already noted, there remain parts of Dr Holden's report, supportive of the appellant's claim, which were untainted by Mr Ali's involvement and which the judge wrongly failed to take into account.
Ground 2
24. In para 21(xxii), Judge Cresswell counted against the appellant's credibility, specifically his claim to be Hazara, that he had never claimed to speak Hazaragi. The judge said this:
"(xxii) The Appellant had never suggested that he spoke Hazaranghi. At his screening interview, he was interviewed in Dari. He was asked to say what was his primary language and the dialect he spoke and he said Dari/Farsi Persian. He was asked to list all of the other languages and dialects he spoke and he listed Urdu, English and Greek. No mention at all of Hazaranghi there or at any time during interview. The interpreter at the hearing spoke with him in Dari. Ms Capel suggested that the Appellant would be identified in other parts of Pakistan were he to relocate because he spoke Hazaranghi, but the simple truth is that he does not speak Hazaranghi; he speaks Dari, Farsi, Urdu and English and there would be no reason to speak Hazaranghi to non-Hazaras."
25. There are, in my judgment, a number of difficulties with this reasoning.
26. First, in his interview with Dr Holden the appellant specifically identified that he spoke Hazaragi (see para 23(2) set out above). He also identified that Hazaras speak Farsi/Dari but it is called "Hazaragi because Hazaragi is not a language it is an accent". In para 21(xxii), Judge Cresswell criticises the appellant as he has "never suggested" he spoke Hazaragi. In fact, the appellant had done that in his interview with Dr Holden.
27. Secondly, the judge failed to grapple with the evidence before him as to whether, in fact, Hazaragi was a separate language from Dari/Farsi or a dialect or, as the appellant claimed, not a separate language but one with "an accent". In her report, Dr Holden at para 13 stated that the "native language [of the Hazaras] is Persian or Dari." She then continues: "The Persian spoken by Hazara has a distinctive accent and terminology which are strong indicators of ethnic and religious affiliation." The background evidence, referred to in para 6 of Mr Neale's skeleton argument, identifies the language of the Hazara as "a dialect of Farsi" (see para 50 of the refusal letter), "an Eastern dialect of Persian (Farsi) language" (see C97 of the bundle) and that it is simply Farsi (see C250 of the bundle).
28. In my judgment, it was not sufficient for the judge to observe that the appellant had been asked to list "other languages and dialects he spoke" but had not referred to Hazaragi only Dari/Farsi. It was incumbent upon the judge to grapple with the background evidence concerning the nature of Hazaragi - whether it was a separate language at all, a dialect of Dari/Farsi or simply that language spoken with an accent. On one view of the background evidence, there was no 'omission' by the appellant to name the language or dialect called Hazaragi. And, of course, in his interview with Dr Holden he had referred to the fact that he spoke Hazaragi.
29. In my judgment, Judge Cresswell's reasoning in para 21(xxii) is, consequently, inadequate and flawed.
30. Although Mr Richards submitted that any error by the judge identified in grounds 1 and 2 was not material, I am unable to accept that submission. The failure to consider Dr Holden's report in relation to the appellant's claimed ethnicity, together with the judge's flawed reasoning in para 20(xxii), was material to the judge's crucial adverse finding. It is worthy of note that Judge Cresswell accepted Dr Holden's report and opinion in respect of the issue of the appellant's claimed nationality. Whilst I accept that the judge did give other reasons for rejecting the appellant's claimed ethnicity, I am unable to conclude that, had the judge not fallen into the errors I have identified, he would have made the same adverse finding in respect of the appellant's ethnicity.
31. For these reasons, the judge's adverse finding in respect of the appellant's ethnicity cannot stand.
Ground 3
32. Mr Neale submitted that the country guidance case of AH was 12-years-old and that the judge was wrong to rely upon it in reaching his finding that the appellant would not have a sufficiency of protection, if he were an Hazara, in Pakistan. Mr Neale pointed out that AH was not concerned with the Hazara but rather with Sunni extremists. Subsequent decisions of the Upper Tribunal made clear that whether there was a sufficiency of protection in Pakistan depended upon an individual assessment of a person's circumstances (see AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC)). In particular, the Upper Tribunal had acknowledged that a Christian facing an allegation of blasphemy would not receive a sufficiency of protection (see, AK and SK (Christians: risk) Pakistan CG [2014] UKUT 569 (IAC)).
33. Mr Neale submitted that an individual assessment required the judge to consider the up-to-date material concerning the position of Hazara in Quetta and elsewhere. He referred me to a number of background documents, including a Human Rights Watch report: "We are the walking dead/Killings of Shia Hazara in Balochistan, Pakistan" (June 2014) at C168, in particular at C175, C177, C185, C189, C215 and C240. Further, Mr Neale referred me to a number of documents (at para 10 of his skeleton) including a UNHCR report dated 14 May 2014 (at D57 of the bundle), in particular at D97 which noted that law enforcement authorities are reportedly
"unable or unwilling to protect members of religious minorities, including Shias. Sunni militant groups, such as the band Lashkar-e Jhangvi, reportedly operated with impunity, including in areas where State authority is well established, such as Punjab province and Karachi."
34. Mr Neale submitted that this documentation, which demonstrated that the Lashkar-e Jhangvi attacked Hazaras, post-dated the decision in AH. He submitted that the judge in his reasoning, in particular in paras 21(xxxvii) and 21(xxxviii), had failed to consider this more recent background evidence and had, therefore, wrongly applied the 12-year-old country guidance in AH. Mr Neale submitted that it was not adequate for the judge to say at para 21(xli): "I did consider the country material in the appellant's bundle, but saw no reason to follow the country guidance in AH".
35. Mr Richards accepted that the judge's findings in relation to whether there was a risk to Hazaras in Pakistan, whether there was a sufficiency of protection and whether internal relocation was safe and reasonable, were problematic. He accepted that in para 21(xxxvii), the judge appeared to find that there was "a real risk that there would be a lack of protection by the state authorities for a Hazara" but had then gone on to make the opposite finding. Mr Richards accepted that the judge had not paid sufficient heed to the more recent material in relation to these matters. However, he submitted that any error of law was not material unless grounds 1 and 2 were made out.
36. As I have already indicated, grounds 1 and 2 are made out to the extent I have indicated above. In addition, as Mr Richards candidly accepted, Judge Cresswell failed to grapple with the up-to-date background evidence concerning the position of Hazaras in Pakistan. The background evidence postdates the decision in AH and, in particular, the first major attack by Lashkar-e Jhangvi on 4 July 2003 which was some seven months after AH was promulgated. It is far from clear why the judge appeared to accept there was a real risk of a "lack of protection" in para 21(xxxvii) when, ultimately, he reached the opposite finding.
37. I accept Mr Neale's submissions that the Judge erred in failing properly to consider the up-to-date country evidence. In my judgment, the judge's reasoning that the appellant, if he were Hazara, had failed to establish a real risk of serious ill-treatment, a lack of sufficiency of protection or that he could not internally relocate is not sustainable in law. As a consequence, those findings also cannot stand.
Decision
38. For the above reasons, the First-tier Tribunal's decision to dismiss the appellant's appeal involved the making of an error of law. That decision cannot stand.
39. Both representatives invited me, in these circumstances, to remit the appeal to the First-tier Tribunal. However, Mr Neale invited me to preserve the judge's finding that the appellant had established that he was a citizen of Pakistan. Mr Richards agreed that that finding should stand.
40. Consequently, given the nature and extent of the fact finding required, and having regard to para 7.2 of the Senior President's Practice Statement, the appeal is remitted to the First-tier Tribunal for a rehearing before a judge other than Judge Cresswell.
41. The only matter that is preserved is the finding that the appellant is a citizen of Pakistan. That apart, the First-tier Tribunal will decide afresh the appellant's appeal.

Signed

A Grubb
Judge of the Upper Tribunal
Date