Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08640/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 18 March 2016
On 7 April 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

MR AA
(ANONYMITY DIRECTION MADE)

Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Lemer, Counsel, instructed by Thompson *& Co Solicitors (Morden)
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND DIRECTIONS

1. The appellant is a national of Pakistan and is of the Ahmadi faith. In a determination sent on 26 November 2015 First-tier Tribunal Judge Chana dismissed his appeal against a decision by the respondent dated 15 May 2015 refusing to grant him asylum or humanitarian protection in the UK. The appellant entered the UK in September 2010 as a student with leave valid until 31 December 2014. On 10 November 2014 the appellant claimed asylum on the basis that he had been targeted for his Ahmadi faith by extremists in 2010 and they had also targeted his mother who had been charged with blasphemy. The police were said to have visited the appellant's house again in December 2014 and his servant was said to have told the police that his mother was in the UK and had claimed asylum. The appellant's father was said to have been in hiding in Quetta since. The police were said to have visited again in January 2015.

2. The judge accepted that the appellant was an Ahmadi but did not accept he would be at risk because:

"33. The core of the appellant's claim is that he is at risk in Pakistan not because of his own actions as an Ahmadi but his mother's actions. He claims that his mother has been charged for blasphemy because her non-Ahmadi client in her beauty salon reported her to the authorities for preaching the Ahmadi faith and this puts him at risk. Therefore the appellant's claim is based on his mother's conduct in Pakistan and not his own".

3. The judge went on to find that the appellant had not demonstrated that he had preached to anyone outside his faith in Pakistan or that he had a specific profile for Ahmadi activities. She disbelieved the appellant's evidence about his father and sister because of inconsistencies in his account of whether they continued to practice the Ahmadi faith. As a result she said that she did not find it credible that the appellant had to flee Pakistan because of his mother's alleged blasphemy "but not his father or sister who were also Ahmadis" and who she considered had not been shown to be at risk. The judge also found not credible the appellant's account that his mother would preach to non-Ahmadis at a beauty salon in Lahore and risk her business being reported to the authorities. Despite the appellant adducing evidence from a Russell Gerard Wilcox, a UK barrister who had visited Lahore and made inquiries about this beauty parlour (as well as of the police records), the judge concluded that she preferred the respondent's evidence that no beauty parlour exists in the names given by the appellant. She also found that the complaint lodged against the appellant's mother was unreliable as it was consistent with the "appellant having planted this evidence by making sure that a complaint is lodged against his mother, to bolster his asylum claim". The judge also considered that the evidence regarding the attack on the appellant in in May 2010 was not specifically directed at him and so this evidence "does not take the appellant's case any further".

4. Turning to the appellant's claimed sur place activities in the UK, the judge found that this showed that it was only in the last 6 months that the appellant's activities had "escalated" and was at odds with the appellant's evidence in his asylum interview when he said that he did not have time to participate in preaching and leaflet activities. She concluded that the appellant's "flurry of activity with the Ahmadi Muslim Association UK is an opportunistic attempt to claim that he is a diligent Ahmadi to try and strengthen his asylum claim". She found he had not told the truth about his commitment to the Ahmadi faith or about his mother's activities.

5. The appellant's grounds of appeal included an application to amend the grounds which I granted. The grounds as amended contend that the judge erred in failing to consider or rule on an application for adjournment based on the fact that the appellant's mother's asylum appeal was pending and a direct witness to core elements of her account had not received a response to his request that he be told whether the respondent intended to cross-examine him. Despite not hearing from the mother and despite noting that his mother's appeal was pending at [20], the judge deemed fit to reject her evidence. The grounds also contend that the judge erred in her approach to the evidence of Mr Wilcox who had written to the respondent and the Tribunal prior to the hearing offering to attend to give evidence and specifically asking the respondent whether she wished to cross-examine him. Her error was thus said to be twofold. First she wrongly decided to refuse to adjourn to ensure Mr Wilcox could attend the hearing. Second, given her view that she had enough information to determine the appeal without Mr Wilcox's evidence, she was wrong to reject his evidence as not credible, especially since on her own account the appellant's case was entirely dependent on his mother's asylum claim.

6. During submissions I heard submissions from the parties regarding whether or not the judge had been asked to adjourn so that Mr Wilcox could attend to give evidence. Mr Lemer produced a statement from a solicitor at Thompson & Co who had attended the hearing before the judge on 17 November 2015 which attested that the Home Office Presenting Officer had himself asked the judge to consider adjourning so that the respondent could consider further the evidence of Mr Wilcox. This application was said in this statement not to have been opposed by the appellant's representative, Mr Yeo of Counsel. The statement said that the judge had ruled that she would refuse this application as she did not consider it necessary. Mr Tufan said that the note he held from the POU regarding the hearing of this appeal did not mention such an application to adjourn, but he did not seek to argue that the record of the appellant's solicitor was incorrect.

7. With the agreement of the parties I consulted the record of proceedings, but informed them I could not sufficiently decipher their contents so as to establish whether or not such an application was made. Having considered the matter, I am satisfied that such an application was made. Mr Tufan quite rightly did not seek to argue that the cursory HOU note can be taken to negative the claim made regarding the adjournment issue. Further, on the given facts, it would indeed have been very surprising if such an application it had not been made given the late production of the statement from Mr Wilcox dated 27 April 2015 and the fact that the appellant's mother's asylum appeal was pending. Mr Wilcox's evidence was highly material to the core of her claim which centred on what had occurred at a beauty parlour in Lahore.

8. Having ruled on this matter, it is unnecessary to set out the parties' respective arguments otherwise because I consider that the judge's failure to adjourn or to give reasons for refusing to adjourn amounted to an error of law.

9. . In considering the matter of whether the judge did or did not apply a procedurally fair approach, I am guided by the judgment in SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 wherein at [14]-[15] Moses LJ stated:

"14.In relation to both the two issues I have identified, whether the Immigration judge erred in law in refusing an adjournment and as to whether he would have reached the same conclusion, in my judgement Judge King fell into serious error. First, when considering whether the immigration judge ought to have granted an adjournment, the test was not irrationality. The test was not whether his decision was properly open to him or was Wednesbury unreasonable or perverse. The test and sole test was whether it was unfair. In R v Secretary of State for the Home Department ex-parte the Kingdom of Belgium and Others [CO/236/2000 15 February 2000] the issue was whether a requesting state and Human Rights organisations were entitled to see a medical report relevant to Pinochet's extradition. Simon Brown LJ took the view that the sole question was whether fairness required disclosure of the report (page 24). He concluded that the procedure was not a matter for the Secretary of State but for the court. He endorsed a passage in the fifth edition of Smith Woolf and Jowell at pages 406-7:-
"Whether fairness is required and what is involved in order to achieve fairness is for the decision of the courts as a matter of law. The issue is not one for the discretion of the decision-maker. The test is not whether no reasonable body would have thought it proper to dispense with a fair hearing. The Wednesbury reserve has no place in relation to procedural propriety." (page 24)
15. The question for Judge King was whether it was unfair to refuse the appellant the opportunity to obtain an independent assessment of his age; the question was not whether it was reasonably open to the Immigration judge to take the view that no such opportunity should be afforded to the appellant. Where an appellant seeks to be allowed to establish by contrary evidence that the case against him is wrong, the question will always be, whatever stage the proceedings have reached, what does fairness demand? It is plain from reading his decision as a whole that that was not the test applied by Judge King. His failure to apply that test was a significant error."
10. As I observed at the hearing before me, it is not entirely satisfactory that the appellant's representatives decided not to arrange for Mr Wilcox to attend the hearing notwithstanding that he had written to request whether his attendance was necessary. He had received no reply and was not entitled to assume his request had been considered. Nevertheless, given that Mr Wilcox is a barrister, it would have accorded with convention and best practice for the respondent to have responded to his request rather than leave that request unanswered. There was sufficient time for her to have done so. Further, it should have been evident to the judge that Mr Wilcox's evidence was absolutely central to the appellant's case. Indeed on her own account it was entirely dependent on his evidence regarding the appellant's mother's claim to have had a blasphemy complaint taken out against her. Not only did the judge not state any reasons for proceeding to assess Mr Wilcox's evidence without oral examination, but the judge proceeded to reject certain aspects of it as not credible for reasons which at their highest were somewhat speculative, turning largely on whether it was plausible that a person in a neighbouring property would grant access to Mr Wilcox to view the beauty parlour. In the context of what is known from background country information regarding the way life is organised in big cities such as Lahore, it cannot be said that this was to be rejected as not plausible simply because Mr Wilcox had not provided an explanation for it. The very fact that the judge at [41] pinpointed Mr Wilcox's lack of explanation for it as so important, underlines her error in not affording Mr Wilcox an opportunity to provide such an explanation in person.

11. I also have serious concerns in any event that the judge was justified in regarding the appellant's claim as entirely dependent on his mother. On his own account he had been attacked in 2010. Although the attack on the mosque he was attending at the time may not have been directed at him personally, the attack on a group of worshippers in the main Ahmadi mosque in the city, is capable of being regarded as an attack on all those present individually as well as collectively; or, put another way, in such a context it is not necessarily incumbent on an appellant to show that he was singled out.

12. In any event, even if the judge was right that the only targeted attacks then and subsequently was directed at his mother, recital 27 of the original Qualification Directive states that: "Family members, merely due to their relation to the refugee, will normally be vulnerable to acts of persecution in such a manner that could be the basis for a refugee claim". The judge appears to have wholly overlooked this consideration.

13. A further difficulty afflicts the judge's reliance on the fact that the appellant's father and sister were not at risk in Pakistan. Whilst it was open to her to reject the appellant's evidence about this if she took all of it into account, it appears that in reaching her conclusions on this matter she simply ignored the appellant's evidence that his father had gone into hiding in Quetta.

14. A further flaw concerns the judge's reliance in rejecting the appellant's claim on the opportunistic nature of his sur place activities. Whilst she was fully entitled to treat such (perceived) opportunism as a relevant factor, this did not relieve of her obligation to consider whether nevertheless such activities put the appellant at risk. This last observation points up a further flaw on the part of the judge, in that whilst Article 4(3)(d) of the Directive requires a judge to take into account "whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection", the same subparagraph continues that this exercise is necessary "so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country", a wording that clearly requires (consistently with established UK case law) that even opportunistic sur place activities must be examined as to whether in fact they place an applicant at risk. This the First tier Tribunal judge did not do in the appellant's case.

15. For the above reasons the judge materially erred in law and her decision must be set aside. Both parties were in agreement with me that this is an appropriate case to remit to the First-tier Tribunal, the only finding of fact to be preserved is that the appellant is an Ahmadi (a fact not disputed by the respondent in any event). From the terms of my decision on error lf aw it follows that Mr Wilcox should attend ready to give evidence as a witness.

16. It will also be necessary for the First-tier Tribunal hearing this case to take into account the findings of fact made by the First-tier Tribunal following a hearing made on 23 December 2015 allowing the asylum appeal of the appellant's mother, QA (AA/01283/2015). This tribunal heard evidence from Mr Wilcox and found that it had "no reason to doubt the evidence given by Mr Wilcox" ([98]) and expressly rejected the respondent's contrary evidence that no such parlour existed at the relevant time ([102]). It will be entirely a matter for the First tier Tribunal re-hearing this appeal to decide whether to apply Devaseelan principles, although my own initial view is that there being a heavy overlap in the factual matrix of both appeals, it would be correct to treat the judicial determination in the mother's case (not appealed by the respondent) as a starting-point.

17. To summarise:

The First-tier Tribunal judge materially erred in law and her decision is set aside.

The case is remitted to the First-tier Tribunal for the decision to be re-made there in accordance with directions set out above.

Signed Date

Judge of the Upper Tribunal