Tribunal decisions

The decision

IAC-FH-LW/CK-V3

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/09087/2015
AA/09083/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 January 2017
On 30 March 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE ALLEN

Between

u a
j k
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr G Lee, instructed by ATM Law Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellants are husband and wife. The first appellant is a national of Pakistan, and a Muslim, and the second appellant is a national of India and is a Sikh. They appealed to a Judge of the First-tier Tribunal against the Secretary of State’s decision of 5 June 2015 refusing asylum.
2. In essence the judge concluded that the couple could not live together in Pakistan without there being a real risk of persecution. She did not accept that the first appellant faced a real risk of persecution if he returned alone to Pakistan. The judge did not accept that the second appellant, if returned to India with their son, and with or without the first appellant, would face a real risk of persecution.
3. At paragraph 53 of her decision the judge noted that it was proposed that the first appellant could wait in Pakistan for a relatively short period and seek to join the second appellant in India to resume their family life there. She referred to evidence of a bilateral treaty which itself referred to visiting although not to settlement, and the appellants had not adduced any evidence on this point, to contradict the respondent’s position. This we think must be a reference to paragraph 38 of the refusal letter which quotes in response to a country of origin request in relation to relationships between Indian and Pakistani nationals, dated 7 January 2015:
“A bilateral visa agreement was signed on 8 September 2012 between the Government of India and the Government of Pakistan to facilitate travel for nationals of both countries. The agreement became operational on 14 December 2012.”
4. The judge concluded that the claim could not succeed with regard to asylum, humanitarian protection or on human rights grounds.
5. Permission to appeal to the Upper Tribunal was refused by a First-tier Judge and subsequently by a Judge of the Upper Tribunal, but on 10 June 2016 Andrews J granted permission for judicial review of the Upper Tribunal decision. Following the final order permission to appeal was granted by the Upper Tribunal. The grounds argued that the key point was the judge’s finding that the first appellant would be able to relocate to India after a short period of time in Pakistan. The judge had referred to an assertion as to a bilateral treaty between Pakistan and India without any evidence, expert or otherwise, to confirm its operation. The judge had noted that the evidence itself pointed to the treaty being concerned with visits not settlement and in those circumstances it was an error of law to rely on the treaty’s existence without evidence as to how it operated and evidence as to how it related if at all to settlement. It was argued that the judge’s conclusions were unsupported by the evidence before her and the error of law was clearly a material one.
6. Before us Mr Lee accepted that there had not been evidence before the judge as to the process by which a Pakistan man married to an Indian woman could obtain entry to India. He argued that the finding of the judge was not open to her and as a consequence there was an error of law. He argued that the matter was coloured by the judge’s findings on risk on return in Pakistan for the couple. The judge’s finding on the first appellant’s ability to enter India from Pakistan was based on inadequate evidence and this amounted to an error of law. As a consequence expert evidence should be allowed as to the situation in India. In essence his argument was that the judge had made findings on the central issue of fact despite the lack of evidence, and that was an error of law which merited setting aside the decision.
7. We did not need to hear from Mr Avery.
8. Mr Lee put the matter as well as it could be put. Nevertheless we disagree with him fundamentally as to the proper approach to be taken to the judge’s decision in this case. It was for the appellants to make out their case that there would be difficulties going to the extent of affecting the Article 8 rights of the couple adversely, with regard to the first appellant’s ability or inability to join his wife from Pakistan in India. There was no evidence before the judge other than the somewhat vague evidence from the treaty to which we have referred above. It may well be that better evidence can be obtained to support a fresh claim, whether from the Indian and/or Pakistani High Commission, or the website quoted in the respondent’s letter. But that is not the matter with which we are concerned today. We have to decide whether there is an error of law in the judge’s decision. In light of the fact that the appellant produced no evidence to identify any difficulties for the first appellant in joining his wife and son in India, we conclude that the judge did not err in law in finding as she did. Consequently her decision dismissing the appeal is maintained.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 29 March 2017

Upper Tribunal Judge Allen