Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12061/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 12th December 2016
On 20th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

MR. CORNILIOUS SHAHBAZ
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M. Brookes of Counsel instructed by Ahmad & Williams Solicitors
For the Respondent: Mr D. Mills: Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a Pakistani national who arrived in the UK on 18th August 2012. He claimed asylum on 26th January 2015. His claim was refused on 10th July 2015 and he appealed to the First-tier Tribunal (“FtT”). The appeal was heard by FtT Judge Broe on 10th March 2016 and dismissed for the reasons set out in a decision promulgated on 7th April 2016.
2. The background to the appellant’s claim for protection, and the evidence heard by the Tribunal is set out at paragraphs [10] to [24] of the decision of the FtT and I do not repeat it here. It was uncontroversial that the appellant is a national of Pakistan and that he is a Christian who had been involved in preaching in Pakistan. It was also uncontroversial that the appellant had a profile in Pakistan and that he had been attacked by non-state actors in 2011 because of his activities. The Judge of the FtT accepted that the appellant had been involved with the church in Pakistan as he claims. The Judge notes at paragraph [30] that it was not the appellant’s case that he is at risk from the state and he does not claim to have been charged with blasphemy. At paragraph [31], the Judge states:
“… I have considered the risk he might face of being charged with blasphemy and note that he was preaching in a prominent role from 2001 to 2011 during which time he came to the attention of the police. He was not charged with blasphemy during that period and I am not persuaded that circumstances have now changed so that there would be a real risk of him being charged on return.”
3. It was against that background that the Judge went on to consider the risk upon return by reference to the country guidance decision of AK & SK (Christians: risk) Pakistan CG [2014] UKUT 569 (IAC). The relevant guidance is set out at paragraph [32] of the decision of the FtT and at paragraph [33], the Judge concludes:
“I see no reason to depart from these findings of the Tribunal and conclude that, while the Appellant might suffer discrimination on return to Pakistan this would not amount to persecution. He will be permitted to practise his faith and participate in church activities. Should it prove necessary relocation will be a viable option. I therefore conclude that the Appellant does not have a well-founded fear of persecution or treatment engaging Article 3.”
4. As to the appellant’s Article 8 claim, the Judge found at paragraph [34] of his decision that the appellant cannot meet the requirements of paragraph 276ADE to be eligible for the grant of leave based on his private life because he has not been in this country for the required 20-year period. At paragraph [37] of his decision, the Judge states:
“Against the background of my findings above I am not persuaded that there are arguably good grounds to consider the grant of leave outside the rules. There is therefore no need for consideration of the Appellant’s Article 8 rights outside the rules. If I am wrong about that then I am satisfied that any interference with Article 8 rights would be lawful and for a legitimate purpose, the maintenance of immigration control. It would also be proportionate.”
The appeal before me
5. The appellant submits that the Judge misapplied the country guidance decision of AK & SK and that the inference that the appellant would not be charged with blasphemy fails to have regard to what was said by the Tribunal at paragraph [224] of the decision in AK & SK, and the risk of persecution that a person may face from his proselytising activities. The appellant submits that the Judge failed to have regard to the particular facts of the appeal and whether in light of the appellant’s past conduct and the events that had occurred, he would be at an individual risk upon return. The appellant submits that whilst the country guidance decision establishes that internal relocation is normally a viable option, there is no proper assessment of whether it is an option for this appellant given his background and characteristics. Finally, it is submitted that the Judge erred in his assessment of the appellant’s private life claim under paragraph 276ADE of the Immigration Rules.
6. Permission to appeal was granted by Upper Tribunal Judge Grubb on 10th June 2016. In granting permission, the Judge noted that it is arguable that the Judge erred in law by failing to consider the full factual matrix (in particular the past attack on the appellant) in applying AK & SK by focussing on the risk of a blasphemy prosecution. The matter comes before me to consider whether or not the determination by First-tier Tribunal Judge Broe involved the making of a material error of law, and if so, to remake the decision.
7. Before me, Mr Brookes submits that the issue in this appeal is the application by the FtT Judge of the country guidance decision of AK & SK. The issue for the Judge was whether there is an individual risk to this appellant upon return, assessed against the background to his claim. The country guidance establishes that certain people may be at greater risk where there is something specific about the particular appellant, to be assessed on a case-by-case basis. AK & SK was concerned with those facing charges of blasphemy. Here, the specific circumstances are that the appellant had previously been attacked and had received warnings. The risk to the appellant is from non-state actors who Mr Brookes submits, use the blasphemy laws to target individuals. Mr Brookes submits that the FtT Judge focused upon the question of whether the appellant has been accused of blasphemy, whereas a proper reading of the country guidance decision establishes that it is not only those that face a blasphemy charge, that may be at risk upon return. Mr Brookes submits that the previous attack upon the appellant in 2011 and the warnings that followed, provide a good indication that the appellant will continue to be targeted in the future. There is every reason to believe that the attacks would be repeated upon the appellant’s return. The appellant previously reported matters to the police, and Mr Brookes submits, the objective evidence establishes that the police often fail to protect minorities. He referred me to a number of extracts from the objective evidence set out in the appellant’s bundle to support that proposition. He submitted that the objective evidence clearly establishes an absence of State protection and given his particular profile, the appellant would be at risk upon return. He submits that although the appellant does not claim to have been charged with blasphemy, in order to secure protection from the authorities, he is expected to go to those who are charged with enforcing the blasphemy laws, to seek protection.
8. Mr Brookes submits that if the appellant returns to Pakistan and continues his activities, he will be at risk no matter where he lives in Pakistan. His family continue to live in Lahore and he would have to relocate elsewhere. He submits he would have no support. He submits that it would therefore be unduly harsh to expect the appellant to relocate elsewhere. As to the appellant’s Article 8 private life claim, Mr Brookes submits that it would be unreasonable to expect the appellant to return to Pakistan. He would face significant obstacles because he would be unable to continue practising and preaching his religious beliefs in Pakistan.
9. In reply, Mr Mills submits that the country guidance decision in AK & SK is a significant body of work in which the Tribunal reached conclusions having considered a great deal of evidence. He submits that a country guidance decision cannot cover every circumstance and some assessment of the individual facts of an appeal is always necessary. However, having considered a substantial amount of evidence, the Tribunal in AK & SK concluded that what is likely to be important in any assessment of the risk upon return, is whether there are charges of blasphemy against the individual. He submits that unless an appellant faces charges of blasphemy, it is open to the appellant to internally relocate. He submits that the evidence here, is that the appellant experienced problems in specific areas. He was able to approach the authorities and seek their protection. Even if the appellant were at risk in his home area, it was properly open to the Judge to find that the Appellant could relocate elsewhere.
10. Mr Mills submits that on the appellant’s own account, he had been able to open several churches in the decade between 2001 and 2011. It was uncontroversial that the appellant had been attacked in 2011 but that was by non-state actors, and at paragraph [31] of his decision the Judge expressly noted that past persecution can assist in the assessment of future risk. The country guidance decision accepts that Christians in Pakistan, in general, suffer discrimination and the Judge accepted that the attack upon the appellant in 2011 by non-state actors was consistent with the background material. However, as the Judge records at paragraph [14] of his decision, the appellant’s own case is that the police accepted a report he had made and there is therefore, even on the appellant’s own account, no evidence that the authorities did not take an interest in his report. Mr Mills submits that the Judge was therefore entitled to conclude, on the facts, that whilst the appellant may suffer discrimination on return to Pakistan, this would not amount to persecution. It was also open to the Judge conclude, on the facts, that should it prove necessary, relocation will be a viable option. He submits that whilst extremists have greater influence in some areas, there are areas where Christians are accepted, with large Christian communities in some areas. It would not be unduly harsh to expect the appellant to re-locate. He would be able to relocate to an area with a Christian population and find work there. The lack of family support is not something that has prevented the appellant from relocating to the United Kingdom and would not prevent him relocating elsewhere in Pakistan, should that be necessary.
Discussion
11. The general security situation within Pakistan has been considered by the Upper Tribunal in the course of AK & SK (Christians; risk) Pakistan CG [2014] UKUT 569. It is the application of the country guidance set out in that decision by the Judge of the FtT, that is at the heart of the appeal before me. The headnotes to that decision are set out at paragraph [32] of the decision of the FtT. The key issues determined by the Upper Tribunal in AK & SK are set out at paragraph [3] of the country guidance decision. It is correct to note that the Tribunal was concerned with not only the risk of a false blasphemy allegation being levelled against Christians, but also other issues including whether the serious discrimination faced by Christians in Pakistan, would amount to persecution, whether Christians are able to practise their faith and the risk that Evangelical Christians face. As Mr Mills submits, the country guidance decision is a significant body of work in which the Tribunal reached conclusions having considered a great deal of evidence.
12. Amongst a considerable volume of objective evidence, at paragraphs [100] to [104] of its decision, the Upper Tribunal considered the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan (14 May 2012), that contain helpful background material, and set out the UNHCR's recommendations. The UNHC recommend inter alia that the asylum claims made by members of religious minorities require particularly careful examination of possible risks. Members of the Christian community may, depending on the individual circumstances of the case, be in need of international protection. The Upper Tribunal confirmed at paragraph [185] of its decision, that asylum claims made by members of religious minorities in Pakistan, require particularly careful examination.
13. As I have said, the headnotes to the country guidance decision are set out at paragraph [32] of the decision of the FtT. It is useful to set out at this stage, the findings and conclusions reached by the Upper Tribunal in the country guidance decision insofar as relevant to this appeal. The Upper Tribunal stated:
Evangelists
“224. We find that a Christian who speaks out in non Christian public places about Christianity is more likely to draw adverse attention to himself than those who do not. Although Ms Jahangir suggested this may not cause any serious difficulties in certain areas and amongst certain people, generally she considered, and we agree, that this would be risky behaviour which would create problems. The evidence largely suggests that there is, on the whole, a tolerance of Christianity but where it is taken out into the public arena and flouted, there is a serious risk of a blasphemy allegation being made. Those Christians who genuinely believe that it is an essential element of their Christianity to preach in public and to try and convert others to their faith would, we find, be reasonably likely to encounter serious problems.
Sufficiency of protection
225. It is a well-established principle that a well-founded fear of persecution will not exist if there is a sufficiency of protection against serious harm (Horvath [2000] UKHL 37). This must be assessed holistically. Evidence showing ineffective protection can shed light on whether a well-founded fear exists and vice versa. The situation of Christians is such that, in our opinion, where an individual can establish a real risk of serious harm by virtue of a blasphemy charge being brought against him or her, it is in general unlikely that he or she will have available protection.
226. This does not mean that the evidence establishes that the authorities never protect minorities. There is evidence that the police and authorities have on occasions acted to assist minorities and that Christians are able to asset effective legal remedies. For example, when in April 2011, a mob attacked the Christian community in Gujranwala in Punjab, the police intervened. They also increased protection for churches after threats made around Christmas in 2012 and after an attack on a Christian neighbourhood in Lahore in March 2013, compensation was offered to families and they were assisted with the rebuilding of their homes. Large-scale demonstrations took place calling for more rights and protection for Christians and there are no reports that those resulted in any problems. However, predominantly, the evidence suggests that there is a failure to protect Christians from attacks and the consequences of abusive allegations of blasphemy. Apart from the actions of the high courts in overturning unfair verdicts, no effective action is taken by the authorities to protect and defend Christians or to punish their attackers although it has to be said that the same applies to non Christians accused of blasphemy. Whether this stems from an unwillingness or an inability to protect, is not the issue. Overall, there has been and there continues to be an insufficiency of state protection in cases where serious allegations of blasphemy are made and pursued, regardless of the religious faith of the accused.
Internal relocation
227. Figures of blasphemy charges, deaths and attacks on individuals, communities and churches are all of concern but they must be viewed against the size of the population and the fact that most take place in Punjab where radical Islamists have a strong presence. The option of internal relocation must be viewed against that background.
228. The correct approach as laid out by Lord Bingham in Januzi [2006] UKHL 5 is whether an individual can reasonably be expected to relocate or whether it would be unduly harsh to expect him to do so. The test must not be equated with a well-founded fear of persecution or a real risk of ill treatment.
229. According to the UNHCR, internal relocation will generally not be an option in areas of FATA, Khyber Pakhtunkhwa and Baluchistan which are all currently affected by security and military counter-insurgency operations and retaliatory attacks. In other areas, the availability of a viable relocation option needs to be assessed on an individual basis.
230. Individuals who are being seriously pursued by armed militant groups such as the Lashkar-e-Jhangvi and Sipah-i-Sahaba will generally not be safe in Punjab where these groups are based. They may also be unsafe elsewhere due to the wide geographical reach of these groups. The nature of the threats received, the individual's personal circumstances and availability of support from influential connections are all relevant considerations. It is not likely that ordinary community members will have the resources or the inclination to pursue their victims outside the local area and so those facing harm from localised groups or individuals will generally be able to relocate to one of the many large cities. However, individuals subject to criminal prosecution under the blasphemy laws will not generally be able to relocate.
231. Those against whom an FIR has been issued may in certain circumstances be able to relocate. The seriousness with which an FIR is lodged and pursued will need to be assessed along with the individual's personal circumstances, the existence of traditional support mechanisms such as the presence of friends and relatives in the area of prospective relocation and whether the individual would be readily identifiable there. Relocation to urban centres will generally be possible where the factors identified above do not come into play.
14. At paragraphs [10] to [24] of his decision, the Judge has carefully recorded the evidence of the appellant, including his education and his activities following his return to Pakistan in 2001. At paragraph [13] of his decision, the Judge notes that by 2011, the appellant and another preacher had opened 13 churches and four house groups. He also records the evidence of the attack that the appellant was the subject of, in August 2011 and the appellant’s own account that the police accepted a report he had made, but said that they could not do anything because he could not identify his attackers beyond saying, from their clothing, they were from the Ter-ek-a Taliban Pakistan (TTP). At paragraph [14] of his decision, the Judge records the appellant’s evidence that he was in recovery for two or three months and the church asked him not to return to Kasur because there had been an earlier incident in Valencia in 2005 when one person died and 10 were injured when guns were fired at people sitting in the Church. It seems those responsible, wanted land belonging to the church and in 2011, the matter was still going through the courts. The Judge also notes the evidence of the appellant as to the threatening text messages and notes that he received.
15. The Judge did not need to resolve any factual matters. The background was uncontroversial, but taking the appellant’s account at highest, and applying the country guidance, it failed.
16. I reject the submission made by the appellant that the Judge failed to consider the effect of past persecution in his assessment of the future risk and whether state protection and internal relocation are properly available to the appellant. At paragraph [31] of his decision the FtT Judge expressly recognises that past persecution can assist in the assessment of future risk.
17. In AK & SK the Tribunal found that a person that speaks out in non Christian public places about Christianity, is more likely to draw adverse attention to himself than those who do not. The Tribunal held that those Christians who genuinely believe that it is an essential element of their Christianity to preach in public, and to try and convert others to their faith would, be reasonably likely to encounter serious problems. It noted that the evidence largely suggests that there is, on the whole, a tolerance of Christianity but where it is taken out into the public arena and flouted, there is a serious risk of a blasphemy allegation being made. Here, when the appellant returned to Pakistan in 2011 he opened two churches in Kasur. His evidence is that he felt that God wanted him to get disused churches up and running, and he and another preacher, went on to open a number of other churches. If the appellant continues his activities upon return to Pakistan, to travel and set up new churches for the reasons that he has done so previously, that will not necessarily expose him to a risk upon return. The appellant did not speak out in non-christian public places about Christianity. Any threat against the appellant did not progress to the registration of a charge of blasphemy. No such charge has been initiated with the authorities, still less pursued.
18. The appellant’s evidence is that the police accepted a report he had made but they were unable to do anything because the appellant could not identify his attackers. In AK & SK, the Tribunal found that there is evidence that the police and authorities have on occasions acted to assist minorities and that Christians are able to access effective legal remedies. In April 2011, when a mob attacked the Christian community in Gujranwala in Punjab, the police intervened. They also increased protection for churches after threats made around Christmas in 2012, and after an attack on a Christian neighbourhood in Lahore in March 2013, compensation was offered to families and they were assisted with the rebuilding of their homes.
19. The Tribunal found that the evidence suggests that there is a failure to protect Christians from attacks and the consequences of abusive allegations of blasphemy. It found that overall, there has been and there continues to be, an insufficiency of state protection in cases where serious allegations of blasphemy are made and pursued, regardless of the religious faith of the accused. Here, it does not form any part of the appellant’s case that he is at risk from the state and he does not claim to have been charged with blasphemy, either as a result of his activities in Pakistan or because of a real risk of serious harm by virtue of a blasphemy charge being brought against him.
20. In AK & SK, the Tribunal confirmed that the availability of a viable relocation option needs to be assessed on an individual basis. The Tribunal noted that individuals who are being seriously pursued by armed militant groups such as the Lashkar-e-Jhangvi and Sipah-i-Sahaba will generally not be safe in Punjab where these groups are based, and may also be unsafe elsewhere, due to the wide geographical reach of these groups. Here, the appellant describes having been attacked in 2011 when he was sitting outside a friend’s house in Asif. He could not identify his attackers, but was able to say from their clothing that they were from the Ter-ek-a Taliban Pakistan (TTP). Again, the Tribunal in AK & SK concluded that individuals subject to criminal prosecution under the blasphemy laws will not generally be able to relocate.
21. Having carefully considered the country guidance decision of AK & SK, against the claim advanced by the appellant, I reject the claim made by the appellant that the Judge of the FtT misapplied the country guidance to the particular facts of the appeal before him. The Judge carefully considered the individual characteristics of the appellant, his activities and the events that give rise to his subjective fear of risk upon return. In my judgment, it was open to the Judge to conclude as he did that while the appellant might suffer discrimination on return to Pakistan, this would not amount to persecution. He will be permitted to practise his faith and participate in church activities. Should it prove necessary, relocation will be a viable option.
22. Turning then to the appellant’s Article 8 claim, the Judge states at paragraph [34] of his decision that the appellant does not claim to have established a family life in this country and cannot meet the requirements of paragraph 276ADE so as to be eligible for the grant of leave based on his private life because he has not been in this country for the required 20 year period. Paragraph 276ADE of the Immigration Rules sets out the requirements to be met by an applicant for leave to remain on the grounds of private life. Insofar as is relevant to this appeal, the rules provide:
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
….
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.
23. The issue for me to decide is whether or not the Judge properly considered whether the appellant is able to meet the requirements of paragraph 276ADE(1)(vi) of the Immigration Rules. The scope of paragraph 276ADE of the Immigration Rules is not limited in the way referred to by the Judge at paragraph [34] of his decision. The applicant cannot only succeed if he has been in the country for the required 20 year period, and the Judge erred in so concluding. I therefore consider whether that amounts to a material error of law. The assessment of whether the requirements of the rules are met must be completed in light of the evidence before the Judge and the findings made by him. To succeed under the private life provisions, set out in paragraph 276ADE(1)(vi) of the immigration Rules, the appellant must establish that he has lived continuously in the UK for less than 20 years, but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go, if required to leave the UK. Beyond the international protection claim advanced by the appellant, the appellant does not advance any other grounds upon which he maintains that there would be very significant obstacles to the applicant’s integration into Pakistan, if required to leave the UK. The Judge rejected the international protection claim and was entitled to do so. The appellant cannot on any view establish on the evidence that there would be very significant obstacles to the applicant’s integration into Pakistan.
24. The Judge referred to the public interest considerations set out in s.117 of the 2002 Act at paragraph [35] of his decision.
25. In my judgement, the error of law that is identified, is not one that is material to the outcome of the appeal. It was open to the Judge to conclude that he was not persuaded that there are arguably good grounds to consider the grant of leave outside of the rules, and to find that in any event, any interference with the Article 8 rights of the appellant are lawful, for a legitimate purpose and proportionate.
26. It follows that the appeal is dismissed.
Notice of Decision
27. The appeal is dismissed and the decision of First-tier Tribunal Judge Broe shall stand.
28. No anonymity direction is applied for, and none is made.

Signed Date 12th April 2017

Deputy Upper Tribunal Judge Mandalia

FEE AWARD

As I have dismissed the appeal there can be no fee award.

Deputy Upper Tribunal Judge Mandalia