Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/12111/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 11 January 2017
On 16 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

ar
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H. Naz, Morden Solicitors LLP
For the Respondent: Mr D. Mills, Specialist Appeals Team

DECISION AND REASONS
1. The appellant has been granted permission to appeal to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Hussain sitting at Birmingham on 14 March 2016) dismissing his appeal against the decision of the Secretary of State to refuse to recognise him as a refugee on account of him having had a leadership role in the Ahmadiyya Muslim faith in Pakistan, or on account of his sur place activities for the AMA UK, or on account of him facing an enhanced risk on return from the KN as a result of a religious fatwa being issued against him at the instigation of the former in-laws of his daughter "F". The First-tier Tribunal made an anonymity direction, and I consider that the appellant should continue to be accorded anonymity for these proceedings in the Upper Tribunal.
2. Judge Hussain found that the appellant had followed his faith discreetly in Pakistan, and that he had not acquired a profile which would have attracted the adverse attention of the authorities or the FN. He found that the account of past persecution at the hands of non-state agents was not credible, as was the claim of future risk from non-state agents, including from the former in-laws. The appellant admitted he was not concerned about a risk from the authorities: paragraph [32]. The judge accepted that the appellant had practised his faith more openly in the UK, but found that on return to Pakistan the appellant would have behave in the same way as he had done in the past, which was to manifest his faith in a way which did not attract hostility amounting to persecution from the mainstream Sunni Muslim population.
3. Judge Chambers refused the appellant permission to appeal, holding that the judge had given adequate reasons for his findings. But following a renewed application to the Upper Tribunal, Judge Finch granted permission as she considered it was arguable that the judge did not apply the necessary anxious scrutiny to the oral and other evidence relied upon at the hearing:
In particular, the evidence given by the witnesses was not analysed and no weight was given to the fact that it corroborated much of the basis for the Appellant's sur place claim.
4. Stefan Kotas of the Specialist Appeals Team settled an extensive Rule 24 Response in which he conceded that the judge had erred in law in the respects pleaded in Grounds 1-3. He however disputed that Grounds 4-6 had any merit. He submitted that some of the findings of the judge should be preserved (including the finding that the appellant was not credible in his account of past persecution or as to the alleged future risk emanating from the in-laws and/or the fatwa), and that the re-hearing in the Upper Tribunal should be confined to the issue of why the appellant had practised his faith discreetly in Pakistan in the past, and as to how and why he would continue to manifest his faith if he returned to Pakistan.
Discussion
5. By conceding Grounds 1-3, the respondent conceded that the judge materially erred by (a) failing to consider "important witness evidence" in making his findings; (b) failing to consider evidence from AMA (UK); and (c) failing to address the correct issues when looking at risk on return.
6. As I raised with Mr Mills in oral argument, the evidence from AMA (UK) is not confined to the appellant's sur place activities. According to the permission application, it also contains a purported verification from a source in Pakistan of the former in laws contacting the KN about the appellant, leading to the KN threatening to attack the appellant's house with a view to killing him.
7. So I do not consider that there is a neat segregation of the evidence such that a re-hearing can fairly proceed on the basis that the only live issues are those advanced by Mr Kotas in the Rule 24 Response. Moreover, the judge's adverse credibility findings are rendered unsafe by the acknowledgment that he has not properly considered important evidence relied on as corroborating the appellant's claim, and as thus enhancing his general credibility.
8. I consider that the effect of the concession is that the entire decision is vitiated by a material error of law such that it must be set aside in its entirety, with none of the findings of fact being preserved. However, the evidence given at the previous hearing will be admissible in evidence at the fresh hearing, and it will be open to the Tribunal to take into account, if it is material, the appellant's admission that his fear on return is confined to non-state agents.
9. Given the extent of the fact-finding that will be required at a fresh hearing, and the fact that the oral evidence will have to be re-adduced in its entirety, the representatives are in agreement that the appropriate course is for the appeal to be remitted to the First-tier Tribunal.
Conclusion
10. The decision of the First-tier Tribunal contained a material error of law, such that it shall be set aside.
Directions
11. The appeal is remitted to the First-tier Tribunal in Birmingham for a de novo hearing before any judge apart from Judge Hussain. None of the findings of fact made by the previous Tribunal shall be preserved.

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

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

Signed Date

Deputy Upper Tribunal Judge Monson