Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12440/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 16 November 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

MR ZAHID MEHMOOD
(No anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D McGlashan, McGlashan MacKay, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DECISION AND REASONS

1) This is an appeal against a decision by Judge of the First-tier Tribunal Agnew, who dismissed an appeal on asylum and human rights grounds.

2) The appellant was born on 8 November 1987 and is a national of Pakistan. His asylum claim is based on his membership of the Jammu Kashmir Liberation Front (JKLF), which he joined in 2008. On 2 March 2011 he attended a public meeting of the party which was raided by the police. The appellant was injured and taken to hospital. While there he was informed that there was a First Information Report (FIR) issued against him by the police. The appellant went into hiding. The police went to look for the appellant at his home and detained his father for 4 days. The appellant's brother was arrested as part of the attempt by the police to find the appellant's whereabouts.

3) The appellant already had a visa to come to the UK to study. His party advised him that as he already had this visa he should leave and go to the UK. The appellant escaped from Kashmir hidden in a coffin. In Pakistan he used his own passport to leave because there was no arrest warrant against him.

4) The appellant arrived in the UK on 9 April 2011. He went to college for 2 weeks but then ceased attending when the college demanded full payment of his fees. The appellant was informed that the police in Kashmir were beating up his father and brother to obtain information about him. At this time the appellant was staying with his father's brother in the UK. The appellant's father telephoned his brother to say that as far as he was concerned the appellant was dead. A month later the appellant moved out of his uncle's house.

5) The Judge of the First-tier Tribunal did not believe that the appellant had been involved with JKLF as he claimed. The judge did not believe the appellant had fled to the UK and that it was just a coincidence that he happened to have a student visa for the UK just at the time he found it necessary to leave the country. The judge found that the appellant's credibility was damaged by not having claimed asylum before October 2014, when he was arrested for road traffic offences. The judge noted that the appellant had made a human rights application in 2013, at which time he had the benefit of legal advice. Nevertheless he did not mention a fear of returning to Pakistan at that time. The judge also considered documentary evidence lodged on behalf of the appellant and found that the documents concerned were not reliable.

6) The application for permission to appeal was made on a number of grounds. The first was that the appellant had unfairly been refused an adjournment. Secondly, the judge made no finding on whether the incident alleged by the appellant on 2 March 2011 when the police raided the JKLF meeting had taken place. This went to the core of the appellant's claim. Without a finding on this the other findings made by her were irrelevant or premature.

7) The third ground was that it was irrational to find that the appellant's credibility was adversely affected by his not having claimed earlier. The appellant had leave to enter the UK from January 2011. There was no reason in his mind why he should complicate matters by making a separate application for refugee status. This was the position until his human rights appeal failed, though his focus was not so much on what might happen if he returned to Kashmir but what would happen if he had to leave the UK.

8) In the grant of permission to appeal it was said that the judge was correct to refuse the adjournment application and this issue had been dealt with appropriately. The appellant had ample time and opportunity to adduce evidence from Kashmir from 2011. The judge set out the history of adjournment applications made by the appellant.

9) It was nevertheless arguable that the judge failed to make any or adequate findings upon whether the incident alleged on 2 March 2011 took place as claimed by the appellant. It was at least arguable that the judge failed to make findings on whether the appellant was beaten on that date as he claimed. This incident, as well as the appellant's claimed membership of a political party, was at the core of his claim.

10) A rule 24 response was lodged on behalf of the respondent. This states that the judge identified issues of credibility and inconsistency relating to the appellant's knowledge of the party he claimed to belong to and its activities. The judge noted the appellant's contradictory evidence about giving up teaching in Pakistan to concentrate on working for the party only to come to the UK in 2011 as a student, where he attended college for only 2 weeks. The judge made an unchallenged finding that the appellant had been working full time since his arrival in the UK in 2011. The judge took into account the appellant's delayed asylum claim and properly considered the documentary evidence. The judge was clearly aware of the basis of the appellant's claim and considered all the evidence in the round. It was unarguable that the judge failed to identify, consider and determine the core of the appellant's claim.

Submissions

11) In his submission at the hearing Mr McGlashan said that it should be possible to see from the judge's decision why certain points were accepted or rejected. The judge had not commented on the central core of the case. There was no indication whether the judge had accepted as credible the evidence of the incident alleged to have occurred in March 2011. This was a fundamental flaw. Mr McGlashan relied on the decision of the Inner House in Wordie Property Ltd 1984 SLT 345, in terms of which the reader must be able to see clearly why their case was refused. In addition the appellant claimed to have sustained injuries at this incident on 2 March 2011. Although in the rule 24 notice the respondent said that the decision was sufficient, the principle was so fundamental as to amount to an error of law. The appeal should be remitted to the First-tier Tribunal to be heard anew.

12) Mr McGlashan then turned to the other points in the application for permission to appeal. In the grant of permission to appeal it was said that all the grounds were arguable and this included the judge's decision to refuse an adjournment. In her decision the judge referred to the fact that a supplementary bundle had been lodged by the respondent. This contained information about a telephone call made to a police station in Kotli. The appellant had at the time of the adjournment application been attempting to obtain information from his advocate in Pakistan regarding the FIR against him. If the police knew this they would say in response to an inquiry on behalf of the Home Office that the FIR produced did not match their records. In relation to this issue the evidence relied upon by the respondent was of a phone call. There was no documentary evidence in support of this. The appellant should have had a reasonable opportunity to challenge this evidence, especially as at paragraph 58 the judge referred to the possibility that the police would not want to confirm that any document relating to the appellant was genuine because they would not want to support his asylum claim. An adjournment was sought only to obtain information. The judge was told that the appellant's representative had spoken to the advocate in Kashmir on the telephone and the advocate was arranging for the sending of documentation.

13) Mr McGlashan referred to paragraph 3 of the decision where the judge found an inconsistency in the documentary evidence as to whether there was one FIR against the appellant or a number of legal cases against him. Mr McGlashan submitted that this was not necessary a conflict as such matters might not be recorded in the same way as in the UK. Mr McGlashan relied on the decision in Kasolo (13190) AIT, 1st April 1996, unreported.

14) Mr McGlashan continued that the judge referred to the appellant's supposedly vague knowledge of his party. The judge found the appellant was vague about his party's aims and objectives. At paragraph 27 a comparison was made between the appellant's evidence and the aims and objectives of the party as published on their website,. Mr McGlashan submitted that this was not a point which was open to the judge. The judge had the appellant's membership card on which it said that the aim of the party was to secure an independent Kashmir. Furthermore the appellant had given detailed responses at interview, at B11 from Q63 onwards. The judge had not given proper reasons for her decision on this point.

15) Mr McGlashan continued that at paragraph 34 of the decision the judge referred to a speech written by the appellant at the request of his representative. The judge noted that on each page of the speech drafted by the appellant there was an entry reading "chanting slogans". The judge commented that this was not what she would have expected to have seen. Again this was a comment on what might be expected in the UK and was inappropriate in terms of Kasolo. A politician would know how to put things across to people.

16) In conclusion Mr McGlashan said that the judge was required to take into account the whole case and not just the points against the appellant.

17) For the respondent, Mrs O'Brien relied on the rule 24 notice. The issue of the adjournment was dealt with in the grant of permission to appeal and by the judge at paragraphs 17-20 of the decision. The appellant may have been dissatisfied with the decision not to adjourn but it was not unfair.

18) Mrs O'Brien continued that it was argued for the appellant that reasons could not be discerned from the decision. The reasoning was clear when the credibility findings at paragraph 26-59 were looked at. The judge did not accept that the FIR was reliable. The judge did not accept the appellant's evidence about his knowledge of his political party. There were also section 8 issues. The judge looked at all the elements and rejected the appellant's claim to have been involved in politics. It might have been better if the judge had said that for all the reasons given in relation to credibility she rejected that the incident alleged in March 2011 had taken place but even without this it could not be said that the judge had not given adequate reasons for rejecting the appellant's account. There was nothing irrational about the decision. It was not unclear why the judge had not found in favour of the appellant. There had been no unfairness by the judge in not acceding to an adjournment. The judge had made clear and discernible findings on the whole of the claim and had rejected the claim. There was nothing in the contention on behalf of the appellant that the judge had been wrong to take account of the delay by the appellant in claiming asylum.

19) In response Mr McGlashan returned to the timeframe in which the adjournment application was made. There was a first adjournment in May 2016 owing to a lack of court time. The second adjournment in June 2016 was because the respondent had lodged additional documents. The judge at that time gave 2 weeks to the appellant to obtain information. Further documentary evidence by the appellant was to be lodged 7 days prior to the next hearing. The appellant was unable to obtain information within this timescale owing to the absence from his office of his lawyer in Kashmir. It might be that there was evidence available on the FIR which was not before the judge.

20) Mr McGlashan further submitted that in relation to the appellant's involvement in politics, it could not be said the appellant had been vague in his responses at interview.

21) Returning to the decision in Wordie Property Ltd, Mr McGlashan repeated that the reader could not see exactly why the decision was refused. The judge had not followed proper legal principles.

22) In relation to the delay in claiming asylum, Mr McGlashan submitted claims were often made late. The appellant had gone down the route of seeking to change his visa. Once he had exhausted this route he claimed asylum. He had attended college but was not able to meet the requirements for language certificates. The relevant documents had been sent to the Home Office. The delay in claiming asylum was not central to the claim.

Discussion

23) I will begin by addressing the question of the adjournment. Although the judge's decision to refuse the adjournment was described in the grant of permission to appeal as correct, nevertheless Mr McGlashan thought this was an issue worth pursuing at the hearing before me, observing correctly that permission was granted on all grounds.

24) The Judge of the First-tier Tribunal sets out at paragraph 20 the history of the adjournments in this appeal. The first adjournment in May was due to the lack of court time. The second adjournment in June was because the respondent had lodged new papers relating to the FIR, following inquiries made by telephone of the police station in Kotli. The hearing was adjourned for around 10 days with further documents to be lodged no later than 7 days before the hearing. When the next hearing date, 23 June 2016, arrived, an adjournment was sought by the appellant because his lawyer in Kashmir had "gone away for Ramadan" but wanted to obtain evidence for the appellant. A further adjournment was granted. There was then a request for an adjournment made in writing on 17 August 2016 because documents were still awaited from the lawyer in Kashmir. The judge points out it was then 2 months since an adjournment was granted for the purpose of obtaining these documents. It appeared that the lawyer in Kashmir knew that the hearing had been re-listed for 19 August 2016 but had not sent any documents either by fax or email. The judge considered that the appellant had had notice for a considerable time about the respondent's concerns about the reliability of the documents produced. There had been ample opportunity to obtain evidence in response.

25) The judge records that the application made on 17 August was renewed at the hearing. Mr McGlashan pointed out that he was on holiday when additional documents were lodged by the Home Office. He said he had been in touch with the appellant's lawyers the previous day and had been expecting him to send further documents. These had not yet materialised. Mr McGlashan further stated that a witness from the appellant's party had arranged to attend the hearing in June but could not attend the hearing on 19 August.

26) In relation to the witness from the appellant's party, the judge pointed out that in the reply notice submitted on behalf of the appellant in May 2016 there was no mention of this witness. No witness statement had been provided from him. His inability to attend was not raised in the application of 17 August. The judge considered there had been ample time to produce evidence from a further witness and it was not appropriate to adjourn again in the hope that he might attend a future hearing. The judge took into account the direction made at the adjournment on 10 June for any further being lodged on a date 7 days before the hearing on 23 June. The judge took into account also the overriding objective in the Procedure Rules and a party's obligation to co-operate with the Tribunal to secure that proceedings were handled fairly and justly whilst avoiding delay. The judge did not consider the arguments advanced by Mr McGlashan justified any further delay. The adjournment was refused.

27) In my view these reasons speak for themselves. The appellant had had ample time to obtain evidence from Kashmir to refute the additional evidence lodged by the appellant on 10 June 2016. In relation to the witness, there had been ample time for the appellant to lodge a witness statement, as directed in the standard directions issued by the Tribunal but no witness statement was before the judge. There was also a significant query as to why there was no mention of this additional witness in the written application for an adjournment of 17 August. For all the reasons given the judge was fully entitled to refuse the adjournment.

28) I turn next to the judge's treatment of the appellant's delay in claiming asylum and whether she was entitled to take this into account in the way she did. The judge addressed this issue at paragraphs 42-46 of the decision. The judge records at paragraph 42 that the appellant was asked at the hearing why he did not claim asylum in 2011. He said "he was not aware of asylum cases". It was pointed out that the appellant had taken legal advice to make various applications. The judge had said in a previous appeal in 2014 that in 2011 he had only one FIR against him and the case was proceeding without any warrant of arrest having been issued. The judge did not accept this explanation. Once an FIR was issued the police could investigate and arrest the person concerned without a warrant. The judge pointed out that the appellant claimed he had been smuggled out of Kashmir hidden in a coffin and he claimed to have been terrified of being arrested and killed. He further claimed that he had had to leave Pakistan to avoid being imprisoned for life.

29) It was pointed out to the appellant at interview that in 2012 he had made an unsuccessful application and did not appeal against the decision. He then made another application to remain on the basis of a human rights claim. This was refused and a decision was made to remove the appellant. He was asked after his application was refused why he did not make arrangements to return to Pakistan and replied that he was in danger there. The appellant claimed that he had come to the UK because of this danger and could not return in 2013 because of the danger. He had also claimed that he did not feel he was in real danger until he heard of an arrest warrant issued against him in 2014. The judge did not accept this explanation but found it was a belated attempt to explain why he had failed to claim asylum since his arrival in the United Kingdom in 2011.

30) At paragraph 44 the judge points out that the appellant had legal advice when he made his human rights claim in 2013. The judge did not believe that if the appellant actually had any fear of returning to Pakistan he would not have mentioned this during the process even if, for reasons which were difficult to comprehend, he chose not to mention any problems before which made it impossible for him to return to Pakistan. Claiming that he did not feel he was in real danger until after he was notified of the existence of the arrest warrant did not explain why he did not claim asylum once he discovered there was an arrest warrant. He claimed to have been notified of this warrant a few days after its issue in June 2014. At the end of September 2014 the appellant was arrested for road traffic offences. Removal directions were set for 8 October 2014. The appellant claimed asylum on 10 October 2014. According to the judge all the evidence, "save for the appellant's own claims which were contradictory and implausible" pointed to this late claim for asylum being "a last ditch attempt to remain" in the UK when all other efforts had failed. This significantly reduced the credibility of the appellant's claims to have been living in fear of what might happen to him in Pakistan since 2011.

31) I find it difficult to find any fault in the judge's reasoning in relation to the delay in claiming asylum. The judge did not make the mistake of relying upon the delay as a decisive factor, or making an adverse finding in relation to a delay before making adverse findings on other aspects of the evidence. The judge made the finding in relation to the delay in claiming asylum as part of her overall assessment of the evidence, as she was entitled to do.

32) The appellant attempted to use the application for permission to appeal to produce further reasons, seemingly not given at the hearing, as to why he did not claim asylum earlier. According to the application the appellant had obtained leave to enter the UK in January 2011 and "there was no reason - in his mind - why he should complicate matters by making a separate application (because that in effect would be what a grant of refugee status would come to)". Such an explanation, taken with the chronology of events set out by the judge, does nothing to detract from the judge's conclusion that the asylum claim was a last ditch attempt to remain in the UK. I make no comment on the appellant's attempted use of the application for permission to appeal for an attempt to adduce evidence which was not given at the hearing before the First-tier Tribunal.

33) At the hearing before me Mr McGlashan commented that applications are often made late. This may be so but the judge is always entitled to look for reasons or explanations as to why the application was not made earlier. The explanation Mr McGlashan sought to put forward at the hearing, although this was not quite the same, it seems, as the explanations offered by the appellant at the hearing before the First-tier Tribunal Judge, was that in effect the appellant attempted to use very other possible means to remain in the UK and only when he had exhausted these did he claim asylum. Again, there is nothing in this to detract from the judge's findings that this was a last ditch attempt to remain. There is no error of law in the way in which the judge drew an adverse inference from the delay in claiming asylum.

34) This leaves the central part of the appellant's grounds for appealing to the Upper Tribunal, which was that the Judge of the First-tier Tribunal made no finding about the alleged incident in March 2011 and the related events, such as the beating the appellant claims he incurred, and the detention of his relatives.

35) Mrs O'Brien submitted that it might have been better if the judge had made a clear finding to the effect that she did not accept as credible the appellant's claims that the events of March 2011 took place as he alleged. Nevertheless, I agree with Mrs O'Brien that there is sufficient in the judge's findings and in her reasoning to show that she did not accept the appellant's evidence about his reasons for claiming asylum. Implicitly the judge's adverse credibility finding included rejecting his account of the alleged events of March 2011. There is no ambiguity at all in the decision to the effect that the judge rejected in its entirety as lacking in credibility the appellant's account given by him as the basis of his asylum claim.

36) The judge made her adverse credibility findings not by reference to the events described by the appellant in March 2011 themselves, but by other aspects of the appellant's evidence where there were inconsistencies or discrepancies. This was something the judge was entitled to do.

37) In particular, the judge considered the appellant's claim that he had been involved in political activity in Kashmir and rejected it for detailed reasons, which were given at paragraphs 27-34 of the decision. Mr McGlashan sought to undermine the judge's reasoning by saying, in particular, that the appellant had not been vague when questioned about his party's policies and had properly expressed its aims. Mr McGlashan further submitted that at paragraph 34 the judge had been wrong to criticise in the way that she did the political speech supposedly written by the appellant at the request of his representative.

38) When assessing the appellant's state of knowledge about his party the judge took into account the appellant's claim that he had been an experienced and prominent member of the JKLF. The judge was entitled to proceed on this basis. The judge looked at the speech written by the appellant and commented that she did not attach any weight "to the claim the contents of this document were written by the appellant as a speech simply because it is in his handwriting". This was a finding the judge was entitled to make for the reasons which she gave. There is no Kasolo point here, as submitted by Mr McGlashan. The judge in effect was saying that it may well be a genuine speech of the sort that might be made by a politician in Kashmir but she was not satisfied that it was the appellant's own work.

39) In considering credibility the appellant went on to consider the history of the appellant's studies in the UK. The judge pointed out at paragraph 35 that according to the appellant he gave up his teaching job because he wanted to concentrate fully on his work for the party. Yet at the beginning of 2011 he decided to come to the UK to study. According to the judge these claims were contradictory. Again this was a finding the judge was entitled to make.

40) At paragraph 37 the judge pointed out that in the evidence given before her the appellant said he studied for 2 weeks after arriving in the UK but could not continue because he had no funds. Earlier, however, the judge recorded that the appellant had said to the Home Office in relation to his human rights application of February 2013 that the course did not meet this expectations. He informed the Home Office of this and was in the process of finding an alternative college.

41) At paragraph 40 the judge noted the appellant did not continue with his studies. He was asked at interview how he had been supporting himself since 2011 and replied that he was staying with a cousin so did not have to pay anything. Sometimes he used to deliver menus door to door and get some money for that. The judge noted that the appellant had been in the UK for 5 years and considered it was far more likely that he had been working full time since his arrival and that his purpose in coming to the country was not to study but to work.

42) The judge further pointed out that although the appellant claimed to have been in hiding in Pakistan from 2 March he did not leave the country until 9 April, despite having a UK visa since January and funds from his father and from his party. This was a further matter the judge was entitled to take into account.

43) The judge considered that documentary evidence lodged on behalf of the appellant at paragraphs 47-59. The judge looked at the evidence in the round, in accordance with Tanveer Ahmed [2002] UKAIT 00439. In relation to the FIR the judge took into account the Document Verification Report from the respondent and the appellant's response. She described the appellant's response as "they would say that, wouldn't they", meaning that the appellant was contending that the police would not want to support his asylum claim by confirming the documents in question as genuine. According to the appellant, the police wanted him to return to Pakistan so they could kill him. The judge said entirely fairly that this was a possibility. The judge considered that despite this contention the evidence of the respondent in the Document Verification Report could not simply be put aside. The judge noted that there were details in the report of why the numbers did not match with the documentation the police station held.

44) In a sense this brings me full circle to the question of whether the appellant had an adequate opportunity to bring forward evidence to refute the Document Verification Report relied upon by the respondent. I have already determined that the judge was entitled to find that the appellant had had an adequate opportunity to do this and there was no unfairness in refusing a further adjournment for this purpose. Furthermore, the appellant's credibility was so severely damaged by the other factors referred to by the judge in her decision that his explanation that the police would deliberately tell the respondent that the FIR was not genuine in order to secure the appellant's return to Pakistan was not an explanation to which any credence was reasonably likely to be attached.

45) I have considered in detail the reasons given by the judge for her adverse credibility findings and the submissions made on behalf of the appellant why these findings and the reasons for them were inadequate. I am satisfied that the findings made by the judge were findings which she was entitled to make upon the evidence and that the reasoning she has given was adequate and valid. There is no error of law in the judge's findings and accordingly her decision should stand.

Conclusions

46) The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

47) I do not set aside the decision.

Anonymity

48) No order for anonymity was made by the First-tier Tribunal. I have not been asked to make such an order and I see no reason of substance for doing so.

Signed Date

Upper Tribunal Judge Deans