Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12789/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 June 2016 & 4 August 2016
On 16 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

I N
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim, Counsel
For the Respondent: Mr L Tarlow, Home Office Presenting Officer (2 June 2016)
Mr E Tufan, Home Office Presenting Officer (4 August 2016)

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Roots) dismissing his appeal against the respondent's decision of 17 September 2015 refusing to grant him asylum.

Background

2. The appellant is a citizen of Pakistan born on 9 November 1977. It is common ground that in February 1999 he joined the Pakistan Air Force and remained in service until he deserted in February 2011. In September 2010 he had applied for early retirement but, on his account, the officer in charge did not look at it. He decided to leave military service and applied for a student visa in the UK which was granted from 11 January 2011 until 21 March 2014. He left Pakistan on 6 February 2011 by plane arriving in the UK on the same day.

3. His student visa was curtailed in May 2012 because his college licence was revoked. He applied to a new college but its licence was also revoked. He made further applications in July 2013 and September 2014 for leave to remain. On 17 December 2014 he was notified by the respondent that in the light of the fact that his college's licence had been revoked the respondent would suspend consideration of the application for a period of 60 calendar days to enable him to withdraw his application and submit a fresh application in a different category or to leave the UK. He then claimed asylum on 23 January 2015.

4. His application was refused for the reasons set out in the decision letter of 17 September 2015. The respondent accepted that the appellant had been in military service and had deserted. It was also accepted that the appellant was on the ECL list, a stop list used at airports to prevent individuals leaving Pakistan or to indicate their interest to the authorities if they return. The respondent further accepted that the appellant had been in active service when he deserted his post. However, it was the respondent's view that he would not be at risk of persecution on return but of prosecution as a deserter. It had not been claimed that any punishment received for draft evasion would occur for a Convention reason or that the appellant had a conscientious objection to serving in the military. In these circumstances, his claim did not engage the Refugee Convention.

5. The respondent went on to consider whether the appellant was entitled to humanitarian protection but found that there was insufficient information to show that prison conditions would breach article 3. The respondent considered the country guidance case in KA and Others v Secretary of State (domestic violence - risk on return) Pakistan CG [2010] UKUT 216 but was not satisfied that there were any specific risk categories affecting the appellant which would lead to a breach of article 3. The respondent also considered the provisions of article 8 but found that the appellant was not able to bring himself within the Immigration Rules nor that there were any exceptional circumstances justifying a grant of leave outside the Rules. She accepted that the appellant suffered from a fistula but, although medical care was poor in Pakistan by comparison to the UK, there was access to such care and there were foundations and hospitals dedicated specifically to the treatment of fistula.

The Hearing Before the First-tier Tribunal

6. At the hearing before the First-tier Tribunal, the judge said that there were essentially two issues concerning the risk the appellant would face on return; firstly, the risk of torture or interrogation in a way amounting to a breach of para 339C or article 3 and secondly, the question of whether his prison conditions would be in breach of article 3 [18]. The judge commented that it was for the appellant to prove his case to the lower standard of proof but he had produced no expert evidence on the risk of torture, what would happen to him on return or as to what had happened to other deserters from the Pakistan Army or Air Force. He said that he was aware that this had been submitted in other Tribunal appeals. Whilst the appellant's credibility in general terms of what had happened to him was not in doubt, that did not mean that he had to accept his assertions about what would happen to him on return to Pakistan as those matters may be outside his knowledge, the appellant having been out of Pakistan for over five years.

7. It was the appellant's claim that the risk of torture was very high as the authorities might not accept that he was simply a deserter as he had deserted whilst on active service and gone abroad. He would, as he put it, be "ripe picking" for investigation and he relied on an email of 6 October 2015 to the respondent as evidence that while such investigations were carried out, he might be mistreated. He claimed that he would be seen as a traitor and that being on the ECL made a huge difference. However, the judge in the light of other evidence before him did not accept that it was very unusual for a deserter to be placed on the ECL [20].

8. When the appellant was asked about where his evidence about the risk of mistreatment came from, he had said that everyone knew but he had also spoken about two months previously to a friend who had joined the air force with him and who was now an intelligence officer at Lahore Airport. He had told the appellant not to return to Pakistan and that he would be treated harshly on return. The judge commented that the appellant had produced no evidence to support these claims. He accepted that a deserter who left Pakistan was likely to be treated differently and probably more seriously than one who remained but he did not accept the appellant's unsupported assertions that particular consequences would follow noting that on his own account he had performed only logistical and supporting roles whilst working in the intelligence unit.

9. On this aspect of the appeal the judge summarised his findings as follows:

"25. I accept that the appellant gave detailed evidence as to what he thought would happen to him on return to Pakistan and I have taken this into account. I accept that he may believe this is what would happen to him. However, he has produced very little, if any, evidence in support.

26. In conclusion, looking at all the evidence in the round, I do not consider that the appellant has discharged the burden on the lower standard of proof to show that he will be regarded as anything other than a simple deserter who would be prosecuted for deserting. I do not find he has established a real risk that he will be persecuted."

10. The judge went on to consider the argument that prison conditions would breach para 339C or article 3. He commented that there was no expert evidence on this issue and he found that the evidence and submissions were confusing. In opening Mr Karim had said that the appellant may face the death penalty but at interview the appellant had said that he would be imprisoned whether for a short or long period. There was no expert evidence or evidence of sentences for other deserters and the appellant had produced the Pakistan Air Force Act 1953 and the Pakistan Army Act 1952 but it was not clear what legislation he was relying on. The email of 6 October 2015 which the respondent produced at the hearing did not provide any clear support for the appellant's submission that his sentence would be very lengthy. However, he accepted in the light of the decision letter at paras 38-42 that it was likely that the appellant would suffer a period of long imprisonment.

11. The judge was not satisfied that the appellant had established that there was a real risk that his likely imprisonment for deserting would amount to a breach of para 339C or article 3. He took into account the evidence about the type of facility where he was likely to be sent and about the appellant's health problems but was not satisfied that these factors established a risk under article 3. So far as the appellant's claim that he would be seen as a traitor was concerned, the judge said:

"36. His evidence was that deserters were not usually put on the ECL and therefore he had been marked out for special attention. However, I have considered this above and do not find that his contentions are reliable."

Accordingly the appeal was dismissed on all grounds.

The Grounds and Submissions

12. The grounds of appeal are lengthy but can be crystallised into the following assertions. It is argued that the judge failed to take proper account of the appellant's own evidence that he was not just relating what he was told about what happened to deserters but was giving evidence of what he had seen. The judge had failed to make any adequate credibility findings on this evidence but appeared to criticise the appellant for a lack of supporting evidence when it was unclear precisely what type of evidence he would expect to see. It is further argued that the judge had failed to give adequate reasons for his decision. He had questioned which legislation would apply but the provisions of the Pakistan Army Act 1952 were clear. The judge had referred to expert evidence which he was aware had been submitted to other Tribunals but it was incumbent upon him to determine an appeal on its own facts and merits. If he had had sight of expert evidence, it should have been disclosed to the parties in the interests of fairness.

13. It is further argued that the judge misunderstood the submissions and evidence advanced on behalf of the appellant by commenting on the fact that his counsel had failed to repeat the submission made in opening about the risk of the death penalty being imposed and had commented that it was not clear which legislation was being referred to, on the fact that his counsel accepted he did not know where the appellant would be sent and that the evidence on that issue was in any event unclear. The judge had failed to give proper weight to the email of 6 October 2015 or to the background evidence when considering prison conditions in the light of the appellant's medical condition.

14. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal (UTJ Gill) for the following reasons:

"The respondent accepted that:

(1) The appellant was in the Pakistan Air Force for about twelve years.
(2) He was a corporal technician and part of the intelligence unit with the air force. He did not gather intelligence himself but worked in logistical support.
(3) He deserted from the air force whilst on active service at the time of desertion.
(4) He is on the ECL list, i.e. a stop list used at airports to prevent individuals leaving or arriving in Pakistan.
(5) He would be arrested on arrival in Pakistan.

It is arguable that the judge may have materially erred in concluding that the appellant was not at real risk of being perceived as a traitor. It is arguable that, in requiring the appellant to produce evidence that he would be seen as a traitor because he had deserted his post and gone abroad, the judge may have applied too high a standard of proof. All the grounds may be argued."

15. Mr Karim adopted his grounds arguing that the reference to expert evidence made by the judge indicated an error of approach in his assessment of the evidence. The judge could not take into account expert evidence from other cases. The likelihood was that for this reason he had drawn an adverse inference against the appellant. The judge had failed to give proper weight to the email of 6 October 2015 from which it could properly be inferred that there would be a real risk to the appellant in his circumstances. The fact remained that the appellant would be investigated on return as he was on the ECL and had deserted to a foreign country.

16. He further submitted that the judge's analysis of prison conditions in Pakistan failed to take all relevant matters into account and in particular the circumstances relating to the appellant, his medical condition and the likelihood that he would be treated as a traitor. In summary, he had failed to give him the benefit of the doubt on issues where the evidence was not clear or to give proper weight to the appellant's own evidence and had placed excessive emphasis on the failure to produce expert evidence.

17. Mr Tarlow submitted that the grounds were no more than a disagreement with the findings of the judge. It was for him to assess the evidence and to make findings in accordance with the lower standard of proof. He had been entitled to conclude that it was not unusual for a deserter to be placed on the ECL. It had been accepted that prison conditions in Pakistan were poor but the judge had been entitled to reach the conclusion that there would not be a breach of article 3 having taken into account the country guidance decision in KA.

Consideration of Whether There is an Error of Law

18. The issue I must consider is whether the First-tier Tribunal erred in law such that its decision should be set aside. The grounds argue that the judge's reference to expert evidence submitted in other Tribunal appeals indicates an erroneous approach to the evidence and that it can be inferred that there was a failure to disclose knowledge of evidence in other cases so that the appellant had the opportunity of dealing with it. However, I do not accept that this is a reasonable inference to draw from the judge's comment. He was entitled to comment on the fact that there was no expert evidence on the issue of what had happened to other deserters from Pakistan but there is nothing to indicate that the judge was aware of the contents of that evidence and still less that he took into account evidence that was not drawn to the attention of the parties.

19. The issue between the parties crystallised into whether the appellant would be regarded as a simple deserter as argued on behalf of the respondent [24] or whether a more serious view would be taken by the authorities in Pakistan with an increased risk of serious ill-treatment. The judge commented at [25] that the appellant may well believe that this would happen to him but he had produced very little, if any evidence in support.

20. The judge was entitled to look at the extent to which the appellant had substantiated his claim and to this extent it was open to him to comment on a failure to provide supporting evidence. However, I am not satisfied that the judge gave adequate consideration to the appellant's evidence in so far as it was unsubstantiated. He failed to consider when assessing the appellant's unsubstantiated evidence the provisions of para 339L of HC 395 and in particular the fact that the appellant's statements are arguably at least coherent and plausible and that his general credibility had been established. Further, there was evidence in the email of 6 October 2015 which was at least capable of supporting the appellant's own evidence that he would be at real risk of serious ill-treatment on return.

21. This is an email relying on information from an anonymous source. In answer to the question

"In your previous email you said 'it has also been confirmed that they are not tortured and not subject to inhuman treatment at all', however looking at COIS on prison conditions in Pakistan, it seems that they can breach Article 3 and there is evidence of torture, etc. Are you able to tell me whether army deserters are sent to a regular prison - or different type? Are you able to say which type of prison they are sent to?"

The response is:

"As stated in my previous email to you, they are not tortured and not subject to inhumane treatment if they are simply deserters and there are no other charges to be investigated or to be confessed and have not been involved in any heinous crimes against the state. If they are arrested by Pakistan police they are taken into custody for a limited period and are then eventually handed over to the military police who then keep them in quarter guards cell/army prison till the military court decides about their fate."

In response to a question whether the source was able to give information of the conditions in this type of prison/gaol that they are sent to, the reply is "Don't know".

22. The answer to the first question above certainly appears to draw a distinction between simple deserters where there are no other charges to be investigated and no involvement in heinous crimes against the state with other cases. As identified in the grant of permission to appeal the appellant was in the Air Force for about twelve years, he was part of an intelligence unit although he did not gather intelligence himself but worked in logistical support, he deserted whilst on active service at the time of desertion and was on the ECL list. In the light of these facts and the guarded answer to the enquiry about the risk of inhumane treatment, I am not satisfied that the judge gave sufficiently anxious consideration to the appellant's evidence about how he was likely to be treated on return or that he properly took into account the information set out in the email of 6 October 2015 in his assessment of the extent of the risk to the appellant. For these reasons, I am satisfied that the judge erred in law and that the decision should be set aside.
23. At the hearing Mr Karim indicated that if the decision was set aside it was his wish to call further evidence and that this should be considered at a re-hearing. Mr Tarlow did not object to that course. In the light of the issues raised I was satisfied that this appeal should remain in the Upper Tribunal and that the parties should have an opportunity of submitting further evidence.
24. Following the directions made at the initial hearing the appellant submitted a further bundle of documents (2A) indexed and paginated 1-55 to supplement the original bundle (1A0 paginated. 1-16 and the respondent produced the Home Office Country Information and Guidance, Pakistan: Prison Conditions Version 2.0 June 2016 (CIG).
Further Oral Evidence of the Appellant
25. The appellant adopted his witness statement dated 4 August 2016 (2A, 1-2) confirming that he entered the UK with a student visa on 6 February 2011. He had enrolled in the Pakistan Air Force as an airman on 19 February 1999 but deserted his unit when he came to the UK. He was a supply assistant in the logistics section, an important and secret unit working in Gwadar, the most important location these days. He would definitely be interrogated due to the leakage of information if he were to be removed from the UK. The unit he had deserted was a monitoring unit which worked under the supervision of the Directorate of Intelligence although his role was in logistic support but he also dealt with the radio signal equipment. He confirmed that his name was on the ECL which meant that he could not even obtain a Pakistani passport. He said that he was sure that he would be tortured and treated inhumanely if he were to be returned because he had deserted and he would be interrogated about the leakage of information since then.
26. In further evidence-in-chief he referred to his statement dated 18 July 2016 at 2A, 4 and the document at 2A, 37. According to this statement his passport expired in November 2013 and that if his name was on the ECL he would not be issued with a passport. He asserted that if any official of the UK or Pakistani High Commission in London could re-issue a passport to him he would withdraw his asylum case. He also referred to the transcript messages at 2A, 33 between him and one of his colleagues and to a text conversation on 16 December 2014 which referred to another colleague who had also deserted and was continually travelling although he did not work in the intelligence unit. The appellant said that it might also be the case that he was not in active service. His last conversation had been the one in December 2004. The appellant confirmed that he had been in active service and worked in the intelligence unit. In the eyes of the authorities it would be regarded as demoralising other personnel who were working in extreme conditions. He had dealt with sensitive radio conversations on confidential frequencies.
27. In cross-examination he repeated that his job was very sensitive. His role was in logistics and he dealt with radio systems and repairs. He was asked about the conversation in 2A, 33 and said that his friend was a deserter but was not on the ECL list and he (the appellant) had worked in Gwadar. He was asked why he had said in his statement of 18 July 2016 that he would withdraw his asylum case if he were issued with a passport. The appellant responded that in fact he would not be issued with a passport as he was on the ECL.
28. In re-examination he re-asserted that he would never be issued with a passport and that he could not go back there. He had claimed asylum when he learnt that his name was on the ECL list. Even if he could get a passport, he would not return.
Submissions
29. Mr Tufan said that, although it had been conceded in the decision letter that the appellant was a deserter, his role had been quite minor and his behaviour arose from the fact that he had not been promoted. He submitted that in his evidence the appellant had sought to exaggerate his role and the reality of the position was that his status was nowhere near serious enough for there to be a real risk of harsh treatment on return. It appeared the appellant had a fear of prosecution, not of persecution. So far as prison conditions were concerned, he referred to 3.11 of the CIG saying that, whilst prison conditions were extremely poor in Pakistan, in general they were not so systematically inhuman and life threatening as to meet the threshold of article 3.
30. Mr Karim adopted his skeleton argument of 1 August 2016. He submitted that there were three issues, whether the prosecution would be oppressive and would put the appellant at risk of a death sentence or unduly lengthy imprisonment, whether he would be subject to treatment contrary to Article 3 whilst in detention and whether the prison conditions would be such that there would be a real risk of a breach of article 3. He submitted that the appellant was at risk as someone who had deserted from the Air Force whilst on active service and was on the ECL list. It was not argued that he had been involved in gathering intelligence but he had been involved in using sensitive equipment where, if something went wrong, others could listen in. It was a real possibility, so he argued, that as a deserter on the ECL any subsequent investigation might lead to torture and ill-treatment. Further, the prison conditions in Pakistan, particularly in the light of 5.3.4 of the CIG taken with the fact the appellant suffered from a fistula would lead to a breach of article 3 or at least to a breach of article 8. He further argued that there was a real prospect that the appellant would be at risk of being subject to the death penalty as someone who would be regarded as guilty of mutiny and subordination (see 6.1.1 of the CIG).
Assessment of the Issues
31. Much of the appellant's evidence is not in dispute. It has been accepted that he was in the Pakistan Air Force for about twelve years, working as a technician as part of an intelligence unit with the Air Force. He worked in logistical support. He deserted whilst on active service and his name is on the ECL list.
32. It is common ground that as a deserter, were he to be returned to Pakistan, there was a substantial degree of likelihood that he would be detained and referred to the military authorities for them to consider what action to take. The fact that the appellant would be referred to a military tribunal and not to a civil tribunal with no right of appeal to a civil tribunal is confirmed by the documentary evidence which has been produced (2A, 29-30).
33. When interviewed at Q68 the appellant said that his life would be in real danger if he had to go back. He would be detained and the intelligence would first put him through lots of interrogation and he was sure he would be tortured to get any information about whether he had shared any state secrets with any person or countries. If he were put through this punishment and interrogation, he would be rigorously punished. He said that they would put a charge of mutiny because in their eyes he had committed treason and had demoralised his colleagues. He gave further details of his fears at Q102 and at Q103 and said that he had not shared any secret or any information with anybody but questioned whether the intelligence officers could be trusted saying that if anything was put on his file as evidence that he had done so then he would be subject to the death penalty and that every day someone was executed in Pakistan.
34. The extract from the International Commission of Jurists Report June 2016 (2A, 26-7) records that Pakistani military courts are not independent and that the proceeding before them fall far short of national or international fair trial standards. Judges or military officers are part of the executive branch of the state and do not enjoy independence from the military hierarchy. Further, the Pakistani army does not guarantee either public trials in court martial or public hearings in court martial appeals and civilian courts have no appellate jurisdiction over decisions of the court martial.
35. So far as prison conditions are concerned, the CIG confirms that prison conditions are extremely poor (3.1.1) and that an unofficial six year moratorium on judicial executions was ended in December 2014 since when hundreds of executions have been carried out (2.4.1). At 5.2.2. the Human Rights Commission of Pakistan's Annual Report for 2014 noted that in some prison barracks a few convicts had to stand while the other slept and prisoners could not access the washroom in the night because sleeping prisoners covered the entire barrack floor. Such conditions amounted to ill-treatment and were beyond the punishment of penal confinement prisoners had to bear. According to the same report (5.3.4) the condition of prisons in Pakistan remained dismal and there were chronic issues such as overcrowding, lack of proper healthcare system, inferior quality food, corruption and rampant torture in the year under review.

36. Although torture in custody is contrary to the Pakistan Penal Code, nonetheless the HRCP 2015 Annual Report (5.4.2) stated that "custodial torture remain one of the gravest and most pressing human rights issues in Pakistan".

37. It is against this background that the information sought by the respondent and set out in the chain of emails between June and October 2015 must be set. In response to an enquiry in an email dated 22 July 2015 it is confirmed that people whose names are on the ECL, if lucky enough not to be noticed during their exit from Pakistan, are arrested and handed over to the relevant military authorities on their arrival. It is then said that it has been confirmed that they are not tortured or subject to inhumane treatment at all. Further enquiries were made leading to the response in the email of 6 October 2015 already set out at [21] above.

38. The email also refers to the following question:

"Also, in a previous email you talked about them going to country jail and then sent back to military service - which sounds less harsh than what the law implies - 'lengthy sentence/death penalty'". Do you know how long they are likely to be imprisoned for?"

The answer is:

"They are sent to country prisons after the decision made by military court if they are to be jailed/sentenced for number of months/years. 'Lengthy sentence/death penalty' is only awarded in case of heinous crimes or crimes against state. The length of imprisonment depends on the charges."

39. Drawing the threads of the evidence together I am satisfied that it establishes that there is at least a reasonable degree of likelihood that the appellant as a deserter whilst on active service whose name is on the ECL would be at real risk of ill-treatment during his interrogation and detention, in breach of article 3, before being put on trial before a military tribunal. The reference in the CIG at 5.4.1 to "custodial torture being rampant in jails and police stations" taken with the guarded response to the first question in the email of 6 October 2015 which only says that those who are simply deserters are not tortured and not subject to inhuman treatment satisfies me that there are substantial grounds for believing that there would be such a risk for this appellant in his particular circumstances. For the sake of completeness I should add that the evidence relating to whether the appellant would be at real risk of a death penalty is tenuous and does not reach the standard required to justify a grant of leave under article 3 on that basis alone. Again, so far as general prison conditions are concerned, I find that a real risk arises so far as the appellant is concerned because of the risk of detention as a deserter in prison barracks.

40. In his evidence the appellant said that he would withdraw his asylum claim if he were to be issued with a passport. Prima facie this could be treated as evidence that he is not afraid of returning. However, I am satisfied that the appellant was seeking to emphasise his conviction that he would not be in fact issued with a passport and was not in any way indicating that he was not afraid of returning, a position which in any event would be at odds with the way his application has been put from the beginning.

41. For these reasons I am satisfied that the appellant would be at real risk of treatment contrary to article 3 were he to be returned to face the consequences of his desertion from the Pakistani Air Force. It follows that he is entitled to humanitarian protection. The fear of harm does not arise for a Convention reason and so does not engage the Refugee Convention.

Decision

42. The decision of the First-tier Tribunal has been set aside. I re-make the decision by allowing the appeal on humanitarian protection grounds. No application has been made to vary or discharge the anonymity order made by the First-tier Tribunal which remains in force until further order.

Signed H J E Latter Date: 15 September 2016

Deputy Upper Tribunal Judge Latter