Tribunal decisions

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13471/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 19 April 2017
On 24 April 2017

Before

Deputy Upper Tribunal Judge Pickup

Between

Shazia Iqbal
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the appellant: Ms N Ahmed, instructed by Britain Solicitors
For the respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant’s appeal against the decision of First-tier Tribunal Judge Austin promulgated 26.9.16, dismissing on all grounds her appeal against the decision of the Secretary of State, dated 26.11.15, to refuse her protection claim.
2. The Judge heard the appeal on 19.8.16.
3. First-tier Tribunal Judge Baker refused permission to appeal on 17.10.16. However, when the application was renewed to the Upper Tribunal, Upper Tribunal Judge Canavan granted permission to appeal on 12.12.16.
4. Thus the matter came before me on 19.4.17 as an appeal in the Upper Tribunal.
5. In granting permission to appeal, Judge Canavan found that it was at least arguable that in stating at [44] that the appellant did not claim that her husband sought her out and was violent towards her, the judge may have erred in failing to take into account material evidence given in interview at Q83 & Q85.
6. The Rule 24 reply, dated 10.1.17, asserts that the judge gave adequate reasons for finding that the appellant is not credible and that these were set out at [38] to [45] of the decision.
7. However, I found that there was no error of law sufficient to require the decision of Judge Austin to be set aside. I reserved my reasons, which I now give.
8. Ms Ahmed relied on what the appellant stated in interview. At Q83 she said that she had left home on several occasions but he would come and forcibly take her home. At Q85 she was asked if she knew how he managed to track her down on each occasion. She said she was not aware, but thought because she was unable to change schools he might have followed the children from school. It was submitted that these statements demonstrated that the judge made a material error at [44].
9. What the judge stated at [44], to the effect that appellant did not claim that her husband sought her out and was violent towards her, may not be strictly accurate by looking at the interview in isolation, but neither is it correct to categorise this as an error of law, as it ignores consideration of the decision as a whole. The judge was entitled to take into account not only what the appellant had said in interview, but had the advantage of hearing her oral evidence. The relationship was more nuanced that the black and white way it had been portrayed in the protection claim. The judge noted that the appellant accepted that there was a pattern of separation and reconciliation, and that when the reconciliations failed she was able to leave her husband again and move away to another part of the same area. In making the credibility findings the judge also took into account that the appellant was deceptive in her own application. The judge also found that her account of fearing her own family on return to Pakistan was not made out. As noted at [21] the appellant agreed in evidence that she had never been approached by any member of her family and that they had never threatened her, save for the time that she had approached the family home. The last threat had been some 12-13 years previously, although she lived about an hour away on the bus from her parents’ home. She conceded she had only ever been threatened by her family when she had approached them and that they would not be bothered to look for her, wherever she was.
10. The judge was also entitled to consider that even on her own account she separated from her husband on many occasions and said that she voluntarily returned to to him, for the sake of the children. Her son’s evidence was that they had split up and reconciled on a number of occasions. He had stayed with his father whilst at hospital after an injury when his father ran over his foot, possibly by accident, following an argument. However, after leaving hospital he was able to return to live with his mother and was not prevented from doing so by his father. The judge also took into account the assessment as to whether the husband had any further motivation to seek out the appellant.
11. It was only after taking all of this into consideration that whilst at [43] the judge accepted that there was “some evidence” that she had suffered domestic violence at the hands of her former husband, when the family were all living together, but concluded, she “has not shown that the former husband has any interest in her if she was to return to Pakistan.”
12. In the circumstances, I am not satisfied that the error claimed is made out. The judge clearly concluded that notwithstanding past violence and a history of separation and reconciliation, at least some of which appears to have been voluntary, that the appellant faced no real risk from her husband, or for that matter from her own family.
13. Ms Ahmed also relied on an alleged error of law at [40], where the judge found that the appellant was inconsistent as to whether in her view she was the first or second wife of her former husband, and Ms Ahmed pointed to [18] where the judge recorded that the appellant consistently denied that she was the second wife and that she had married the husband first and that the other woman became the second wife. However, it is clear from [40] that even if the judge was in factual error on this point as the judge found that nothing turns on it, stating “I don’t not find that this particular aspect of the evidence affects her credibility.” In the circumstances, if there is an error, it is not material, as the first/second wife issue was not relied on against the appellant.
14. In granting permission to appeal, Judge Canavan also stated that, “In assessing the risk on return from her husband, and the availability of internal relocation, the decision maker would also need to consider whether, in the context of his own application for entry clearance, her husband might have had an incentive to lie about whether he wanted to live with the appellant in circumstances where he was applying to join his first wife in the UK.”
15. However, it is clear from the decision that this very issue was carefully considered by the First-tier Tribunal Judge. At [20] the judge noted that it had been put to the appellant in her evidence that in his interview in November 2014 with regard to his entry clearance application, her husband had stated that he did not want anything to do with the appellant and had no interest in her, which is why he did not mention her in his application. The appellant’s response was also noted, to the effect that it was obvious that he would say that, as it was in his interests to lie.
16. At [43] the judge concluded that the appellant had not shown that the former husband had any interest in her if she were to return to Pakistan. He had been interviewed knowing that his visa application had been rejected. The judge noted the appellant’s case that the husband would naturally have lied about not having any interest or relationship with the appellant because it was in his interest to do so. The judge considered but rejected this argument, stating, “I find that this is unlikely to be the case and it is more likely that he would have sought to be consistent in what he had to say compared to what had been said in regard to the appellant’s visa application, and that it was not in his interests to have made the concessions that he did about the appellant and her status in regard to him. I do not accept that it was in his interests to say what he said about the appellant during his interview, or that what he said was untrue.”
17. It follows that the First-tier Tribunal properly considered this issue, giving cogent reasons, for dismissing the suggestion that the husband had lied or had an incentive to lie about his lack of present interest in the appellant. There is no material error in this ground of appeal.
18. In any event, none of the alleged errors of law are material to the outcome of the appeal as the appeal in the First-tier Tribunal also failed on the issue of relocation. At [45] the judge found that even if she had a well-founded fear of persecution or serious harm from her husband or her own family, “it is also clear that she would be able to relocate to another area.” Cogent reasons are given for this conclusion. However, the relocation findings are not the subject of appeal. They are not challenged in the grounds of application for permission to appeal and no permission has been given in respect of this issue. It follows that even if there were errors of law elsewhere in the decision, they cannot be material, as they could not have changed the outcome of the appeal. Even taken at its highest, the protection claim failed on relocation. In the circumstances, there is no merit in this appeal to the Upper Tribunal and it cannot succeed.
Conclusions:
19. For the reasons set out above, the making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law such that the decision should be set aside.
I do not set aside the decision.
The decision of the First-tier Tribunal stands and the appeal remains dismissed on all grounds.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
I make no fee award.
Reasons: No fee is payable and thus there can be no fee award

Signed

Deputy Upper Tribunal Judge Pickup

Dated