Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/10960/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 9 January 2017
On 06 February 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

mr khalil mukhtar
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Moksud, IIAS (Levenshulme)
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS

1. In a decision sent on 1 August 2016 First-tier Tribunal (FtT) Judge Lodge dismissed the appellant's appeal against a decision made by the respondent on 27 October 2015 refusing his application for leave to remain on human rights grounds. The grounds are essentially twofold. First they contend that the judge had not conducted a proper proportionality assessment of the appellant's Article 8 circumstances; second, they argue that the judge had erred in failing to weigh in the balance the evidence of the witness Mr Amir Wahid who attended ready to give evidence. It was pointed out that having noted in paragraph 12 that Mr Wahid was in attendance and was available to give evidence and that the Home Office Presenting Officer indicated she had no cross-examination, the judge should have attached weight to his evidence.

2. I am not persuaded that the grounds singly or cumulatively, identify a material error of law. It is true that the judge's treatment of the appellant's Article 8 is relatively short and does not expressly mention Razgar and the five steps. However, it is clear from the judge's references in paragraph 25 and paragraph 26 to "proportionality assessment" and considering the judge's decision as a whole, that he conducted a sufficiently adequate balancing exercise and that this properly followed his earlier examination of whether the appellant could meet the requirements of the Immigration Rules. That the appellant could not succeed under the Rules had already been conceded by his Counsel on that occasion (Mr Usmar, see paragraph 14), but very properly, in view of the two-stage approach enjoined by leading cases, the judge considered the appellant's circumstances under the Rules. In this context it was entirely within the range of reasonable responses for the judge to conclude that the appellant had not shown (as required by paragraph 276(1)(vi)) that there were very significant obstacles to his integration in Pakistan.

3. As regards the judge's assessment of Article 8 outside the Rules, it is clear that the judge correctly considered that if his claim was to succeed it would have to be on the basis of private not family life. The appellant does not seek to argue that his relationship with his brother and friends constituted family life for the purposes of Article 8(1). In relation to private life, the judge expressly accepted that the appellant had established private life: see paragraph 25. Whilst the judge did not state that he accepted that the decision appealed against amounted to an interference with the appellant's private life, it is clear the judge proceeded with the case on the basis that this was the case and so the only issue was proportionality. In assessing proportionality, it is fair to say that the judge does not expressly set out a balance sheet of factors for and against. Even so, it is abundantly clear that he not attach significant weight to the appellant's private life ties, and why, namely because the bulk of these had been formed when his immigration status was precarious.

4. Mr Moksud took issue with what he termed 'the selective approach' taken by the judge to identifying and balancing. the relevant factors, with the judge only addressing those identified in s.117B of the NIAA 2002. However it is difficult to see what relevant factors there were beyond those that were addressed by the judge. By the appellant's own account, a very important factor was his health and the fact that he is HIV positive. Yet the judge dealt in detail with this issue, referring to the relevant case law principles and the key facts in the appellant's case - in particular that his HIV was not advanced and was been managed by NHS treatment and that the appellant would have available to him similar treatment in Pakistan. In terms of the length of time the appellant had spent in the UK and his relationship with his brother and friends, the judge correctly noted that he was obliged by s.117B(5) of NIAA 2002 to attach little weight to his private life because it had been established at a time his immigration status was precarious. The judge also took into account the appellant's financial situation and his competency in English, as he was obliged to do by the provisions of s.117B. The grounds fail to identify other factors that should have been considered significant.

5. Turning to the second ground, it is correct to say that if a witness is proffered for examination but a Home Office Presenting Officer elects not to cross-examine him, that at the very least obliges a judge to refer to this witness's evidence and, if it is not accepted, to explain why. The difficulties here for the appellant's appeal are twofold. First, the judge did take into account the witness's witness statement - or at least his statement at paragraph 19 must be understood to include the witness statement, since the description he gives of the letters he took into account certainly includes Mr Wahid's. Second, the witness statement was extremely brief and generalised. Mr Wahid's statement says the appellant is his friend, that he has known the appellant since he (Wahid) came to the UK, that they have both worked together; that his full support is with the appellant; that the appellant was supporting the rule of law by furnishing evidence against his in-laws; that the appellant's life will be in danger if he returns. He gave no specific example of threats from the in-laws and provided no particulars of date or time etc. Nor does Mr Wahid's witness statement provide any indication that he could provide more particulars orally. Importantly, there has been no additional witness statement served in support of this ground to identify what else the witness would have been able to confirm.

6. In my judgment it is reasonable to infer that judge took the witness statement into account but considered that evidence of this order, even if it had been given orally, could not establish that there would be very significant obstacles to the appellant integrating in Pakistan. That was a position entirely open to the judge since he noted at paragraph 18 that the prosecution case against the appellant's in-laws in the UK was concluded in 2010 and since that date he has had no contact with that side of the family and that it was not even clear from the evidence whether there were still any members of his ex-wife's family in Pakistan.

7. It is also pertinent that the main thrust of the evidence from Mr Wahid and his other witnesses in any event went to his claim to face a real risk on return of persecution or ill-treatment. However the judge had already given a perfectly legitimate reason for not considering the evidence in this context, that the appellant had chosen not to make an asylum or humanitarian protection claim.

8. For the above reasons, I conclude that the judge did not materially err in law and that his decision to dismiss the appellant's appeal must stand.

No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal