Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00043/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 September 2016
On 20 September 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MA
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Harris, counsel instructed by Goodfellows Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The appellant appeals a decision of First-tier Tribunal Judge Moore, promulgated on 5 July 2016, in which he dismissed his protection claim.

Background
2. The appellant arrived in the United Kingdom on 2 December 2003 with leave to enter as a visitor. He overstayed and was encountered by immigration officers on 1 August 2006 and placed on reporting conditions which he failed to observe.
3. On 19 June 2009 the appellant sought leave to remain outside the Immigration Rules. That claim was promptly refused with no right of appeal. On 7 August 2014, the appellant made an application under the Immigration (European Economic Area) Regulations 2006 which was promptly refused. On 12 August 2015 the appellant applied for asylum.
4. The appellant's asylum claim was based on his account of having converted from Sunni Islam in order to become an Ahmadi Muslim, which took place in the United Kingdom in either 2014 or 2015. The appellant's religious conversion came to the attention of his family and others in Pakistan and consequently placed him at risk of persecution. In addition, the appellant fears that he would be at risk in Pakistan because his father began co-educating boys and girls and Mullahs had issued a false First Information Report (FIR) against him.
5. The Secretary of State did not accept that the appellant was an Ahmadi Muslim owing to inconsistencies between his accounts, his limited knowledge of the faith and an inability to provide basic details regarding his claimed religious activities in the United Kingdom. The respondent was of the view that the appellant was also unable to provide details regarding his father's problems and it was not accepted that he would be linked to such problems should they exist. The respondent considered the claim on the basis that the conversion was genuine but found that by his own account, the appellant would not engage in activities which would put him at risk in Pakistan and nor was it important for him to do so. The appellant's human rights claim, based on his private life with his parents and brothers, was also rejected.
6. For similar reason as those given by the respondent, Judge Moore found that the appellant was not an Ahmadi, would not practise the faith on return to Pakistan and was therefore not at risk of persecution or ill-treatment breaching Article 3 if removed there. His Article 8 claim was also rejected, both under and outside the Immigration Rules.
Error of Law
7. There were five grounds of appeal. Firstly, it was said that the judge wrongly recorded the appellant's evidence as to how his claimed conversion came to the attention of individuals in Pakistan; secondly the judge failed to resolve a material issue of whether a bad faith conversion would suffice to trigger a need for international protection; thirdly that the appellant's explanations regarding a number of matters had not been considered; fourthly, that the judge erred in finding that there was one fatwa rather than three and lastly that the judge failed to consider evidence of the appellant's claim to be a genuine Ahmadi.
8. First-tier Tribunal Judge Osborne considered it to be apparent that the judge considered only one fatwa rather than three. He added, "as this arguable error of law has been identified, all the issues raised in the grounds are arguable."
9. The Secretary of State, in her rule 24 response opposed the appeal. It was said that the judge made adequate findings of fact, was entitled to find against the appellant and concluded that the fatwa was not a reliable document. The response commented that it was "unclear" whether the judge was referred to the two other fatwas.
The hearing
10. Mr Harris concentrated on the third ground, arguing that the judge had not looked at the appellant's second witness statement where he responded to the matters raised in the reasons for refusal letter. He also relied on the grant of permission as to the fatwa issue and added that there was no challenge to the judge's section 8 findings based on the appellant's immigration history.
11. Mr Walker stated that the respondent had been hampered by being unrepresented before the judge as well as the fact that she did not receive the appellant's bundle of evidence. He agreed with Mr Harris that the judge did not address the specific fatwa which concerned the appellant.
Decision on error of law
12. In the appellant's witness statement dated 9 June 2016, there is clarification as to when and how the appellant learned of the Ahmadi faith; explanations as to why he provided the answers he did regarding the Ahmadi faith during his interview; an assertion that a confusion ensued during the interview regarding how the appellant's claimed conversion reached the ears of those in Pakistan; an acceptance of a mistaken date and a description of the spiritual benefits of this conversion. All of these issues were raised in order to address specific paragraphs of the reasons for refusal letter.
13. At [31] the judge finds that the appellant's responses during his interview were vague and limited and at [32] that his account of how people in Pakistan became aware of his conversion was "inconsistent." While the judge refers to the appellant's first witness statement, there is no reference in the judge's findings to this detailed additional statement which was drafted primarily to address the very many issues taken against him in the reasons for refusal letter. The appellant is entitled to judicial consideration of his responses to the credibility issues relied upon by the respondent. In failing to have regard to all the appellant's evidence regarding a range of highly pertinent issues, the judge erred materially.
14. The judge, at [33], states that he has considered "the fatwa document" and finds "it" to be unreliable because the judge found it was written by a solicitor friend of the appellant's father. Yet, there are three such documents enclosed in the appellant's bundle and it is not entirely clear from the judge's findings which of them, if any, he is referring to.
15. For the foregoing reasons, the judge's findings cannot be sustained.

Conclusion
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision to be re-made.

Directions
This appeal is remitted to be heard, de novo, by any First-tier Tribunal Judge except Judge Moore
The appeal is to be listed for a hearing at Taylor House
Time estimate is 3 hours
Those representing the appellant are to serve a further copy of the appellant's bundle of evidence on the respondent within 10 days
An Urdu interpreter is required

An anonymity direction was made by the First-tier Tribunal. In view of the fact that this is a protection claim, I consider it appropriate to continue the said direction in the following terms:
"Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellants. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. "

Signed Date: 16 September 2016

Upper Tribunal Judge Kamara