Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00046/2021
(UI-2021-000747)

THE IMMIGRATION ACTS

Heard at Bradford IAC
Decision & Reasons Promulgated
On the 4 May 2022
On the 11 July 2022

Before

UPPER TRIBUNAL JUDGE REEDS

Between

M
(AnonYmity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Brakaj, solicitor advocate instructed on behalf of the appellant
For the Respondent: Ms Z. Young, Senior Home Office Presenting Officer

Anonymity :
Rule 14: The Tribunal Procedure(Upper Tribunal) Rules 2008:
Anonymity is granted because the facts of the appeal involve a protection claim. and Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal (hereinafter referred to as the “FtTJ”) who dismissed the appellant’s protection and human rights appeal in a decision promulgated on the 2 September 2021.
2. Permission to appeal that decision was sought and on 27 October 2021 permission was granted by FtTJ Boyes.
The background:
3. The appellant is a citizen of Pakistan. The basis of his claim is set out in the decision letter and summarised in the decision of the FtTJ.
4. The appellant’s account was based on his and his family’s profile in Pakistan and that they had a high profile in that country. The basis of his claim is that he is a political activist and provided support politically and was regularly active having been involved in the 2018 election campaign.
5. The appellant referred to an incident on 5 September 2019 where two men (whom he identified) came to his house and that there was a political argument which turned into a physical fight. He stated that they had pre-planned the fight and from what was stated he thought the attack was politically motivated. The servants intervened and asked them to leave. He tried to report it to the police, but nothing happened.” They had no further direct contact but sent threats to other people saying they would finish his political career and would not leave him alone.
6. Following that incident he claimed that some unknown people came to his house on 11 and 13 September and spoke to his servants and the appellant’s claim was that they had come to harm him and that they had stayed in the street afterwards for over 30 minutes.
7. Following this, the appellant and his family moved to his in-laws as he was afraid that his family may be at risk of harm. He decided to leave Pakistan. He obtained his visit visa and left Pakistan.
8. The appellant claimed that he had he received a WhatsApp message from a police officer asking when he is coming back and that he feared that he was being targeted.
9. The appellant arrived in the United Kingdom on 12 October 2019 with his family and applied for asylum on 14 October 2019. As part of his claim, he provided further evidence which included two FIR’s, a summons, photographs and newspaper reports. Since leaving Pakistan the police raided his house.
10. His asylum claim was refused in a decision letter dated 23 November 2020. The respondent accepted that the appellant came from a high-profile political background but did not accept that the appellant had been targeted in the way that he had claimed and that he would not be at risk on return to Pakistan. It was considered that he would be able to access efficiency of protection or in the alternative in the event of any risk of harm in the local area, he could relocate to a different part of Pakistan.
11. The application was therefore refused.
The decision of the FtTJ:
12. The appeal came before the FtTJ on 10 August 2021. In a decision promulgated on 2 September the FtTJ dismissed the appeal on asylum grounds and on human rights grounds.
13. The FtTJ set out his factual findings and assessment of the evidence at paragraphs[31]-[43] of his decision. As to the events that occurred on 5 September 2019, the FtTJ accepted that it was reasonably likely that the (2 named) men had come to his house and there had been an argument as this had been consistently stated by the appellant and was supported by the FIR (dated 2019). However he was not satisfied that the two men concerned were acting on behalf of anyone other than themselves (see paragraphs 31 and 32). The FtTJ did not accept that there were any ongoing threats or a subsequent visit to the house and gave reasons why the witness who had given evidence in support had given” speculative evidence” and relied upon what he had been told.
14. As regards risk on return, the FtTJ concluded that as those he feared were not linked to any political party he would not be at risk. As regards the FIR , the judge concluded that he had not been named in the document and the summons equally had little weight based on the reasons that he had given earlier. The judge rejected his account that there was any politically motivated campaign against him (see paragraph 40). As regards the raid on the house, the judge stated that the newspaper articles referring to the raid “added little” as there may be many reasons for the raid having taken place.
15. In the alternative the FtTJ concluded that the appellant could internally relocate to a different area in Pakistan. The FtTJ therefore dismissed the appeal.
The appeal before the Upper Tribunal:
16. Following the grant of permission, the hearing took place on 4 May 2022.
17. At the outset of the hearing Ms Young on behalf of the respondent set out that she agreed with the matters set out in relation to ground two that related to the sur place points raised. The second ground relates to what is described as a further error of fact as to the appellant’s activity in the UK and the sur place activity. It is submitted that the Judge accepted that there were pictures and video clips of the appellant's meetings in the UK but considered that they added little to the appellant's account as the pictures “ did not assist with regards to the conversation.”
18. The grounds submit that this is an error of fact as evidence was provided that the meetings were held to discuss the political situation in Pakistan ( see translation of the news report (AB page 42) and also the video stills (p43-36).
19. In the same context it is further submitted that the finding made is not only an error of fact but is also an inadequate analysis as it did not deal with the evidence in relation to refugee sur place and in particular does not consider whether such high profile meetings reported in Pakistan may themselves lead to a valid claim under refugee sur place (see background information referred to in point 5.1 of the appellant's skeleton argument).
20. Ms Young accepted that the judge had not dealt with the factual claim and the evidence that had been provided as to his political activity in the UK and whether this would be a risk factor on return. She accepted the grounds of challenge in this respect noting that this was an issue that had been raised in the skeleton argument but had not been dealt with by the FtTJ. Furthermore Ms Young stated that the other parts of the grounds that related to internal relocation in the context of the sur place claim also demonstrated the making of an error on a point of law.
21. Thus the two advocates were in agreement that ground two concerning activity in the UK and the paragraphs that dealt with internal relocation demonstrated the making of an error on a point of law that was material to the outcome.
22. However Ms Young indicated that she did not accept that the FtTJ was in error in relation to the other grounds of challenge raised and wish to make submissions on those other points.
23. Ms Brakaj on behalf of the appellant relied upon the written grounds. The written grounds advance three grounds of challenge. As set out above it was agreed on behalf the respondent the ground two was made out. Ms Brakaj therefore concentrated her submissions on the other two grounds.
24. The first ground submits that there were errors when dealing with the issue of the claimed attack by the two men, It is submitted that the Judge has erred when finding as a fact that there was no independent cogent evidence that the men were related to ( high profile person X).
25. At paragraph 31, the FtTJ found that it is reasonable likely that (as claimed) the appellant was assaulted by the men and accepted that there was an FIR report filed in relation to this attack. At paragraph 32 the FtTJ found that it had not established that it is reasonably likely that (the men) were acting on behalf of anyone other than themselves as: "there is no independent cogent evidence either of them was a member or candidate of any party or related to X”.
26. Ms Brakaj submitted that the appellant provided photographic evidence (appellants bundle-AB-pages 13-16), and that this evidence was not challenged by the respondent and there was nothing noted in the FtTJ’s decision.
27. Further it is submitted that the Judge had not dealt with this evidence when reaching his conclusions and had not given reasons as to why this evidence could not amount to cogent evidence of the relationship between the individuals concerned. Ms Brakaj submitted that whilst the FtTJ at paragraph 36 did consider the documentary evidence, he did not consider these photographs or the relevance of the photographs to the appellant’s assertion that there would be links to them. Ms Brakaj submitted that this finding would be vital as the appellant had put forward this evidence alongside his own evidence to show the political link of those who attacked him.
28. Ms Brakaj further submitted that at paragraph 24 of the decision the FtTJ referred to the photographs where photographs of the appellant with various political leaders was considered therefore looking at paragraph 32 of the decision it appeared to be a stand-alone paragraph but there should have been an assessment of the appellant’s evidence and the photographic evidence of the people concerned and their relationship to political figures. Therefore the finding on the risk from the two men and whether they were acting alone or out of political motivation was flawed.
29. Ms Brakaj submitted that this linked to the evidence relating to the FIR and the summons (as set out later in the grounds). The FIR is at p.22( 14/4/21) and p24-25 13/4/21). It is further submitted that due to finding regarding the relationship, the Judge failed to consider the claim that the Police failed to deal with the matter for "political" reasons despite the acceptance by the Judge that an FIR existed. It is submitted that this failure is particularly relevant, as the Judge seems to accept that there was background evidence "helpfully" referred to that supported the claim that the Police functionality was patchy and subject to political interference and corruption (para 25) and that politically motivated police harassment occurred (para 36). Ms Brakaj submitted that when assessing the documentary evidence the FtTJ failed to consider the background evidence that he had referred to at paragraphs 25 and 36.
30. The third issue raised in the grounds relates to the FIR and the summons. Ms Brakaj submitted that there was very little reference to the FIR in the decision other than the incident was not in dispute (13 April 2021). However there is brevity in the findings despite there being documentation and that the appellant had spoken to this evidence but looking at the evidence produced in the nature of it in the brief decision, it is difficult to see the relevance of the two men concerned and their political links and the decision. She submitted that there were no findings of fact on this evidence.
31. When considering the appellant’s witness statement he sets out his concerns of returning and that the two men were linked to higher political figures and therefore acting on behalf of others and motivation to cause him harm. He also stated that no action was taken on the FIR and that his political career would be ended as false accusations had been brought against him.
32. Ms Brakaj submitted that when looking at the decision, no real consideration of this had been given in the relevance of the documents to that issue. She submitted it was not possible to dismiss each document a stand-alone document but to look at the overall picture and look at the level of political activity in the evidence about who had been interested in him and the documentation that had been able to provide. In summary there had been no analysis of the appellant's claim that the FIR was raised for political reasons and does not take account of the fact that the summons clearly refers to the FIR.
33. At paragraph 37 the judge made a finding that little weight attached to the FIR regarding the incident on 14 April 2021 as he was not named in it and could easily prove that he was in the UK. At paragraph 38 he placed little weight on the summons stating, “it is not reasonably likely the authorities have any adverse interest in him for the reasons I have given and there is no cogent evidence as to what the authorities want to speak to him about.” However when looking at the appellant’s factual claim and his evidence he had stated that false charges had been issued to stop his political activities and that was why the summons and the FIR had been generated. She submitted there should be a consideration of this as there was no doubt about the evidence he had given.
34. The remaining ground relates to the raid on the appellant’s house in Pakistan. It is submitted that the Judge accepted that the appellant provided newspaper reports of raids on his home in Pakistan (AB pages29-37) but finds that these add little as there may have been many reasons for the raid not linked to political activity (Para 41). Ms Brakaj submitted that the reports were credible reports and were the views of the media. At paragraph 41, the FtTJ did not state what the “many reasons” could be. No one had given any reasons in the media reports and there was no indication of a burglary. As the appellant was not there a could not be suggested that somebody had gone to speak to him and therefore all the evidence pointed to a targeted attack. The report highlights that there is such a link given the sur place activities and what he had undertaken in the UK.
35. It is submitted that the appellant's claim (also included in the newspaper reports) is that the raids were due his political activities. It is submitted that the Judge failed to make a proper finding on this point and that it is not reasonable to dismiss this aspect of the claim simply because there may be other reasons for the raids. No reference had been made to the articles and their contents.
36. Ms Brakaj therefore invited the tribunal to find that the other grounds were made out and that the decision should be set aside.
37. Ms Young and behalf of the respondent submitted that in respect of the appellant’s relationship with the people involved, the judge did not specifically refer to pages 13 – 16 of the bundle but at paragraph [7] of his decision made reference to the appellant’s bundle and made the point that paragraph the fact that he had not included “ every word stated or repeated does not mean that I have excluded it from my consideration. I have considered the reviews, skeleton argument and oral submissions.” Ms Young submitted that while he had not referred to a particular document that did not mean that he not considered it.
38. Even if the FtTJ had not considered it to the extent to set out in the grounds, it is not material in any event due to the evidence set out at pages 13 – 16. She submitted that the FtTJ stated at paragraph [32] that there was no cogent evidence of them being members of a political party or related to X. The FtTJ had sight of the bundle which contain the documents. Whilst the grounds refer to it as “cogent evidence” it is not, as the photographs do not go to the extent that the grounds assert and therefore there is no material error. The judge considered the evidence around made a finding at paragraph [32] that it was not established that these two men were acting on behalf of anyone other than themselves and that was no independent cogent evidence either of them being a member or candidate of any party or related as claimed.
39. Dealing with the grounds that referred to the FIR and the summons, Ms Young submitted that the FtTJ had dealt with the documents even if briefly. The ground say that the judge had made a finding that he was not named in the FIR but was named at page 20. This is an order to appear, and he is clearly named on this, but he is not named on the FIR (p22 14/4/21) and therefore the judge was correct to say that the appellant was not named in the FIR. The judge also dealt with the FIR at [37] and the summons at paragraph [38].
40. Ms Young submitted that the issue in the grounds is the FIR of 14 April 2021 and not the one set out at paragraph 24. She stated that there was another FIR dated 5 September 2019 which is not referred to by the parties and therefore the judge could not be criticised for that.
41. In summary the judge had dealt with all the documents and that even if the paragraphs and find it had been brief when read together she submitted there was sufficient reasoning.
42. Dealing with the raid on the appellant’s home, this was dealt with at paragraph 41 of the decision and whilst the decision is brief the judge did consider the documents by stating that they added little to his claim. There was nothing to indicate that the judge did not have regard to them before reaching his decision. The matter of weight was for the judge to determine. Ms Young therefore submitted that there were no material errors of law as the remaining grounds had set out.
43. Ms Brakaj made further submissions in reply. She referred the tribunal to the respondent’s bundle at page 111 FIR phrased as a police report letter and the translation with it. She submitted it was not an issue that the attack took place and the relevance of the failure to refer to this it cannot be presumed that they have been considered. From paragraph 37 the judge seemed to believe that they would not be relevant that the documents relevant to the account given.
44. Ms Brakaj submitted that in certain cases it can be presumed that a judge has taken into account all the documentation however given the brevity of the findings made that presumption could not be made in this decision and the relevance of the documents had not been carefully considered.
45. Looking at the FIR and the summons from 2021 the documents should not have been looked at separately as a false allegation has been brought against the appellant. The documents should be considered as a whole and the lack of consideration of the newspaper articles also demonstrated that the relevance to his claim had not been appreciated. The judge was required to give reasons as to why those documents were rejected in the brevity of the findings lead to the conclusion that it cannot be presumed that those documents had been taken into account. The claim based on his activity the UK was missing entirely and that had been accepted on behalf of the respondent.
46. At the conclusion of the hearing I reserved my decision which I now give.
Decision on error of law:
47. Both parties agree that the judge did not assess the sur place claim in light of the appellant’s factual claim and the documentary evidence ( including photographs and newspaper articles) relevant to his political meetings in the UK and thus gave insufficient reasons for rejecting his claim on this basis. Both parties agree that the skeleton argument produced raised this issue. In the light of the concession made on behalf of the respondent, and on the submissions as provided, I am satisfied that the errors are material as they relate to the overall issue of risk on return on the issue of sur place activities conducted in the UK.
48. However this was the only concession made and that the other grounds were still in dispute. I have therefore considered the grounds which remain in dispute. Having considered the submissions I am satisfied that they are in the main made out. The basis of the appellant’s claim related to his background and profile. It was accepted on behalf of the respondent that the appellant came from a high profile political family for the reasons that the respondent set out at paragraph 49, 52 and 53 of the decision letter relating to the consistency of the appellant’s account concerning the political party and support for the party, photographs of the appellant with prominent politicians in Pakistan and the UK prior to his claim for asylum and afterwards and an acceptance as to his uncle’s political status (see paragraph 53 of the decision letter). As to other family relatives, the respondent appeared to accept her high political status(see paragraph 53 of the decision letter).
49. Whilst the FtTJ accepted the account that on 5 September 2019 the two identified men came to his home where an altercation ensued leading to an FIR being issued by the appellant (see FIR in respondent’s bundle dated 2019; not the one in the appellant’s bundle), he did not accept that there was any “cogent evidence” that either man was a member or candidate of any party or related to X ( high profile person).
50. In reaching that finding the grounds establishes that there was evidence available in support of his claim that they were related to X high profile person which the FtTJ omitted from his assessment. These are the photographs exhibited at pages 13 – 16. These are photographs the appellant claims show the two men whom he identified as the two men responsible and whom he states were former family members at a high profile event. There is no assessment of those photographs in reaching that finding. There is no reference to the photographs either recorded at paragraph 24 where the judge referred to the evidence in support and they are also missing from the respondent’s submissions. Whilst Ms Young referred to paragraph 7, that does not assist as it was a general statement referring to reviews and oral submissions and did not refer to these particular documents.
51. Whilst the judge does not have to reference every specific piece of evidence, in circumstances where past photographic evidence had been accepted, in this case the appellant being shown with high-ranking politicians both in the UK and in Pakistan prior to the claim for asylum and after, reasoning was required.
52. Whether they were related to the person identified was relevant to the factual claims as a whole and the protection issue generally. As Ms Brakaj submitted the consideration as to the relationship may have impact on the finding at paragraph [36] that the appellant would not need the assistance of the authorities because all he feared were to “ordinary” individuals, that is those with no profile.
53. This links to the challenge made to the assessment of the FIR. The judge accepted that the FIR and summons had been filed (in fact there were 2 FIR’s) but gave them little weight. His reasoning was that the appellant was not named on the FIR (finding at paragraph [37]) and that he could prove he was in the UK. As of the summons at paragraph [38] little weight was placed on that as it was “not reasonably likely that the authorities have any adverse interest in him for the reasons given” and that there was no “cogent evidence is what the authorities want to speak to him about”.
54. As Ms Young submitted the judge was correct to say that the appellant was not named in the FIR, but the summons and the FIR are arguably sequential documents. The summons exhibited to page 21 does name the appellant and orders him to attend the police station and if not “would initiate proceedings”. The summons refers to the FIR as it contains the same number. There is a 2nd FIR at pages 24 – 25 which no one appears to have noticed.
55. Whilst the FtTJ gave little weight to the FIR for the additional reason that he could easily prove he was in the UK, it had been expressly stated in the skeleton argument that notwithstanding his presence in the UK the summons and the FIR were filed out of “political reasons.”
56. The last issue relates to the newspaper articles and the reference to the raid on the appellant’s home in January 2021. The FtTJ appears to accept that a raid took place on his home (see paragraph [41) it states it “could be many reasons not linked to political activity”. However if the newspaper reports were to be discounted as evidence not indicative of risk, as Ms Brakaj submits some reasoning was required as on the appellant’s case it linked to his previous problems and also his profile. There was no assessment of the contents of the newspaper reports which also referred to activity in the UK with other political leaders.
57. As set out above, Ms Young on behalf of the respondent informed the Tribunal that it was accepted that the appellant’s grounds of challenge were made out in relation to Ground 2 and the sur place point and that this also covered the challenge made to the issue 3 on internal relocation and therefore on behalf of the respondent it was accepted that there was a material error of law in relation to this ground and that the decision of the FtTJ involved the making of a material error on a point of law and that the decision as a consequence should be set aside on this ground only. For the reasons set out above the other grounds have been made out and therefore the decision is set aside.
58. Both parties have given their submissions as to the remaking of the appeal. Both are in agreement that if it requires further fact-finding that the appropriate forum is the FtT. Whilst The FtTJ did make some findings that were adverse to the appellant, which included his analysis of the supporting witness and his ability to leave Pakistan, as Ms Brakaj submits, the factual assessment required consideration of all the relevant documents and for them to be viewed holistically when reaching conclusions on risk. I therefore do not preserve any factual findings.
59. Therefore having taken into account the views of the advocates as to the forum for remaking the decision and in light of the practice statement, I am further satisfied that the appeal falls within paragraph 7.2 (b) of the practice statement, and I therefore remit the appeal to the First-tier Tribunal for that hearing to take place as both advocates have submitted. I do not preserve any findings of fact made and it will be for the tribunal to undertake a holistic assessment of credibility in the light of the evidence as a whole including the country materials which should be updated for the hearing.
Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision is set aside.
The appeal is remitted to the First-tier Tribunal for a hearing.

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Upper Tribunal Judge Reeds
Dated : 17 May 2022