Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00277/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 November 2016
On 15 December 2016

Before

UPPER TRIBUNAL JUDGE JORDAN

Between

muhammad gulam arshad
(ANONYMITY DIRECTION Not MaDE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Malik, Counsel instructed by Blackstone Law Associates
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Pakistan who was born on 9 June 1980. He is now aged 36 and he appeals against the decision of First-tier Tribunal Judge Freer in a determination that was promulgated on 28 July 2016 following a hearing at Taylor House a few days before.
2. The appellant arrived in the United Kingdom on 2 February 2012 and was granted leave to remain as a family visitor. That means that he has been in the United Kingdom for some four and a half years. It is significant to mention that immigration history. He was issued a six month multi-visit family visit visa and arrived on the strength of that in February 2012. During the course of the validity of that visa he made a claim for asylum and an appointment was made on 12 June 2012 which the appellant failed to attend.
3. It should be said at this stage that the original application was a fraudulent one in that he said that he was visiting a fictitious character and that was arranged by an agent. It is also right that the applicant says that his failure to attend the asylum interview on 12 June 2012 was the result of a change in his solicitor but that does not justify why he did not attend the original appointment unless there had been some communication to the effect that he was no longer required to attend. In any event he then did not follow it through because he waited as an overstayer over three years in order to instruct other solicitors to request an appointment in order to claim asylum. By that stage he had been in the country since 2012, all of it without leave apart from the first six months but even that first six months' leave was obtained on the basis of a fraudulent application.
4. It did not end there because he was encountered on 5 October 2015, apparently coincidentally, during an arrest team visit to a centre in London. He initially ran out of the premises through the back door and when he was detected by Immigration Officers and checks revealed that he had been issued with a visit visa way back in 2012, he was detained and served with the papers necessary to effect his removal. Two days after that arrest, on 7 October 2015, he claimed asylum.
5. It seems to me that the timing of this application is significant because, on any view, it was a last ditch attempt to claim asylum in circumstances where he had plainly had a number of years prior to that to claim asylum but did not do so.
6. The Secretary of State in a decision letter which is dated 10 November 2015 provided a detailed account of the nature of the claim. It is 22 pages of consideration and it set out the basis of the claim. It was said that he had problems in Pakistan with the relationship that he effected with a girl called Uzma and her father, Mr Ali, did not approve and although he originally had said that Mr Ali was not involved in politics it was apparent that he was at least a supporter of, or a member of, a proscribed organisation which the judge deals with in due course in the determination. It was therefore the applicant's case not only that he had been at risk and was at risk but that there had been a whole history in which he had been found by Mr Ali and threatened.
7. One of the difficulties was that there was a lot of documentary evidence from newspapers and the like which the original decision-maker did not think much of. For example, in paragraph 37, he listed five examples where the documents did not on the face of it make sense and used language which the decision-maker described as bizarre and nonsensical. Just by way of an example it is said that there was a report in the weekly Quami News describing events involving the appellant in these terms,
'When he reached home after destroying their clutches there were operation marks on his belly?'
Looking at the documents in the round, the decision-maker did not think that these were likely to be reports from reputable news agencies. The substance of the claim is that Mr Ali followed Uzma to Lahore where both were attacked and a police report was filed alleging rape. It was said there was a bribe. One of the startling points raised by the decision-maker was that the applicant was released on payment of a bribe, it is said, on 28 January 2012 but the FIR which was said to support the rape allegation is dated 16 January 2009, some three years before, and the decision-maker was not provided with an explanation for that. Needless to say, he was sceptical about it.
8. There was also a claim advanced by the appellant that he had been the subject of abduction and forced medical treatment but the medical evidence which was recorded in paragraph 39, a report that I have not seen, refers to an 'accidental injury right hypochondrium repair (liver) and operated for repair'. That by no means supported or corroborated, (indeed it was contrary to) the appellant's claim of forced surgery and partial removal of his liver. There was also a medical report which confirmed after x-rays and scans that the applicant's liver was taken out for transplant. To remove a liver for transplant would itself be an unusual process if it was not fatal. It contradicted the claim and the other medical evidence reported that there had been repairs as a result of accidental injury to the liver. So, on the face of it, there were difficulties with the medical evidence. The medical evidence also, apparently stated, although I have not seen the report, that the scarring on the appellant's body noted in paragraph 44 of the decision letter consisted of a small round scar which was consistent with a surgical drain and an abdominal scar which appeared to be performed by medically trained individuals and that the doctor was unable to say whether it was due to torture or medically planned operation. It certainly does not appear to have been conducted by somebody who was simply garnering transplant material. So there were a number of credibility issues raised by the Secretary of State.
9. The decision maker then went on to deal with sufficiency of protection and said that the organisations with which the appellant said Mr Ali was involved were proscribed organisations and that the security forces are keen to prosecute those who are involved in such organisations.
10. More importantly still the decision letter went on to deal with internal relocation. It noted that Pakistan has a population of over 187 million people and that there were large clusters of people in places like Rawalpindi, Lahore, Faisalabad and Hyderabad. In each of those cases the population exceeds one million and in the case of Karachi it has a population of some eleven and a half million. So there was undoubtedly an internal relocation option which was difficult for the appellant to meet. The internal relocation argument is perhaps made more difficult by the fact that Uzma had apparently told the appellant that her father runs a clothing business and is in farming so it is not suggested that he was involved in the top echelons of society and therefore might be able to exercise a great deal of influence.
11. All of this material formed the basis upon which the judge had to assess the claim. He did so and concluded that the appellant had not satisfied him that any of the claims had been made out. The decision runs to some eleven pages.
12. The judge recites in the early parts of the determination, paragraphs 15 onwards, the allegation that he was caught making love at the house of Uzma and that her father had shot at him but he had escaped. He was later kidnapped and assaulted and part of his liver may have been removed. He went to his uncle but was shot again. He went to Lahore but was beaten and handed to the police and his father had to pay a bribe of 200,000 rupees. It is not entirely clear how Mr Ali was able to locate the appellant in Lahore.
13. When it came to the credibility findings which begin at paragraph 32 of the determination, the judge properly in my judgment said that the account about Uzma was very vague. The appellant had said that he had been in contact with her during the course of the year but that he did not know where she lived. Since Uzma was central to the claim that was in any event surprising. The appellant also remarked upon the fact that Uzma's evidence as a woman would be given less weight than that of her father and the appellant and so there would obviously be difficulties about Uzma giving evidence. If she gave evidence that supported the appellant that was hardly likely to result in a conviction. If, on the other hand, she gave evidence which did not support the appellant's claim, then it would be difficult to know what the outcome would be. However, the judge went on to conclude that if the girl's father was involved in and was a member of a proscribed organisation, he might find it difficult in securing a conviction.
14. In paragraph 37 of the determination the judge properly records that this was not a Refugee Convention reason because there was no political involvement as far as the appellant or Mr Ali was concerned. It was simply a personal vendetta. He also gave evidence that, in support his claim, he said he had been infected with syphilis. It is very difficult for me to understand quite how that had come into play as part of an asylum claim. It is not suggested that it was Uzma who infected him but in order to support this element of his case, he provided a form of medication which was Mirtazapine. This was an antidepressant drug and certainly was not a drug that supported any allegation that he was suffering from syphilis. There had been no mention of syphilis in the papers prepared before the hearing. It was something which was simply mentioned in the course of the hearing but obviously mentioned in circumstances where it was in some way said to enhance his asylum claim. The judge looked at the evidence of the FIRs and concluded that those documents may well be unreliable and consequently it was not something that he was required to place much weight on.
15. There was reference to the appellant not being a reliable and accurate witness on the basis of his medical condition. There was nothing independently to establish that Uzma's father was connected with a terrorist organisation or, if he was, how that advanced the claim. The applicant had failed to establish the truth of his claim of a partial organ theft. All in all, he came to the conclusion in paragraph 50 that the credibility of this account, taken in the round, was so poor that he failed to meet the threshold for an asylum or protection claim. That was entirely open to the judge on the material that was before him and I find no error of law.
16. The second point that is raised is in relation to Article 8. It is said that the decision letter was an unlawful consideration of Article 8. The basis upon which the Article 8 claim was advanced was that the appellant had entered the United Kingdom in February 2012, some four and a half years ago, (just over four years at the date when the judge had to determine the case); that he had not established any right to remain after the initial visit visa, (a visit visa which as we have noted was obtained by fraud) and that he had no substantive right to remain. All that we know about his claim is that he was arrested, as the decision letter says, in a raid sometime in October 2015. That is all we know about this. So there is nothing within the applicant's account of his private life that supports a claim that it is protected against his removal. He has lived with a sister in the same street where he now lives, (that is paragraph 21 of the determination). There is nothing to suggest that the relationship between brother and sister is anything other than a normal emotional relationship that exists between siblings. But that does not give rise to a right not to be removed. It does not establish that his sister would suffer a violation of her human rights by his removal. The Article 8 claim was looked at by reference to the public interest considerations set out in section 19 of the 2014 Act (making changes to section 117 of the Immigration Act 2002). Reference was made to the Razgar analysis in order to assess whether, notwithstanding anything said in the statute, there was a freestanding Article 8 claim. So absent credible evidence or indeed compelling evidence about a protected private or family life, the Article 8 claim was bound to fail.
DECISION

The Judge made no error on a point of law and the original determination of the appeal shall stand.

No anonymity direction is made.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL