Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00278/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 September 2016
On 3 October 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

S M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Khan, Thompson & Co Solicitors
For the Respondent: Mr S Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Pakistan. She is an Ahmadi. She came to the UK on a five year family visit visa in 2010. In August 2015, just before expiry of this visa, she claimed asylum, based on her claims that the last time she returned to Pakistan in May 2015 she received threats from Khatme Nabuwat who had set fire to a business she had in her home area. The respondent accepted that the appellant was an Ahmadi, but not that she had experienced significant problems in Pakistan or that she would face such problems on return. The appellant appealed. In a decision sent on 19 May 2006 First-tier Tribunal Judge Hussain dismissed her appeal.

2. At paragraphs 26-31 the judge said:

"26. It appears to me that on a plain reading of the appellant's interview it is fairly clear that she has in Pakistan lived a fairly uneventful life although committed Ahmadi. I am satisfied from the evidence that the appellant's commitment and affinity to the Ahmadi faith is very strong as evidenced by the exchange of correspondence between her and the groups Khalif. However I have no doubt in my mind that this appellant has not encountered any difficulty of any significance or at least none that may amount to persecution whilst living in Pakistan.

27. I find it difficult to imagine that if she had encountered any problems that she would have single handily ran a dry cleaning business established by her husband even before she came to the United Kingdom in May 2015. My belief that the appellant has not encountered any difficulty is further supported by the frequent journeys she has made between the United Kingdom without previously applying for asylum. Even the present application was made some three months after her entry to this country.

28. I find that there is unlikely to be any truth in the appellant's claim that there was a fire started in her business. I say this because such a momentous event must have called for the incident to be reported to the police. The appellant's explanation that the police were against the Ahmadis is not a sufficient answer since there was no evidence that either the police or the group that oppose people of her faith were involved. In any event I would think for formality sake she would have made the effort of registering the incident. However that said it goes to the appellant's credit her admission that she does not know who started the fire and whether it was deliberate. Her suspicion is that it was started by others maliciously because she was surrounded by people who were inimical to her faith.

29. In my view even there was a fire at her place there is very little objective evidence on which to build a case that it was done in order to harm her because she is an Ahmadi.

30. The appellant was frank in admitting in her interview that after 1984 she has practiced her faith in private. Although some effort was made to embellish that story in the written statement during cross-examination the appellant appears very uncomfortable having to deal with questions concerning public manifestation of her faith.

31. Whilst it is not for the Tribunal to speculate on why the appellant made the application for asylum, it is difficult to overlook her advancing age and the fact that she has no remaining children in Pakistan. After her arrival this country in May 2015, her children would have had to confront the question of her long term care. It is my inference that thinking lead to the decision to make the application for asylum. However, for reasons given earlier, I fined that the appellant has neither the subjective nor the objective basis on which to found an asylum claim."

3. The grounds of appeal advance four grounds, submitting that the judge erred in law in (i) making conflicting findings of fact and applying a higher standard of proof; (ii) failing to resolve material issues in the appeal; (iii) failing to make findings on sur place activities; and (iv) failing to make any findings on Article 8. These grounds were amplified by Mr Khan and opposed by Mr Tufan, both of whose submissions were succinct and to the point.

My decision

4. I am not persuaded by the first ground, for much the same reason as given by the judge who granted permission to appeal. There was no conflict in the judge stating at [23] that there was nothing in the background evidence inconsistent with the appellant's claim and then going on in later paragraphs to reject key aspects of the appellant's claim. The statement at [23] was plainly just the first step in the judge's assessment of an application, as to its congruence with background country information. It was not a finishing point in the assessment. The judge gave sound reasons for disbelieving the appellant's account about her past experiences Pakistan and for concluding that she had lived a "fairly uneventful life although [a] committed Ahmadi". It is clear from the judge's reference in the same paragraph to correspondence between the appellant and the group's Khalifa, that the judge was aware of her account of being a poet and a writer and was quite entitled to conclude that even so this did not establish she had suffered past persecution. One powerful reason in the appellant's case for so concluding was that the appellant had chosen to return to Pakistan more than once within the currency of her five year visa and by such action had shown clearly that she did not consider that by doing so she exposed herself to a real risk of being persecuted.

5. As regards the second ground, I am not able to accept that the judge gave insufficient consideration to all relevant aspects of the Tribunal country guidance as set out in MN and Others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 00389 or to the legal guidance as set out before Moore Bick LJ in FA (Pakistan) [2016] EWCA Civ 763 at [13]:

"In my view the decision in MN is so potential significance to any case in which a Pakistani Ahmadi makes a claim for asylum, because it provides the basic findings about the risks to which such persons are exposed in their country of origin. It is clear from that decision that the key question is the extent to which the individual concerned feels impelled to manifest his faith to third parties, by actively seeking converts, preaching or merely talking openly to others with whom he comes into contact. Those who profess their faith openly or actively seek to interest others in it are at significant risk, the extent of which may vary depending on the precise nature and scale of their activities, whereas those who practise their faith privately are not. Although individual cases must be considered on their own facts, MN provides a template against which they may be assessed. The risk of persecution on return cannot be divorced from that of internal relocation and the possibility of internal relocation cannot be divorced from the way in which the claimant chooses to practise his faith. Although KN operates throughout Pakistan, there was no finding in this case that it has the will or the means to track individual Ahmadis, such as the appellant who move to a different part of the country, so that internal relocation is not an effective option for someone who had come to their attention. Given the Tribunal's findings about the appellant's wee of life before he returned from his first visit to this country in 2014, it was not possible in my view for the First-tier Tribunal to assess the effectiveness of internal relocation without having regard to the findings in MN. In my opinion, therefore, the Upper Tribunal was right to find that a failure to address its findings constituted an error of law which, in view of its potential significance, could not be described as immaterial and justified setting aside the Tribunal's decision. This makes it unnecessary to decide whether the Tribunal's finding that the appellant's could not escape persecution by internal relocation was inadequately reasoned or unsupported by the evidence.

6. The judge made explicit reference to the MN guidance at [2] and [24] and it is clear from his assessment that he had clearly in mind that she was entitled to success in her claim if able to show that she was a committed Ahmadi for whom it would be of fundamental importance to practice her faith publicly outside the setting of attendance at an Ahmadi mosque.

7. I would accept that it would have been better had the judge dealt in clear and more specific terms with the issue of whether, even if the appellant had not experienced past persecution, she might nevertheless face a current risk on return.

8. However, reading the decision as a whole it is entirely clear that the judge's assessment was that nothing significant had occurred to alter the fact that she was a committed Ahmadi for whom it had not been of fundamental importance to profess her faith in a way that would place her at risk on return. The fact of her history of return visits, coupled with her advancing age, provided further evidential foundation for the judge's conclusion. Insofar as the appellant had a claim based on sur place religious activities, it was extremely weak.

9. I do not accept the judge's assessment was somehow based on an assessment only of physical harm. The judge clearly had regard to the claimed loss of her freedom to express her religion. In considering the appellant's case the judge was entitled to consider that her oral evidence (as summarised in [3]-[12]) and the oral evidence of her daughter and son (as summarised in [137] to [157]) did not strengthen her claim. In particular, it was open to the judge to find that she had not given a satisfactory account of her claim to need to publicly manifest her religion though activities such as proselytising.

10. What I have said in dismissing the second ground of appeal also suffices to explain my reasons for rejecting the appellant's third ground of appeal, as regards sur place activities.

11. As regards the fourth ground, I would accept that the judge may have erred in deciding not to make a decision on the appellant's Article 8 grounds of appeal. The respondent had considered Article 8 in her refusal decision and the appellant had raised Article 8 in her grounds. However I do to consider this was a material error because:

(i) The thrust of the Article 8 grounds before the judge was confined to the issue of risk on return;

(ii) The submissions made to the judge on Article 8 were generalised and cursory;

(iii) No response was made in the grounds or submissions to the respondent's reasons as set out in the refusal decision for concluding that she did not meet the requirements of the Rules and did not warrant a grant of leave outside the Rules (see paras 34-44);

(iv) The written statements of the appellant and her family did not demonstrate that the ties with her adult children or her grandchildren were such as to make the decision to refuse her leave to remain disproportionate;

(v) Related to (iv), the grounds wholly fail to address the fact that in assessing the public interest question under Article 8 the judge would have been required to attach little weight to her private life ties under s.117B(5) of the NIA 2002 ;and, insofar as she could be said to have family life ties with her UK family members, these too stood to be considered in the context that they were developed during a temporary sojourn on the basis of a family visit visa (with nine trips back to Pakistan) over some five years previously. I should perhaps add that Mr Khan, no doubt in the spirit of realism, did not seek to suggest that the Article 8 claim was a strong one.

12. For the above reasons, I conclude:

The FtT judge did not materially err in law;

His decision to dismiss the appeal is upheld.

Direction Regarding Anonymity - Rule 14 of 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 or any member of their family. 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 Date 3 October 2016

Dr H H Storey
Judge of the Upper Tribunal