Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00400/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th July 2016
On 8th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between

mrs n.
(ANONYMITY DIRECTION Made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Sellwood, Counsel instructed by Wimbledon Solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the Appellant's appeal against the decision of First-tier Tribunal Wylie promulgated on 17th May 2016 in which he dismissed the Appellant's appeal with regard to his claims for asylum, humanitarian protection and on human rights grounds.
2. The Appellant is a citizen of Pakistan who was born on [ ] 1965. It is her case that she is of the Ahmadi faith, that her family have followed the Ahmadi faith for generations and that her husband and two sons have also been active within the Ahmadi faith. It is the Appellant's case that she has suffered persecution as a result of being Ahmadi within Pakistan and that she fears further persecution upon return to Pakistan.
3. The appeal came before First-tier Tribunal Judge Wylie sitting at Hatton Cross on 5th April 2016. She accepted that she was an Ahmadi Muslim as were her husband and son and made specific findings of fact between paragraphs 17 and 30 of his decision which included findings in paragraph 20 that the Appellant had encountered difficulties within Pakistan including being insulted by people in the street, shouting derogatory names and not being served in local shops. At paragraph 22 she went on to find that she had been harassed by neighbours and people from the KN, that her hair and clothing had been pulled and that her husband had been assaulted, that the police had been contacted, but that the police had refused to do anything because they were Ahmadis. At paragraph 23 the judge found that the next day, whilst the Appellant was at home, unknown people came to the door and threw hot water at her and they said they would throw acid if she went to the police. In paragraph 24 the judge found that the Appellant and her husband put their house up for sale and tried to move from the neighbourhood. She found that they found it difficult to sell because neighbours would tell buyers that the family were Ahmadi and the house had to be sold at a low price sometime in 2014.
4. The judge went on to find at paragraph 46 that the problems suffered by the Appellant in Pakistan only amounted to harassment rather than persecution. She actually went on to find specifically that he did not consider that the Appellant would suffer persecution rather than harassment and went on at paragraph 54 to find that following the incidents in 2012 the Appellant and her family remained living in the area, the husband continued to work and the daughter continued to study. The Appellant's son said that the daughter stopped studying because of money problems and that is why she moved from Sheikpura. The judge found there was no suggestion that she moved because of harassment directed at them as Ahmadis and her husband continued to be able to live and work in Sheikpura. The judge therefore found that the Appellant only suffered from harassment rather than persecution. He therefore found that she was not entitled to asylum. The judge further went on to find that although she was an Ahmadi that she would only be quietly practising her faith at home and that therefore, having regard to the country guidance case of MN, that she was not at risk as a result of her religion upon return.
5. The Appellant had sought to appeal against that decision on three grounds. In the first ground is it is argued that the First-tier Tribunal Judge materially misdirected himself in law in respect of her findings in respect of persecution as to whether or not the findings in respect of the problems the Appellant encountered amounted to persecution rather than harassment.
6. It is next argued in Ground 2 that although the judge made reference to the country guidance case of MN & Others (Admadis - country conditions - risk) Pakistan CG [2012] UKUT 00389, that the judge did not go on to consider if she did practice her religion in private or with other Ahmadis in a restricted way, why she practised her religion privately. It is argued that in her statement the Appellant did say she did not preach outside "due to the laws" and because "preaching the Ahmadi faith is a criminal offence in Pakistan".
7. The third Ground of Appeal follows on from the second Ground of Appeal and again argues that the First-tier Tribunal Judge did not actually fully take into account material facts as to ways in which the Appellant manifested her Ahmadi faith, in terms of propagating her faith and also the fact that faith requires her to propagate her faith publicly; how she addressed other Muslims in the customary way as Salaam Ali Kum; how she would describe her religious faith to someone as being an Ahmadi Muslim; and she refers to the call for prayer as being "Azan" and that she participated in public meetings in the UK. She argued that the judge did not fully take these factors into account.
8. Permission to appeal has been granted by Designated First-tier Tribunal Judge Macdonald on 10th June 2016. He accepted that it was arguable that there was a material misdirection in respect of the country guidance and failure to take account of material facts, and that it was arguable that the Appellant's treatment crossed over into persecution and that it was arguable that the principles in HJ (Iran) applied and were not fully considered by the judge. Permission to appeal was granted on all grounds.
9. I am grateful to the submissions of Mr Sellwood of Counsel for the Appellant and of Mr Tarlow, Senior Home Office Presenting Officer for the Respondent. Mr Tarlow initially relied upon the Rule 24 reply put in by the Respondent in which it was argued, inter-alia, that the judge has directed herself appropriately and the judge was entitled to find that the Appellant did not openly practise her religion in the UK and will not do so upon return and that the judge was entitled to find on the specific facts of this case the Appellant would not be at risk upon return.
10. However, upon reflection, he then did quite properly concede that the Rule 24 notice did not fully deal with the matters raised within the Grounds of Appeal and the grant of permission to appeal, and quite properly conceded that he would have difficulty on the findings made by the Learned First-tier Tribunal Judge in arguing that the problems encountered by the Appellant amounted simply to harassment, rather than persecution, and conceded that the reasoning of the First-tier Tribunal Judge had not been properly or adequately explained in that regard and that this did amount to a material error of law and the case would need to be remitted back in his submission to the First-tier Tribunal for re-hearing.
11. Again, in respect of the second and third Grounds of Appeal, Mr Tarlow quite properly conceded that in that regard that although the judge had made reference to the country guidance case of MN & Others (Admadis - country conditions - risk) Pakistan CG [2012] UKUT 00039 and quoted from the head note in respect thereof and that she makes specific findings at paragraphs 43 and 44 that the Appellant practised her religion in private or with other Ahmadis in the restricted way described in paragraph 2(ii) of MN and had limited involvement in worship in the Ahmadi community in the UK and prayed and practised her faith at home. He conceded again quite properly on behalf of the Secretary of State that the judge had not gone on to consider the question as to why the Appellant practised her faith in this way and as to the reasons why she practised her religion privately. There is no consideration seemingly within the First-tier Tribunal Judge's decision of the contents of a statement in this regard that she did not preach outside, due to the laws, and because of the fact that preaching the Ahmadi faith was considered to be a criminal offence.
12. In that regard, the judge has not properly considered the reasons why the Appellant was restricted in her practising of religion and as to whether or not it was because it was considered to be against the law, by analogy with the HJ (Iran). I do further accept that the evidence of the appellant's son in respect of the way that the appellant manifested her faith and will want to manifest her faith again has not been fully considered by the judge, as she has not considered these aspects of his evidence in her decision.
13. I do find following the concessions properly made on behalf of the Secretary of State and for the reasons set out above that the decision of First-tier Tribunal Judge Wylie therefore does contain errors of law, both in terms of the judge's consideration as to the reasons why the Appellant would not openly manifest and practise her faith in Pakistan, but also in respect of the lack of adequate and sufficient reasoning in respect of the findings that the appellant only encountered harassment as opposed to persecution. These errors of law, I do consider amount to material errors of law in that they may well have affected the outcome of the decision and cannot be said that the decision will be the same irrespective of the errors. In such circumstances the decision of First-tier Tribunal Judge Wylie I do find does contain materials errors of law and is set aside.
14. It has been agreed by both legal representatives that although the Appellant is said to lack capacity and does have a Litigation Friend that obviously again although she has given a statement it would be sensible for the decision of Judge Wylie to be set aside in its entirety and for fresh findings to be made by another judge of the First-tier Tribunal in order that the extent of the problems that she faced in Pakistan can be fully considered in terms of whether she suffered from persecution or harassment, and so that reasons can be given for why she would practice her faith privately upon return. In such circumstances I do set aside the entirety of the judgment of First-tier Tribunal Judge Wylie and I find that given the amount of fact-finding required, it is appropriate for the case to be remitted back to the First-tier Tribunal to be heard before any First-tier Tribunal Judge other than First-tier Tribunal Judge Wylie.
15. The First-tier Tribunal did, given the nature of this case, make an anonymity direction and I further find that it is appropriate for a continued anonymity direction in this case. I therefore direct the Appellant is entitled to anonymity and that any report or transcript of this decision the Appellant is entitled to and is granted anonymity. No report or transcript may refer to the Appellant or to any member of her family by name or other means that may identify her. Failure to comply with this direction may lead to contempt of court. I therefore remit the case back to the First-tier Tribunal for re-hearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Wylie.
Notice of Decision
16. The decision of First-tier Tribunal Judge Wylie does contain material errors of law and is set aside in its entirety;
17. I remit the case back to the First-tier Tribunal for re-hearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Wylie.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

The First-tier Tribunal did, given the nature of this case, make an anonymity direction and I further find that it is appropriate for a continued anonymity direction in this case. I therefore direct the Appellant is entitled to anonymity and that any report or transcript of this decision the Appellant is entitled to and is granted anonymity. No report or transcript may refer to the Appellant or to any member of her family by name or other means that may identify her. Failure to comply with this direction may lead to contempt of court.

Signed Date 29th July 2016

Deputy Upper Tribunal Judge McGinty