Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00737/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 November 2016
On 06 December 2016

Before

UPPER TRIBUNAL JUDGE blum

Between

MA
(anonymity direction MADE)

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms C Hulse, Counsel, instructed by Joules Law
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Mr MA (Appellant) appeals against the decision of Judge of the First-tier Tribunal Dhaliwal, promulgated on 23 August 2016, dismissing his protection and human rights appeal against the Respondent's decision of 13 January 2016 refusing his protection and human rights claims.

Background

2. The Appellant is a national of Pakistan, date of birth 18 July 1985. He entered the United Kingdom pursuant to a visitor entry clearance granted on 16 March 2015 and claimed asylum on 14 September 2015. The Appellant is an Ahmadi and he claimed to face a real risk of persecution in Pakistan on account of his religion.

3. The following is a summary of the Appellant's account. He hailed from a prominent Ahmadi family. He had an altercation with a mullah involving the Appellant's motorcycle and the mullah's stall. The Appellant accidentally made physical contact with the mullah, who was the son of an influential man. The Appellant was recognised because his father was a doctor and the Mullah said he would kill every Ahmadi. The Appellant maintains that, together with 10 to 12 other men, the mullah attacked his uncle's shop that evening, and the Appellant's house was attacked some 3 days later. A threat was made against the Appellant's father and the father fled to the UK where he was eventually granted asylum. The Appellant went to Sweden on 27 August 2010 to study, but also because he was concerned for his safety. He did not claim asylum because he wanted to return to Pakistan as he believed his troubles would be forgotten. The Respondent noted that the Appellant also went to Norway and Germany. The Appellant returned to Pakistan in 2014 and got married before returning to Sweden. He left Sweden in July 2015 because he lost his job and returned to Pakistan. The Appellant claims that on 7 August 2015 he was outside a mosque when a man shouted his name and gathered others together. The Appellant fled and came to the UK. Since being in the United Kingdom the Appellant joined the Ahmadiyya Muslim Association and has been an active member.

4. The Respondent accepted that the Appellant was Ahmadi. The Respondent did not however find that the Appellant held a well-founded fear of persecution. The Respondent noted that the Appellant had returned to Pakistan over 3 times since he left in 2010, and that he had not claimed asylum in 3 different countries in which he had resided. The Appellant had never openly preached his faith in Pakistan and the Respondent was not satisfied that the Appellant genuinely intend or wished to manifest his faith openly in Pakistan. The Respondent was not satisfied that preaching was of particular significance to the Appellant's religious identity.

The First-tier Tribunal hearing

5. The First-tier Tribunal heard evidence from the Appellant and from two witnesses, his father and the vice president of the Ahmadiyya Jamaat of West Birmingham. The judge set out the Appellant's claim, noting his various memberships of Ahmadi groups over the years, and set out the basis for the Respondents decision.

6. At [25] the judge indicated that the real issue she needed to consider was whether there was a risk to the Appellant based on how he would conduct himself on return to Pakistan, and if so, whether relocation was a realistic option, having regard to MN and others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 00389 (IAC).

7. At [27] the judge noted that the Appellant preached to his friends whilst at university in Pakistan, never to the general public. In his asylum interview the Appellant had stated that he had not openly preached his faith in Pakistan. The judge noted the Appellant's evidence that he was able to practice his faith in Pakistan by preaching discreetly to a trusted select few.

8. The judge noted that, whilst in Sweden, the Appellant was actively involved in the Ahmadi community and preached by distributing leaflets. The judge noted that, whilst in Germany, the Appellant took a friend with him to an Ahmadi congregation. The judge noted the Appellant's involvement in the Ahmadiyya Muslim Association in the UK.

9. At [28] the judge accepted, based on her findings of fact, that the Appellant viewed his faith "? as an important aspect of his life and that he had dedicated the majority of his life to his faith." The judge noted however that whilst in Pakistan the Appellant had not engaged in any behaviour that was likely to bring him to the adverse attention of the authorities.

10. The judge attached significance to the Appellant's activities in the Sweden, Norway and Germany. At [30] the judge said there was no evidence of any involvement by the Appellant with the Ahmadi community in Norway at all. The judge was not satisfied that the handing out of leaflets in Sweden and his visit to a congregation in Germany, when he invited a friend, indicated that the Appellant felt the need and desire to engage in preaching to be able to identify himself as an Ahmadi. The Appellant's preaching activities was said to be limited throughout the period of 5 years that he lived in these safe countries. The judge concluded that preaching was not an integral and important part of the Appellant's identity.

11. The judge questioned (at [31]) the motivation behind the Appellant's more public activities in the UK. The judge concluded that the Appellant's activities in the UK were an attempt to bolster his asylum claim. The judge supported this conclusion by reference to the fact that the Appellant took legal advice following his entry into the United Kingdom and that shortly after taking legal advice he made contact with his local Ahmadi community. The judge stated that the only difference between the other safe countries and the UK was that the Appellant's parents resided in the UK. The judge was of the view that, if the Appellant's preaching activities had been an important element of his religious identity then he would have conducted himself in a similar way in Sweden, Norway and Germany [32]. The judge concluded by finding that preaching was not an essential and important part of the Appellant's identity as an Ahmadi, and that the Appellant would be able to practice his faith in Pakistan without feeling the wish to practice and manifest aspects of his faith openly.

12. At [37] the judge concluded that the incidence of September 2009 and the recent incident at the mosque following the Appellant's return to Pakistan did not support his claim in any material way. The judge stated, "It may well be that in 2009 that an incident began as a result of him making accidental contact with a male and he was then called names based on his religion. It is unfortunate that there is abuse in Pakistan directed towards those of the Ahmadi faith. Whilst this is unacceptable, it is harassment and threats which can be dealt with internally in Pakistan through the police." Given her finding that the Appellant did not genuinely wish to engage in conduct that would breach Pakistan laws, the judge found there was no reason why the Appellant could not relocate elsewhere in Pakistan and continue practicing his faith.

The grounds of appeal and the grant of permission

13. The original grounds, which were not drafted with great precision, contended that the judge misapplied MN. Her finding that it was not particularly important to the Appellant's religious identity to practice and manifest his faith openly in Pakistan was said to be inconsistent with her acceptance that the Appellant viewed his faith as an important aspect of his life and dedicated the majority of his life to it. It was submitted that any form of preaching, even if discrete, was prohibited by the Pakistan penal code and the Appellant therefore fell within the ambit of MN. This particular ground was not pursued at the error of law hearing.

14. The grounds further contended that the judge failed to apply the principles enunciated in HJ (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 1024 as the Appellant was unable to recite the Koran and say the call to prayer, or call his mosque a mosque. The grounds contended that the judge failed to consider the decision in his father's asylum appeal. It was submitted that the Appellant's legal representatives at the time of his appeal hearing failed to include his father's asylum appeal decision (dated 8 October 2014) in the appeal bundle. This was said to have amounted to poor legal practice and negligence. To that end a complaint had been lodged against the previous representatives. It was submitted that the judge erred by not enquiring as to why the father's asylum appeal was not before the Tribunal. It was submitted that a large part of the Appellant's claim was corroborated by the decision in his father's asylum appeal and that the judge failed to make any reference to the evidence given by the Appellant's father, either in his statement or his oral evidence. The father's successful asylum appeal was particularly relevant to the judge's conclusion (at [37]) that the threats made against the Appellant by the mullah could be dealt with internally in Pakistan through the police.

15. The First-tier Tribunal granted permission on all of the Appellant's grounds holding that they had shown arguable errors of law that may have made a material difference to the outcome of the appeal.

Submissions at the error of law hearing

16. Ms Hulse sought to introduce a supplementary bundle pursuant to rule 15 (2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. This supplementary bundle included letters of complaint to Morden solicitors (the Appellant's previous representatives), a witness statement of the Appellant regarding the complaint, and the asylum appeal determination of the Appellant's father. Ms Hulse did not produce a skeleton argument that would have assisted the Upper Tribunal.

17. Ms Hulse initially submitted that I should consider the determination in the father's asylum claim as this was relevant to whether the judge erred in law by failing to enquire into the decision. It was submitted that judges very often enquired about determinations in respect of other family members, and that the Home Office often produced such determinations. Ms Hulse submitted that the judge should have requested the father's determination, even though this was not provided by the Appellant.

18. Thereafter, Ms Hulse's submissions revolved around four different issues. Firstly, the judge erred in law by failing to take into account the evidence from the Appellant's father, both in respect of the father's written statement and in respect of the oral evidence at the hearing. The judge failed to indicate what weight, if any, he placed on the father's evidence. In particular, the judge was not entitled to conclude that the treatment to which the Appellant and his father were subjected in 2009 could be dealt with internally by the Pakistan police.

19. Secondly, Ms Hulse submitted that the judge failed to fully consider the letter from the Ahmadiyya Muslim Association UK (at C149 in the Respondent's bundle) in respect of the Appellant's significant involvement within the Ahmadi community. Following MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC) it was submitted that this letter provided independent verification and confirmation of the Appellant's activities.

20. Ms Hulse thirdly submitted that the judge failed to properly assess the evidence relating to the Appellant's activities in Sweden, Norway and Germany, or that the judge's conclusions were not supported by the evidence before her. In respect of the Appellant's proselytising activities in Sweden Ms Hulse pointed out that there may well have been language issues, that the Appellant was studying full-time for a Master's degree (which he wasn't in the UK), and that when distributing leaflets the Appellant would engage with individuals about his religion. The Appellant's evidence was that he had only visited Norway on four occasions and Germany on one occasion, and that the Appellant had preached in Germany by taking a friend, at his own expense, to a three-day congregation. Ms Hulse's 4th submission was that the judge failed to address the fact that the Appellant came from a prominent Ahmadi family and that this was relevant in determining how the Appellant would wish to act if removed to Pakistan.

21. Ms Isherwood submitted that the Appellant's previous representatives had the determination of his father's asylum appeal and had chosen not to adduce it in evidence. There was no obligation on the judge to seek out a document that the Appellant's representatives chose not to adduce. The test for the admission of further evidence in an error of law hearing, as set out in Ladd v Marshall [1954] 1 WLR 1489, and modified in E & R v Secretary of State for Home Department [2004] EWCA Civ 49, had not been met. The judge was rationally entitled to her conclusions in respect of the Appellant's activities in Norway, Sweden and Germany, and was entitled to take into account an increase in the Appellant's proselytizing activities once he entered the UK.

Discussion

22. Ms Hulse sought to introduce the determination promulgated by the First-tier Tribunal in respect of the asylum appeal by the Appellant's father. It was not disputed that the Appellant and his representatives at the time of the First-tier Tribunal hearing had possession of the father's appeal decision. It appears that the solicitors specifically chose not to adduce the decision at the hearing. Whilst I accept Ms Hulse's observation that judges often ask about appeal decisions relating to other family members, and that the Home Office often provide such decisions, I am not satisfied there is any obligation on the judge to actively seek out or request a decision in all circumstances. This remains an adversarial jurisdiction and it would be inappropriate for a judge to give the impression of descending into the arena and acting in an overtly inquisitorial role. It is up to the parties to provide the evidence they deem important. It would place an unreasonable burden on a judge to seek out evidence that could have been provided but was not provided, after consideration, by a party.

23. I have considered the authorities of E & R v Secretary of State for Home Department [2004] EWCA Civ 49 and R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982. I am not satisfied there was any 'mistake' in the failure to adduce the father's asylum appeal decision. It appears that specific consideration was given as to whether to adduce the father's decision. In the circumstances I can see no merit in Miss Hulse's assertion that the Appellant was deprived of a fair hearing by the conduct of his representatives or the failure to provide his father's decision. I am not satisfied that it is appropriate to admit the father's decision into evidence when determining whether the first-tier Tribunal materially erred in law. It remains clear however that the judge accepted that the Appellant's father was a refugee, and that the father produced a written statement and gave evidence before the judge.

24. For the following reasons I find there is merit in Ms Hulse's submission that the judge either misdirected herself in her consideration of the Appellant's proselytising activities in Sweden, Norway and Germany, or that the judge's conclusions in relation to such activities was not supported by evidence before her.

25. The judge clearly attached significant weight to the different nature of the Appellant's activities in Sweden, Norway and Germany, in comparison to his increased public activities in the UK (see [32] & [34]). To be entitled to distinguish between the Appellant's activities in these countries, based on differences in the way he conducted himself, it was important for the judge to have fully considered the circumstances of the Appellant in these countries and the nature of the activities that he undertook.

26. The judge appeared to believe that the Appellant lived in Germany and Norway as well as Sweden (see [19], 29] and [30]). There did not however appear to have been any evidence suggesting that the Appellant ever lived in Germany or Norway. There was very little evidence before the judge as to how long the Appellant resided in Norway or Germany, how frequently he visited those countries (it was the Appellant's evidence that he had been to Norway about 4 times (Q11) but he was not asked how many times he had visited Germany) or why he went to those countries. There was no evidence before the judge as to whether the Appellant spoken Norwegian or German (or indeed Swedish).

27. The Appellant initially resided in Sweden as a student, and it appears that he was last granted permission to remain there as a worker, although he subsequently lost his job. In his interview the Appellant indicated that he distributed 'preaching leaflets' that were designed to introduce the reader to the Ahmadi faith (Qns 55, 57, 58). The Appellant used to distribute these leaflets to houses and outside the university campus (Qns 60 & 62). When he handed out the leaflets the Appellant would talk about the Ahmadis as being a sect of Islam (Qn 64). The Appellant said that he didn't avoid preaching to Muslims and would distribute to everyone on the road but those he believed were Muslims would not take the leaflets from him because they knew he was Ahmadi (Qn 67). When asked why he distributed the leaflets the Appellant said it was a part of preaching and because there was not much else to do for his organisation in the town in which he lived (Qn 68). The Appellant indicated in his interview that there were only 3 Ahmadis in the town in which he lived (Qn 55). This would clearly restrict the range of Ahmadi activities the Appellant would be capable of undertaking.

28. I am satisfied that the judge failed to contextualise the Appellant's activities in Sweden. No account was taken of the fact that the Appellant was only one of 3 Ahmadi's in his town, or the fact that he was studying at the same time. Nor is it clear that the judge fully appreciated the circumstances of his leafleting. If the judge had properly considered this evidence she may have concluded (but would not have been obliged to conclude) that the Appellant's activities were more significant in terms of proselytising than she actually found.

29. The judge appears to have proceeded on the basis that the Appellant lived in Norway and Germany. There was simply no evidence before the judge to support this assumption. I'm not satisfied the judge was entitled to hold against the Appellant the absence of any asserted proselytising in Norway in circumstances where it was wholly unclear how long the Appellant resided in Norway, what he was doing there or how often he visited.

30. It is not clear from the Appellant's interview or statement how often he visited Germany. Ms Hulse submitted that he only went to Germany once but the evidential basis for this assertion is unclear. At Qns 71 to 77 of his asylum interview the Appellant described taking a Muslim friend who was studying with him at university (presumably in Sweden) to a 3 day Ahmadi congregation in Germany. The Appellant put his friend up in a hotel at his own expense, and the friend listened to the speeches given by the current Ahmadi leader. If the Appellant did only visit Germany on the one occasion then his entire visit was an exercise in proselytising. The judge held against the Appellant the absence of any other evidence of proselytising activity in Germany, but she was only entitled to do so if fully aware of the Appellant's circumstances in Germany, such as how long and how often he visited, and what he did when he was there.

31. The judges assessment of the (lack of) proselytising activities of the Appellant in Sweden, Norway and Germany, in contrast to his activities in the UK, was a material finding underpinning her conclusion relating to the importance to the Appellant of holding open discourse about his religion and the importance to his religious identity of being able to practice and manifest his faith openly. For the reasons given above I am satisfied that the judge did err in law in her approach to this assessment and that this renders her conclusions unsafe.

32. I have additional concerns relating to the judge's assessment of the incidents that cause the Appellant to leave Pakistan in 2010. At [37] the judge states that the Appellant may well have been in an incident involving accidental contact with a mullah. According to the judge the incident involved the Appellant been called derogatory names based on his religion. This however does not fully reflect the Appellant's account, or that of his father. The Appellant claimed that the mullah recognised him because his father was a doctor, threatened him and threatened to kill all Ahmadis. The Appellant described how, that evening, his uncle's shop was attacked, and how some 3 days later there was an attack on the Appellant's home during which the Appellant was requested to leave the house. With the greatest respect of the judge, this goes some way beyond mere harassment and threats. If the Appellant's account was true (the judge did not make a specific adverse finding in relation to this account) the Appellant was specifically targeted in a serious manner by a number of individuals because of his religion. The judge did not identify any background evidence before her indicating that activity of this nature could be "? dealt with internally in Pakistan through the police." On the contrary, the general tenor of the background evidence before the judge relating to Ahmadis in Pakistan suggested that the police may not be willing to deal adequately with the threats and assault (see paragraphs 2.33 and 2.3.4 of the Country Information and Guidance - Pakistan: Ahmadis (May 2016), contained in the Appellant's bundle). Furthermore, although the appeal decision in respect of the Appellant's father's asylum claim was not before the judge, the judge was aware that the Appellant's father was a recognised refugee (see [18]). In his appeal statement the Appellant's father made specific reference to the attack on the family home on 19 September 2009 (paragraph 8 of the father's statement, A14). The Appellant's father described that he and his family feared for their lives (paragraph 9, supra). No reference was made by the judge to this evidence.

33. In all the circumstances I find that the First-tier Tribunal's decision is unsafe. Given that the issue of the Appellant's activities in Sweden, Norway and Germany will need to be revisited, I consider it appropriate to remit the matter back to the First-tier Tribunal for a full de novo hearing.

Notice of Decision

The First-tier Tribunal decision is vitiated by a material error of law.
The matter will be remitted back to the First-tier Tribunal for a fresh hearing, to be heard by a judge other than Judge of First-tier Tribunal Dhaliwal.

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

Unless and until a Tribunal or court directs otherwise, the Appellant granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his 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

Upper Tribunal Judge Blum 06 December 2016