Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00932/2016

THE IMMIGRATION ACTS

Heard at: Field House
On: 28 September 2016
Decision and Reasons Promulgated
On: 28 October 2016

Before
Deputy Upper Tribunal Judge Mailer

Between
Ms B (aka E A)
anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Ms H Masood, counsel (instructed by Synthesis Chambers Solicitors)
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

Decision and Reasons
1. I continue the anonymity direction made. This direction is to remain in place unless and until this Tribunal or any other appropriate Court, directs otherwise. As such, no report of these proceedings shall, directly or indirectly, identify the respondent or any member of her family. Failure to comply with this direction could amount to a contempt of court.
2. The appellant is a national of Pakistan, born on 11 February 1982. She appeals with permission against the decision of First-tier Tribunal dismissing her appeal on all grounds.
3. The appellant came to the UK as a visitor in August 2011. She was granted leave to enter until 6 January 2012. In November 2012 she applied for asylum. Her claim was rejected and her appeal was dismissed by the First-tier Tribunal on 26 February 2013.
4. Further representations were made resulting in a new decision directing her removal. Her appeal against that decision was dismissed by the First-tier Tribunal in a determination dated 2 July 2014.
5. Permission to appeal against both determinations was refused.
6. She then applied for asylum on 24 November 2015. She claimed to fear her husband, Mr IA, and his family, who disputed the paternity of her eldest child, contending that a neighbour, Mr BM, is the child's father. She also claimed that her two younger children were fathered in the UK by Mr MA, who is not her husband. She is now estranged from him.
7. The Judge directed herself in accordance with the guidance in Devaseelam v SSHD [2002] UKIAT 0072 and MJ (Singh) v Belgium; Tanveer Ahmed (Unaffected) Afghanistan [2013] UKUT 00253. She stated at [20] with regard to the first determination, dated 26 February 2013, that she "? [took] the following to have been found and settled":
(a) In February 2013, the appellant's claim (disputed paternity of her first child, her husband's refusal to undergo a DNA test, the attempt by her in laws to kill her first child, the complaint to the police about her in laws' ill treatment, the lodging of an FIR against her by her brother in law and her account of events following the departure from her in laws' home) lacked credibility in all material respects;
(b) The appellant's account of key aspects of her claim was peppered with contradictions and inconsistencies;
(c) The appellant had failed to establish the core facts of her claim.
8. In relation to the second determination, she stated at [21] that her representative in effect suggested that it had been tainted by the first. The First-tier Judge had additional evidence post dating the first determination. That included photographs of a burned house said to have belonged to B in the FIR at page 138 of the appellant's bundle, an FIR dated 17 May 2013, B's report of an attack on his house on 17 May 2013, an arrest warrant dated 22 and 28 May 2013, a letter to the appellant from Mr N dated 25 June 2013 and a statement from Bishop A dated 28 May 2013.
9. The Judge was not satisfied that there is an evidential basis for her to go behind the findings set out in the second determination which held that the new evidence did not answer the fundamental credibility issues in the appellant's claim. It was implausible that her in laws would pursue a vendetta against her five years after 2008. There was no corroborative evidence that the photographs showed B's house, and the appellant had not adequately explained why she delayed leaving Pakistan from 2008 until August 2011.
10. She also found insofar as the asylum claim was concerned, that none of the documentary evidence filed in her bundle in the current appeal was not available to one or both of the Tribunals hearing the first and second determinations.
11. She had regard to more recent documents in the bundle, including an FIR dated 3 May 2015 from the sibling of BM complaining that BM was shot on 3 May 2015 by Mr AR and Mr Z due to a past relationship between Mr M and the appellant. The FIR states that the assailant threatened to kill the appellant. She found that the implication is that the FIR complainant, Mr NM, is the friend who has been sending documents to the appellant from Pakistan.
12. She also had regard to a report from Rana Hospital dated 3, 4 and 5 May 2015 which was largely illegible. There was also an undated letter from the Anwar Memorial Church.
13. There was no documentary evidence showing that the person who attended at Rana Hospital in May 2015 was a neighbour of the appellant's when she lived with her husband in Pakistan. It was unlikely that the appellant's brothers in law, AR and Z would, on 3 May 2015, have voiced an intention to shoot her having not seen her since 8 July 2008.
14. The Judge was not satisfied that any of the new documents provide reliable evidence supporting the appellant's account. She was not satisfied that the appellant had been threatened by the family of her husband or that they intend her harm - [25].
15. At the hearing on 2 July 2014, the appellant stated that she met Mr MA the father of her second child in the UK, and started a relationship with him on 10 September 2011. Her last contact with him was in January 2012 when he deserted her as she refused to terminate her pregnancy and had given birth to their child on 2 August 2012.
16. The appellant stated that Mr MA was the father of her third child born in the UK on 14 January 2015. She stated that they had met again in March 2014, lived together for a few weeks and then parted in April 2014 and that her third child was conceived in approximately March 2014. She said in cross examination that she had not told the Tribunal in 2014 that she met Mr MA again and was pregnant by him since no-one asked her. The Judge found that her failure to disclose the circumstances indicated a lack of candour on her part.
17. The Judge stated at [27] that there is documentary evidence which would be consistent with MA having had a continuing relationship with the appellant after she says they separated in September 2011 and before she said they were reunited in March 2014. In particular he is named as her next of kin in the pregnancy notes recorded on 27 January 2012, with an indication consistent with them both living at 117 Stone Road. He is also named as her next of kin, again with the same address, in relation to the A&E visit on 3 February 2012.
18. The Judge noted at [28] that the presenting officer suggested MA is the appellant's husband and that all three of her children have the same father. The appellant has denied that claim. She has been asked in the past about the absence of DNA evidence to show the paternity of her children. She stated that she had been willing to participate in DNA testing 'but her husband was not'. She was asked during her interview whether she had evidence to prove that her daughters have different fathers. She was also asked again about DNA evidence to show whether or not her three children have the same father. She said she did not have any such evidence.
19. The birth certificate of her oldest daughter names her father as Mr IA. The birth certificates for her two UK born children do not include their father's details. The two UK born children have taken the last names of 'Ahmad and Ahmed' [29].
20. The Judge was not satisfied that any of the appellant's three children was fathered by a man other than her husband. She was not satisfied that the paternity of any of her three children has been in dispute. She was also not satisfied that the appellant's three children have different fathers - [30].
21. There was no evidence to show the identity, current residence, nationality or immigration status of MA. Given the evidence that he was the appellant's intimate partner in 2011 and again in 2014 and the evidence indicating the relationship continuing between them between 2011 and 2014 and the socially conservative mores of Pakistan, she was not satisfied that theirs was a series of two relatively casual encounters of comparatively short duration, each leading to the conception of a child. She was not satisfied that the appellant is no longer in a relationship with the father of her children. She was also not satisfied that the appellant would have to return to Pakistan as a lone woman with children [31].
22. She accordingly found that the appellant would not be at risk of persecution as a lone woman with illegitimate children.
23. With regard to family/private life, she noted that the child N came to the UK with her in August 2010. The other children were born in the UK. The appellant and her children are Pakistani nationals. None has lived in the UK for seven years or more. There is nothing to indicate that any of the children has a British father or a father with leave to enter or remain in the UK. There is no evidence that the appellant has a partner who is a British national, present or settled here, or a person with refugee or humanitarian protection status.
24. The appellant did not qualify under Appendix FM. None of the children qualified under the Rules for leave to remain on the basis of private life - [36-38].
25. The Judge then considered their claims under Article 8. It was in the best interests that the three children remained with the appellant. Decisions were made in 2014 to remove them from the UK. Their appeals were also dismissed in the second determination. Her three children were named as her dependants in her 2015 asylum application.
26. The appellant's current evidence was that she was not in a personal relationship with a partner or spouse.
27. The Judge was not satisfied that either of the appellant's UK born children has established any meaningful contact outside the family group. A is now 3 years and 11 months old, and the younger daughter, A, is 1 year and 6 months old. Neither had established private life calling for protection under Article 8.
28. N is in Year 3 at her primary school. She is developing spoken English but is not yet reading or writing English. The appellant had a need for an interpreter not only at the hearing but for medical appointments. It is likely that N's first language is Urdu. Although N's education is an element of a private life, given her age, first language and the relatively short time she has spent in education in the UK, the Judge was not satisfied that it would have a significant impact on her were she to return to Pakistan with her mother and siblings.
29. The proposed interference was accordingly 'lawful, justified and proportionate' [44].
30. On 30 August 2016, First-tier Tribunal Judge Page granted the appellant permission to appeal. Counsel had settled her application and had identified arguable errors of law. It was argued that the Judge misapplied the approach to be taken with the earlier findings under Devalseelan and treated herself as bound by the first determination Judge's findings of fact. The case of Devaseelam stood only for the proposition that the decision of the first Judge formed the starting point of the second determination. It was contended that the Judge merely slavishly followed what had been said before. That constituted an arguable error.
31. On behalf of the appellant Ms Masood submitted that the Judge erred in her treatment of the first determination and the manner in which she applied the guidance in Devaseelam and Djebbar v SSHD [2004] EWCA Civ 804. The Judge failed independently to decide the appeal on its own individual merits. The guidance was expressly subject to this overriding principle.
32. She submitted that the first claim was rejected in 2013, primarily on the basis of documents. The second determination in 2014 simply relied on what the Judge in the first determination had said.
33. The appellant had contended before the Judge that the difficulties for her stemmed from the first determination. That decision had been very short and scantily reasoned, based on a reading of the FIR that was probably not justified. Although it was the starting position of the previous determination there was no independent assessment of her credibility. She had submitted many more documents since the date and provided further and better explanations in evidence about what happened in Pakistan and why she is at risk.
34. Ms Masood referred to the Court of Appeal's decision in SSHD v AF [2008] EWCA Civ 117 to the effect that previous findings are not "binding" as is often incorrectly submitted. She referred to paragraph [45] of that decision. The principle relied on is not a principle of res judicata or an issue of estoppel. That being so, the Court held that it is not appropriate to speak of findings of the Judge at a hearing under an earlier order as being "binding". This is the language of issue estoppel.
35. AF also raised the question of what is to be binding. Is it every conclusion of fact and if not, what is it? There was no doubt in these circumstances that the secretary of state conceded that it was wrong to treat the earlier findings as "binding." If they are not "binding" then how should they be taken into account?
36. Ms Masood submitted that the Judge erred in her approach to the previous findings and to credibility in general. The Judge noted the contention that it had been unfair for the mistake regarding the first FIR to have the serious consequences it does for the appellant's claim and the assessment of her credibility.
37. With regard to that contention the Judge stated that in her view this was no more than an attempt to challenge the first determination. There was no new evidence about the FIR. There was nothing to show that any steps had been taken since the first determination to ascertain what dates are recorded at the police station in the original documentation or to obtain evidence authenticating the FIR. There was no evidential basis for her to go behind the findings set out in the first determination.
38. Ms Masood referred to the original FIR. The original box 6 of the FIR is dated 12 July 2008. The date in translation was given as 8 July 2008. It was clear from other dates that the report was dated 11 July 2008.
39. The appellant had stated in evidence that the date must be mistaken. Ms Masood stated that she had recently discovered the date on the original document.
40. Quite apart from this however, she adopted counsel's submission before the First-tier Tribunal that this mistake was in any event "a minor matter."
41. Ms Masood also submitted that the Judge erred in her approach to the first determination. She found at the outset that "the following was found and settled." She had already stated at [19] that the assertion that this had been a minor matter which should not have been regarded as significant as it was in the first determination was merely an attempt to challenge the first determination.
42. Ms Masood submitted that the Judge erred in her approach in stating that the first determination was to be taken to have "found and settled" the matters set out at [20]. That was not the starting point. In effect the Judge was accepting that that decision had been beyond reproach without any proper consideration of the mistake relied on. Accordingly, her subsequent findings at [24-25] were coloured with regard to her view of the other documents.
43. With regard to the second ground of appeal regarding the risk on return as a lone female, Ms Masood submitted that a significant plank of the appellant's case was that whatever was said in respect of risk of return due to threats from her husband's family in Pakistan, she would, if removed, have to live there in a new and unfamiliar area as a lone woman with three children from different fathers. She referred to SA (lone women - ostracism) Pakistan [2016] UKUT 0067, which was drawn to the Judge's attention at [10].
44. She referred to the suggestion by the presenting officer that MA, the appellant's ex- partner in the UK, was the appellant's husband - [28]
45. There had however, never been any suggestion that they were married. The Judge did not make any findings about this. The birth certificate showed that the father's name is IA. There has never been any challenge to that Pakistani birth certificate.
46. The name of the appellant's UK partner, MA, appeared on numerous documents relating to the appellant and her UK born children. Some were referred to by the Judge, for example at [27].
47. It is plain that two of the children were fathered by a man in the UK, named MA. It is equally clear that it had never been suggested otherwise that the appellant did not marry MA.
48. Ms Masood referred to paragraph [31] of the decision where the Judge stated that she was not satisfied that the appellant would have to return to Pakistan as a lone woman with children. She reiterated that it had never been suggested that the appellant's husband is MA. She thus asked: With whom would the appellant be returning? There was no finding about this. The suggestion made by the presenting officer was left "hanging" and undecided.
49. The finding that the appellant would return to Pakistan with someone, presumably a man and presumably her husband - whoever in the Judge's view that is - was, she submitted, evidentially unsupported and lacked coherency. It is thus highly unsatisfactory that the Judge did not make any finding with whom she would be returning. The Judge has accordingly not properly addressed the real risk on return.
50. She submitted that Judge Sullivan's conclusion was based on little more than "guessing."
51. On behalf of the respondent, Mr Whitwell relied on the Rule 24 submissions. With regard to Ground 1, he submitted that the Judge has given detailed and adequate consideration to the submissions regarding the first FIR. She "self directed" herself as to the relevant case law. It is clear from paragraph [19] that she treated the first determination as the starting point and concluded that there was no adequate evidence to go beyond its findings.
52. Having considered the second determination, she noted that there was no adequate basis for departing from the adverse credibility findings outlined in the first determination as the additional evidence did not address the fundamental credibility concerns.
53. The Judge reached reasoned and sustainable findings on this documentation including a discrepancy outlined at paragraph [24(c)].
54. With regard to Ground 2, there is a finding that IA and MA are the same person. He referred to [27] where documentary evidence was consistent with MA having had a continuing relationship with the appellant after she said that they separated in September 2011 and before the appellant claimed that they were reunited in March 2014. There is also reference to being named as the next of kin. On the face of it he is therefore stating that he is her next of kin. He referred to question 133 at the interview where the appellant when asked whether she had any evidence to prove that her daughters had different fathers other than the birth certificate replied that she did not have any evidence apart from the certificates.
Assessment
55. Although it is contended that the Judge's approach to the first determination was incorrect as she stated at the outset that she took the matters set out at [20a-c] to have been found and settled, she had in fact had regard to the submission relating to the evidence concerning the alleged "genuine mistake" which was only a minor matter.
56. The appellant was represented by different counsel. It was only at the hearing before the Upper Tribunal that Ms Masood contended for the first time that the date on the original translated document differed from that contained in the translation. That assertion had never been made to the First-tier Tribunal Judge.
57. With regard to the second ground, the appellant had contended that if returned she would have to live in Pakistan in a new and unfamiliar area as a lone woman with three children, whom she claimed had different fathers.
58. Mr Whitwell has accepted that the Judge had in fact found that IA and MA are one and the same. He submitted that there was a proper basis for that conclusion.
59. However, the source of this asserted finding was based on suggestions made by the presenting officer. The Judge went on to state that she was "not satisfied" that the appellant's three children had different fathers [30].
60. She also stated that there was no evidence to show the identity, current residence, nationality or immigration status of MA. She stated that "? Given the evidence that he was the appellant's intimate partner in 2011 and again in 2014, the evidence indicating a relationship continuing between them between 2011 and 2014, and the socially conservative mores of Pakistan ..." she was not satisfied that theirs was a series of two relatively casual encounters of comparatively short duration each leading to the birth of a child. She was not satisfied that the appellant is no longer in the relationship with the father of her children. She was also not satisfied that the appellant would have to return to Pakistan as a lone woman with children - [31].
61. It is not clear whether the First-tier Judge found that the appellant's husband was in the UK at the date of conception of the appellant's two UK born children. Nor was there sufficient evidence to justify the conclusion that MA and IA are the same person. The appellant herself denied that assertion. Although there was no DNA evidence produced as to the paternity of the children, the birth certificate of the appellant's oldest daughter named IA as her father. The birth certificates for her two UK born children did not include their fathers or the fathers' details. The two UK born children have taken the last names "Ahmad and Ahmed" [29].
62. The appellant had contended that a significant component relating to her risk of return related to the threats from her husband's family in Pakistan.
63. The name of the appellant's UK partner whom she gave as MA, appeared on numerous documents relating to the appellant and to her UK born children. It had never been suggested that the appellant had married MA.
64. I find, as submitted, that the suggestion made by the presenting officer that MA is the appellant's husband and that all three children have the same father was left hanging and remains undecided.
65. I am accordingly satisfied that her finding that the appellant would return to Pakistan with someone, presumably a man, possibly her husband, whoever in the Judge's view that is, was vague and evidentially unsupported.
66. I accordingly find that in making her decision the First-tier Tribunal Judge made an error of law such as to require the decision to be set aside and the appeal determined afresh.
67. Ms Masood submitted without opposition that if I arrived at that conclusion, the appeal should be remitted to be heard afresh and de novo by a different Judge of the First-tier Tribunal.
68. I accept that is the appropriate course in the circumstances. The parties will in due course be notified of a fresh hearing date before the First-tier Tribunal and the appellant's solicitors are at liberty to apply to that Tribunal for further case management directions, should that become necessary.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and the decision is set aside. The appeal to the Upper Tribunal is allowed to the extent that the appeal is remitted to the First-tier Tribunal, Hatton Cross, to be determined afresh by a different Judge of that Tribunal.
Anonymity direction continued.

Signed Date 22 October 2016
Deputy Upper Tribunal Judge C R Mailer