Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/02073/2015
PA/02074/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 1st November 2016
On 1st December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

F A
S H
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O'Ryan of Counsel instructed by ILC Solicitors
For the Respondent: Mr Diwncyz, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appellant's appeal against the decision of Judge Myers made following a hearing at Bradford on 15th August 2016.

Background
2. The appellants are a father and daughter, citizens of Pakistan. They entered the UK as visitors on 22nd October 2014 and claimed asylum on 1st April 2015.
3. The appellant claimed that he was a successful businessman from Jhelum. He donated land for a mosque to be built and it was constructed in 2010. In February/March 2014 fundamentalists from Tabligh Jammat began to try to take over the mosque and threatened the appellant and his family. He was informed by a friend that he had been accused of blasphemy in an FIR which was lodged on 5th October 2014. The appellant was told that his life was in danger and, because the family already had visas for the UK they decided to come here for a time in the hope that the situation would resolve itself. Shortly after arrival, he consulted solicitors who told him that he needed to submit evidence in support of his claim. He obtained two further FIRs.
4. In December 2014 the appellant sent his wife and son back to Pakistan to try and bring about a resolution of the situation but this was unsuccessful, and she returned to the UK. On 20th January 2015 a warrant was issued for the appellant's arrest.
5. The judge found the appellant and his wife to be wholly credible. She said that any inconsistencies in the evidence were minor and did not detract from the central core of their account. She accepted their explanation as to why they did not claim asylum at the first opportunity and she rejected the submission by the Presenting Officer that there was some underlying motive for their doing so such as business failure. She concluded that it was improbable that the appellant would risk losing all his assets to come to the UK and noted that the family had made frequent visits here and had impeccable immigration histories.
6. She considered the three FIRs which had been submitted. Two had been accepted as being genuine by the Secretary of State, but the third, accusing them of blasphemy, had been found to be false following a document verification check. This was following a phone call to the police at Jhelum. The judge said that there could be several explanations for the police's response to the enquiry by the Immigration Liaison Officer, who had not been identified, and there was no copy of the police records used to show that the details on the FIR were inconsistent. She concluded that the respondent had not shown that the appellants had submitted a false document. She concluded that the appellants had given a credible account and that they had been accused of blasphemy in Pakistan.
7. The judge then wrote as follows,
"On their own evidence the appellants were able to stay in Islamabad and leave the country without any trouble because the allegations against them were local to Jhelum and there was no interest in them out of the area. Furthermore it was considered safe for Mrs H to return to Pakistan in December although not to return to Jhelum. It is now nearly two years since the blasphemy accusation was made against the appellants and no indication that the FIR is being actively pursued. On the contrary, the update from the police dated 29/03/2016 suggests that the complainant was aggrieved because nothing had been done about the initial complaint and although the police minute it states that further investigations and proceedings will follow there is nothing to suggest any further action. Pakistan is a vast country with a huge population and whilst I accept that it may not be safe for the appellants to return to their home area, I do not find that it will be unduly harsh for them to return as a family to another area such as Islamabad. The appellants are affluent and although they may have no close relatives in other areas their evidence was that they had cousins and influential connections. There is nothing to suggest that they would have a high profile in another urban area or that their case has received nationwide publicity. In my judgment the blasphemy charge has come about because of localised jealousy and those who have adverse interest in the appellants will not have the inclination or the resources to pursue them out of the area."
8. On that basis she dismissed the appeal.
The Grounds of Application
9. The appellant sought permission to appeal on the grounds that the judge had failed to make a finding on a material fact, namely the warrant of arrest which had been issued in January 2015. She made no reference to it in the determination at all, which was material because she had failed to consider that the appellants were likely to be treated as absconders and listed on exit control lists monitored by the immigration service at port. Further, since they are persons for whom criminal proceedings are extant, internal flight will not generally be available for them. (AK and SK (Christians: risk) Pakistan CG [2014] UKUT 569).
10. Permission to appeal was granted by Judge Pedro on 28th September 2016 for the reasons stated in the grounds.
The Hearing
11. Mr Diwncyz accepted that the judge had erred in not making any reference to the warrant but submitted that it was immaterial because even if she had considered it, she would have dismissed the appeal since the warrant made no difference to the viability of relocation.
12. Mr O'Ryan submitted that the decision should be remade on the basis that the judge's credibility findings had not been challenged. They should stand. It followed that there was no reason not to accept that the arrest warrant was genuine. If it was, the appellants would be at risk on return to Pakistan as absconders, having not complied with the requirements of the warrant and would be subject to criminal prosecution under the blasphemy laws, and thereby at risk of persecution (AK and SK).
Findings and Conclusions
13. Clearly, the judge ought to have referred to the arrest warrant. The appellant disclosed its existence of the arrest warrant at his screening interview. He was asked whether he was subject to an arrest warrant and he said that he was. He said that he did not know the date but he found out in February or March 2015. He submitted copies to the interviewing officer. He also made a reference to the warrant in his witness statement and at question 199 of his SEF interview when he was asked who he feared if he was to return to Pakistan. He replied,
"Police, because of the arrest warrant has been issued against me. That warrant is a non-bail warrant. After my arrival when we came here we didn't have any intention to claim asylum, we didn't know about asylum, after a few days I sent my wife back to Pakistan, tried to settle the matter with the help of money, to use money to settle this."
14. The omission could only be immaterial if it was not capable of affecting the outcome of the appeal. In this case it plainly could. Accordingly the judge erred in law in failing to have reagard to relevant evidence. Her decision is set aside.
15. The appellant, having given oral evidence before the Immigration Judge, was found to be entirely credible by her. Those credibility findings are unchallenged both by way of appeal and again not challenged in submissions today.
16. I accept that there is no basis for concluding that the arrest warrant is not a reliable document. It refers to PPC.295/13, which is the reference to blasphemy in the Pakistan Penal Code.
17. At paragraph 62 of AK and SK the Tribunal wrote,
"The filing of an FIR does not however necessarily lead to arrest. A police investigation is then required and according to recent amendments in the procedures, a senior officer must assess whether the charges have any substance. Once a report is prepared confirming the charges trial proceedings ensue. If the police are unable to arrest the accused, they may apply to the courts for a warrant. Failure to respond to a warrant means the accused is classed as an absconder and is likely to be listed on the exit control list monitored by the immigration service at the airports."
18. In AK and SK the Tribunal held at 6,
"Non-state agents who use blasphemy laws against Christians are often motivated by spite, personal or business disputes, arguments over land and property. Certain political events may also trigger such accusations. A blasphemy allegation, without more, will not generally be enough to make out a claim under the Refugee Convention. It has to be actively followed either by the authorities in the form of charges being brought or by those making the complaint. If it is, or will be, actively pursued, then an applicant may be able to establish a real risk of home in the home area and an insufficiency of state protection."
19. The Tribunal held, additionally, that where an individual is accused of blasphemy which is being seriously pursued, there is in general no internal relocation alternative. Whilst the warrant itself is now some 21 months old, in the appellant's documents there is an excerpt from the daily diary at the police station in the City of Jhelum which records a written application made on 29th March 2016 on behalf of individuals seeking to take action against the appellants.
20. The appellant, on the findings of the original judge, had established a risk in his home area. The existence of the warrant renders him at risk on the point of return. He is at risk on the basis that he has been accused of blasphemy and the charge is being seriously pursued. Accordingly, the appellant has made out his case to be entitled to international protection.

Notice of Decision
21. The original judge erred in law. Her decision is set aside. The decision is remade. The appellants' appeals are allowed.

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 26 November 2016

Deputy Upper Tribunal Judge Taylor