Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03122/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th August 2016
On 17th August 2016

Before

upper tribunal Deputy judge ROBERTS

Between

[h t]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Malik, Thompson & Co 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 Judge Martins made following a hearing at Hatton Cross on 21st April 2016.
Background
2. The Appellant is a citizen of Pakistan born on [ ] 1981. She arrived in the UK on 20th June 2015 and claimed asylum on arrival, on the basis of her Ahmadi faith. She has family members in the UK, including parents and a sister. Her husband who is also an Ahmadi remains in Pakistan.
3. When her appeal came before the First-tier Tribunal, it was accepted that she is of the Ahmadi faith, but not that she had suffered persecution on account of it, nor that she genuinely feared persecution on return to Pakistan.
Grounds of Application/ UT Hearing
4. The Appellant sought permission to appeal the FtT's decision in detailed grounds, which were relied upon by Mr Malik at the hearing. So far as the grant of permission is concerned it characterised the three grounds upon which permission was sought as essentially amounting to variants on one ground. The grant succinctly sets out the issue before me and the relevant part reads as follows:
"It is arguable that the Tribunal failed to assess whether the Appellant would exercise discretion in the practice of her religion upon return to Pakistan and, if so, whether this would be due to fear of persecution or due to some other reason. The three grounds are effectively variants of the above argument and permission to appeal in respect of them is accordingly granted."
5. Mr Malik's submission followed the lines of the grounds seeking permission. He submitted first that the judge had failed to follow binding country guidance case law MN and Others CG [2012] UKUT 00389 (IAC), because there was a failure to consider the Appellant's evidence and give appropriate weight to the letter of support produced by the AMA UK. Secondly the judge had failed to consider the letter of support produced by the AMA UK and thirdly had failed to give consideration to the Appellant's sur place activities.
6. In the elaboration of those points, Mr Malik submitted that it was incumbent upon the judge to undertake the two-step approach outlined in MN. The judge first had to establish whether the Appellant is an Ahmadi and having established that whether the Appellant would have to exercise discretion in the practice of her religion on return to Pakistan and if the answer to that question is "yes" would this exercise of discretion be due to fear of persecution or due to some other reason.
7. He submitted that the determination fell short of carrying out that exercise and therefore the judge's conclusion that the Appellant would not be at risk on return to Pakistan, lacked proper reasoning.
8. Mr Tarlow on behalf of the Respondent defended the decision. He referred to [48] and [49], which, he said showed that the judge had turned her mind to the two questions set out in MN and Others. Concerning the criticism made that the judge had not specifically mentioned MN and Others, that could not count as an error requiring a decision to be set aside, provided the judge had followed the principles. He submitted that a full reading of the text would show that the judge had followed those principles. He had accepted that the Appellant is an Ahmadi. He had made reasoned findings showing why the core of the Appellant's claim was not credible. Those findings set out that the incident which triggered the Appellant's flight to the UK, revolved around an incident in April 2015 when she claimed she was preaching at home and that the threats of one of the women caused her to experience stress and anxiety, which in turn caused her a miscarriage. The judge set out that there was no evidence to link the miscarriage with that incident.
9. The judge had noted the AMA letters and noted that there was no mention of the Appellant preaching in either Pakistan nor the UK.
10. Mr Tarlow submitted that therefore the grounds amounted to no more than a disagreement with the judges' findings and decision.
Consideration
11. Clearly it is accepted that the Appellant is an Ahmadi. The criticism of the judge's approach therefore is on this basis. The judge failed to assess whether the Appellant would exercise discretion in the practice of her religion on return to Pakistan. If the answer to the question is "yes" would this exercise of discretion be due to fear of persecution or due to some other reason.
12. The first point to consider is the historical reason for the Appellant's flight to the UK. The judge found the Appellant had not been open in her evidence when she said that she suffered stress following an incident in her home in April 2015 and that this had resulted in her miscarriage. The medical evidence showed simply that she was hospitalised (sadly) due to a miscarriage. Therefore I agree with Mr Tarlow that it was open to the judge to disbelieve the Appellant's account of how her miscarriage came about and equally open to the judge to place little or no reliance upon the one incident which the Appellant claims caused her stress and miscarriage.
13. Equally I find the judge specifically referred to the letter from AMA UK, which made no reference to any preaching the Appellant had been involved in, in Pakistan. The judge did fully acknowledged and set out at [34] the activities which the Appellant had engaged in after arriving in the UK.
14. However, despite making reasoned findings on the Appellant's historic claim, I find force in Mr Malik's submission that the judge's decision does not go far enough to show that there has been proper consideration given to the second step identified in MN and Others. Step two involves an enquiry into the Claimant's intentions or wishes as to his or her fate if returned to Pakistan. The burden is on the Claimant to demonstrate that any intention or wish to practice and manifest aspects of the faith openly that are not permitted by the Pakistan Penal Code, is genuinely held and of particular importance to the Claimant to preserve his or her religious identity. The decision-maker needs to evaluate all the evidence. Behaviour since arrival in the UK may also be relevant.
15. There is of course a cautionary note in this and had note 8 stated Ahmadis who are not able to show that they practice their faith at all in Pakistan or that they did so on anything other than the restricted basis described in (paragraph 2) above are in general unlikely to be able to show that their genuine intentions or wishes are to practise and manifest their faith openly on return.
16. Although the judge sets out the detailed letter from AMA UK, I find the reasons for rejecting that evidence unclear. It may well be that having found the Appellant's historic claim lacking in credibility the judge has decided that she can place little reliance on the sur place activities but she does not say that. There must be proper consideration and reasons given for rejecting the evidence put forward.
17. The judge at [54] says that he notes that the Appellant is involved in the Ahmadi community in the United Kingdom and on account of her lack of English it is said she does not preach although she does stand at stalls and hands out leaflets. Thereafter however the judge simply goes on to say that he cannot be satisfied on the evidence that she has suffered persecution on account of her faith. I see no analysis of that evidence, leading to the conclusion given.
18. That evidence is material to the Appellant's claim and therefore, I find no alternative but to set the decision aside for material error.
19. I did canvass with the parties, the appropriate course should I find material error in the FtT's decision. Mr Malik's view was that the matter should be returned to the First-tier Tribunal for a fresh hearing. Credibility is at the core of this appeal. I therefore set aside the First-tier Tribunal's decision in its entirety and remit the matter to that Tribunal to remake the decision.

Notice of Decision

The Appellant's appeal is allowed to the extent that I set aside the decision of the First-tier Tribunal. I remit the matter to the First-tier Tribunal (not Judge Martins) for that Tribunal to remake the decision.

No anonymity direction is made.

Signed C E Roberts Date 16 August 2016

Upper Tribunal Deputy Judge Roberts