Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/03399/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 September 2016
On 23 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

T R
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Bandegani, Counsel instructed by Wimbledon Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Pakistan born on 3 October 1987. She last arrived in the United Kingdom on 28 March 2014 and claimed asylum on 3 July 2015. The basis of her claim was that a marriage had been arranged between her and her paternal cousin but she formed a relationship with a local man whom she married in January 2014. She then travelled to the United Kingdom and subsequently as a result of the marriage she gave birth to a child who was born on 21 August 2015. She claims that as a result of her marriage a fatwa has been issued against her and she feared if she returned to Pakistan that she would be killed either by her family or her paternal uncle's family for marrying her husband without permission and for having had a child with him.
2. Her asylum application was refused on 24 November 2015. The Appellant appealed against this decision and her appeal came before the First-tier Tribunal for hearing on 11 May 2015. In a decision and reasons promulgated on 1 June 2016, Judge of the First-tier Tribunal Swinnerton dismissed the appeal on the basis that he was not persuaded by the overall account of the Appellant and in relation to the fatwa he found that this was not credible because the Appellant was made aware of the claimed threats against her in May 2014 when she telephoned her parents and he did not accept that it would be more than a year later i.e. June 2015 that she contacted the friend in Pakistan and became aware that a fatwa had been issued [105].
3. At [111] the judge noted that the Appellant did not provide any original documentation in support of the claim and was not able to furnish the email providing the documentation which it is claimed was sent by her friend, Nila from Pakistan. As a consequence, the judge attached little weight to the fatwa and the other documentation.
4. Permission to appeal to the Upper Tribunal was sought on the basis that the judge had erred materially in law: firstly, in failing to take into account material evidence. This ground asserted that it would be clear from the Record of Proceedings the Appellant explained in examination-in-chief that the documents were initially sent by Nila via email. They were, however, sent a second time via email after they had been attested and a copy of the email correspondence confirming as much was introduced during examination-in-chief having been raised at the beginning of the hearing. The correspondence showed a chain of continuity from Pakistan including an auto signature from Akash Computers. The grounds further asserted that, whilst the documents were given little weight, the judge erred in failing to consider the form and contents of the documents nor make any assessment of those. The second ground asserted that the judge had materially misdirected himself in law in respect of his approach to the credibility and plausibility findings and, thirdly, that the judge had failed to take into account material evidence in relation to the risk on return to the Appellant as a lone woman, it being her case that her husband would not accompany her and her son if they had to return.
5. Permission to appeal was granted by Upper Tribunal Judge McWilliam on 11 August 2016 on the following basis:
"The grounds assert that there was evidence of an email from Nila [9] before the judge that he did not take into account (one email it seems was deleted, but the grounds make reference to another email). I accept this at face value because I have not seen a copy of the email referred to. I accept that if this is the case, arguable error arises because the main reason the judge attached little weight to the documentary evidence was that there was no evidence of an email from Nila. All grounds are arguable."
6. Prior to today's hearing Counsel for the Appellant at the First-tier Tribunal, Mr David Sellwood, provided a witness statement attaching the email chain and the attachments which were provided by the Appellant at the First-tier Tribunal hearing.
Hearing
7. At the hearing before me, the Appellant was represented by Mr Bandegani of Counsel and the Secretary of State by Mr Jarvis. Mr Jarvis accepted, having seen the witness statement and attachments by Mr Sellwood, that the judge had erred materially in law in that it is apparent from the Record of Proceedings that the Appellant gave evidence that the documents had emanated from her friend Nila but the email containing the documents had accidentally been deleted and the documents had then been re-communicated through the email chain attached to the statement of Mr Sellwood which was provided to the judge at the hearing. In light of this evidence Mr Jarvis accepted that the findings of the First-tier Tribunal Judge were unsustainable. Mr Bandegani did not have anything to add.
8. In light of Mr Jarvis's helpful concession, which with I agree, I find that the judge erred materially in law. The fatwa is a crucial document in the Appellant's claim that she would be at risk on return to Pakistan. An explanation was given as to how she came to receive a copy of the fatwa document and in fact had received it twice, the first email to which it was attached having been accidentally deleted. I accept the statement of Mr Sellwood that an explanation was given to the judge as to how the Appellant came to receive the copy fatwa. However the judge has not engaged either with the email chain process nor provided any reasons for not accepting or rejecting the substance of the documents including the fatwa that was sent by email from Pakistan.
Notice of Decision
9. For those reasons I set aside the decision of the First-tier Tribunal Judge and I remit the appeal for a hearing de novo at Hatton Cross Hearing Centre.

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

Deputy Upper Tribunal Judge Chapman