Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/03955/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 November 2016
On 9 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

WA
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Balroop, counsel instructed by 12 Bridge Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge M R Oliver, promulgated on 15 August 2016. Permission to appeal was granted by First-tier Tribunal Judge Garratt on 7 October 2016.

Anonymity
2. A direction has been made previously, and this is maintained.

Background
3. The appellant entered the United Kingdom on 14 December 2004 with leave to enter as a visitor. Nothing further was heard from the appellant until 24 March 2012 when he was encountered during an immigration raid and arrested as an overstayer. On 28 March 2012, the appellant unsuccessfully applied to remain in the United Kingdom on the basis of his Article 8 rights. A further application made on the same basis was refused on 22 August 2013. It would appear that the appellant absconded and he next came to light on 24 July 2015 when he was encountered during a second immigration raid. On 30 July 2015, the appellant applied for asylum.
4. The basis of the appellant's asylum claim stems from an argument he had in a village mosque with a mullah in 2003. Following that event, the appellant was wanted for blasphemy owing to his comments to the Mullah; his cousins were shot and his uncle killed. Two of those responsible were arrested and sentenced to imprisonment. Upon one of those men being released on bail, the appellant pursued him and shot him in the neck, killing him. The appellant left Pakistan some considerable time later, his departure being delayed by the refusal of his first application for entry clearance to the United Kingdom as a visitor.
5. The Secretary of State concluded that there was no Refugee Convention reason apparent from the facts of the appellant's case. The respondent rejected the appellant's claim owing to inconsistencies between and within his accounts, his ability to leave Pakistan in his own identity and his delay in seeking asylum despite having the opportunity to do so on two occasions. Even if his claim were accepted, the respondent was of the view that the appellant feared prosecution for a non-political crime rather than persecution and as such he fell to be excluded from protection under the refugee convention and from a grant of humanitarian protection. It was not accepted that prison conditions in Pakistan were persecutory or amounted to serious harm contrary to Article 3 ECHR.

The hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, the appellant denied that he had killed one of the individuals who had been jailed for the claimed attack on his relatives. He explained that he had been wrongly accused. He called two witnesses who confirmed that the appellant was wanted in his home area in Pakistan for murder. The judge noted the "twists and turns" to the appellant's story, his delay in seeking asylum and the unmeritorious Article 8 applications and dismissed his appeal on all grounds.

The grounds of appeal
7. The grounds of appeal in support of the application argue, essentially, that the judge was not entitled to express his opinion on the meaning of blasphemy in Pakistan; that the judge failed to refer to the totality of the evidence before him and make findings on it and the judge failed to make findings of fact on the substance of the claim.
8. Permission to appeal was granted on the basis sought, on all grounds.
9. The respondent's Rule 24 response, received on 20 October 2016, indicated that the Secretary of State was unable to agree that there was an error of law because she had not received the grounds of appeal. Complaint was made regarding this omission and it was said that a timely response to a grant of permission could only be provided under circumstances in which both the grounds of appeal and the determination were available to the respondent.

The hearing
10. As indicated above, Ms Isherwood had not had sight of the grounds of appeal. I therefore provided a spare copy of the same which was on the case file and gave her time to consider them. There was some discussion as to what objective evidence was before the judge. I indicated that there was a 37-page bundle on the file, whereas neither representative had any such item. From the outset, Ms Isherwood indicated that the respondent was in difficulty with regard to [28] of the decision owing to the fact that the judge found the appellant's claim to fear persecution because of suggesting that the prophet Mohammed died, to be implausible, while making no reference to the objective evidence regarding blasphemy which was before him.
11. Mr Balroop needed to say nothing further regarding [28] of the decision. He continued to rely on the grounds and submitted that at [29] the judge had referred to a single FIR in relation to subjective evidence, however there were a number of documents before the judge including more than one FIR, as well as an arrest warrant. Thirdly, Mr Balroop argued that the judge's finding, that the appellant had only complained of misinterpretation during the hearing, was unfair in view of the evidence before the judge regarding the complaint of the appellant's solicitors that the interview record was illegible. He submitted that the combination of these errors amounted to a material errors of law.
12. In reply, Ms Isherwood highlighted one or two credibility issues which she indicated were sustainable, however she accepted that the judge had referred to just one of the FIR's.
13. In closing, Mr Balroop asked me to note that the witness had mentioned, in his statement, that the appellant was suspected of blasphemy and thus the judge was wrong to rely on only the oral evidence of the witness.

Decision on error of law
14. At the end of the hearing, I announced that the First-tier Tribunal made material errors of law in this matter. My reasons are as follows.
15. The judge considered it implausible that the appellant would face a charge of blasphemy owing to his claimed views on the prophet. Indeed, at [28] the judge states, "The suggestion that the prophet died and is therefore not alive is hardly novel." The judge's views of Islamic doctrine were not supported by reference to any material before him. By contrast, the appellant sought to rely on a 37-page bundle which began with an article on Pakistan's blasphemy laws as well as mainstream international press articles on the plight of other individuals alleged to have been blasphemous. There was no mention of, let alone engagement with this material. This error, by itself, would not have amounted to sufficient reasons to justify setting aside the decision in view of the judge's adverse credibility findings.
16. The judge further erred in failing to have regard to the appellant's subjective material. The only document referred to by the judge appeared at [29], when he refers to "what his uncle stated in the FIR." Between pages 20-69 of the appellant's bundle were photocopies of a number of documents together with translations. While it is fair to say that there is no indexation of these items, which appear towards the rear of the appellant's bundle of evidence, a cursory glance reveals more than one FIR, more than one post-mortem report and a number of arrest warrants. Regardless of the view that was taken of the credibility of the appellant's claims, he was entitled to have the evidence he submitted assessed and considered in the round. Accordingly, the judge's failure to take into consideration the subjective and objective material before him, amounts to a material error of law.
17. It is necessary for the judge's findings to be set aside in their entirety because the negative credibility findings, in particular, were reached without consideration of the evidence relied upon by the appellant.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Hatton Cross, with a time estimate of 4 hours by any judge except First-tier Tribunal Judge M R Oliver

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

Upper Tribunal Judge Kamara