Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04476/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 24 November 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

A H C
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Bellara, Counsel, instructed by JJ Law Chambers
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Pakistan who has remained illegally in the United Kingdom since 2002. On 11 August 2012 he applied for leave to remain outside the Immigration Rules which were refused. Following directions being set for his removal in March the appellant on 22 March 2016 applied for asylum. That application was refused on 29 April 2016.
2. The appellant sought to challenge that refusal, which appeal came before First-tier Tribunal Judge Hussain on 20 June 2016. The appeal was dismissed in all respects.
3. The appellant now seeks to challenge that decision as being one made in fundamental error of law. Leave to appeal was granted by Upper Tribunal Judge Rimington on 17 October 2016 on the basis that the Judge appeared to merely adopt the reasoning of the Secretary of State without further critical analysis and failing to evaluate the oral evidence of the appellant.
4. The matter comes before me to determine the issues as to the merit of that appeal.
5. It is the case of the appellant that his problems in Pakistan began in 1996 or 1997 after his marriage to his wife. His relatives were unhappy about the marriage as they wanted him to marry one within their family. He inherited some land from his grandfather jointly with his paternal uncle who refused to share the land with him. In August 2011 the police came to his house, took him away and beat him, detaining him for two months. They asked him to sign a document agreeing to hand over his land to the relatives but he refused to do so. Seemingly he was then charged with rape and taken to court. Because of his injuries he was taken to hospital from where he escaped and travelled to the United Kingdom. There is therefore violence both from family members and also from the police, there being currently an arrest warrant against him.
6. The appellant was interviewed about his claim. It was a fairly lengthy interview, having some 131 questions and answers. He indicated that following his beating he had had his hands broken which made working difficult and he was trying to get documents from Pakistan about the rape case. There was an attack on his house. When asked how it was that was connected to the land issue, he indicated that his wife had told him that she was receiving telephone calls asking her to tell him to give up the land.
7. The decision of 29 April 2016 is a very detailed one and summarises the appellant's case by reference to the interview. It was also noted currently there was an arrest warrant issued for his arrest, arising out of an answer to question 123. It was noted in particular that the appellant had not submitted any documents in support of his claim for asylum and the immigration history was noted.
8. The decision considered the account as given and clear reasons were set out for the respondent not to accept the various accounts that had been presented. In particular it was noted that no evidence had been presented to support the claim that he had inherited some land or that he was arrested in November 2011, nor any medical treatment, court appearance or arrest warrant. It was submitted that the lack of documentary evidence was damaging to credibility.
9. The decision also looked at sufficiency of protection and internal relocation among other matters. It also dealt with the private and family life and exceptional circumstances.
10. The Judge in the determination has set out the basis of the application and the nature of the evidence that was presented orally by the appellant at the hearing. At the outset of the hearing Counsel, representing the appellant, had made an application for an adjournment on the basis that the appellant was awaiting documents from Pakistan and had a witness arriving from Pakistan in the next seven days. It was considered that the appellant had had sufficient time to respond and deal with matters and accordingly the adjournment was refused. In reality the appellant has had many years to obtain the documents that he now seeks to acquire and in any event the hearing was on 20 June 2016, a month from the interview at which time the appellant had been represented. The issue of the adjournment was not a matter pursued before me.
11. The evidence of the appellant was set out and really differed very little from that which was set out in his interview. He claimed that he did not claim asylum in 2002 because he did not know about it. He was asked why he could not get the arrest warrant and replied that he had applied for it. He asked a friend to get it and send it to him. He was unable to provide medical evidence because he had run away from the hospital. He was able to get a copy of the FIR. He is still not sure of those who attacked his wife's house and he does not have any evidence of the attack because he does not speak to his wife. Seemingly since the fire she stopped talking to him and was staying with her parents but has no contact with him. He tried to obtain the FIR about two months previously saying that he was not advised to obtain it earlier by his solicitors.
12. As to the land he said that he owns ancestral property and did not want to give it up because he had nothing else other than that. Although he had been working in the UK doing gardening work he claimed that he could not get a job in Pakistan because of his injured hands. He claimed that he had been last threatened five or six years before.
13. In assessing the overall credibility of the appellant the Judge noted the delay in claiming asylum. This was also a linked to a wish expressed in August 2015 to voluntarily depart the United Kingdom, a request which had then be cancelled. The appellant denied making the request in the first place.
14. The Judge noted a number of passages in the reasons for refusal which challenged the credibility of the appellant. The Judge expressed agreement with the concerns as there expressed. For example, in paragraph 32 the Judge noted that the appellant had stated that his grandfather left him the land for himself and three of his own sons, whereas in interview that he had inherited the land from his grandfather and that his uncle was joint inheritor. The respondent said that such an inconsistency damaged credibility and the Judge agreed with that assessment. It was noted in particular that the appellant had provided no evidence to show that he had inherited the land.
15. The Secretary of State had highlighted an inconsistency in the appellant's evidence with regard to the position of those who reported an allegation of rape against him. The Judge agreed with that conclusion.
16. What is said in essence is that the Judge gave no independent assessment of what the appellant had to say but rather simply adopted wholesale what the respondent in her decision letter had to say about the matter.
17. I do not uphold that challenge. It seems to me it is entirely open to a Judge, having heard the evidence, to consider that what the Secretary of State had said about the account was to be taken into consideration. If the Judge agrees with the reasoning of the Secretary of State in the decision then it is open to the Judge to say so.
18. Of significance in this appeal is that it is not suggested that the Judge overlooked any material matter or difference in the oral evidence of the appellant that was not before the Secretary of State at the time of the decision. Sometimes of course the oral evidence is to give a further explanation to an answer given in interview or a comment made at interview. That does not arise in this case. Fundamentally the appellant was giving the same account as he gave to the Secretary of State and the Secretary of State had made comments about it which the Judge felt to be justified in all the circumstances.
19. I can find no basis to indicate that the Judge paid little regard to what the appellant had to say. It is clear that the Judge gave little weight to what the appellant had to say, given the credibility findings made adverse to the appellant on a number of occasions.
20. This is somebody who was illegally in the United Kingdom for many years and who could have claimed asylum particularly when in August 2012 he applied for leave to remain outside the Rules. If he had fear of returning that would have been an oblivious time in which to have expressed those fears, but he did not. It was only when directions were set for his removal that he finally sought asylum.
21. As to human rights, it is entirely clear that he does not meet the Immigration Rules and that there are no compelling circumstances outside his claim for asylum which would make his removal from the United Kingdom disproportionate.
22. It had been the view of the Secretary of State that protection was available to the appellant. Alternatively that internal relocation was properly open in all the circumstances. The Judge is entitled to agree with that conclusion or not, as the case may be.
23. Overall I find that the determination fairly set out the case for the appellant and explained with reasons why the Judge did not accept that case to be so.
24. No doubt if documentation is to be forthcoming that can be presented to the Secretary of State for consideration as to a fresh claim. In the absence of any documentation whatsoever in support of any aspect of the asylum claim, particularly in the light of the delay in claiming asylum, it is an entirely proper comment to make that the lack of documentation is significant.
25. Mr Jarvis who represents the appellant invited my attention to a decision of the Tribunal of TB (Credibility) Zimbabwe [2004] UKIAT 00159 in relying on paragraphs 10 and 11 thereof. In that case the appellant had claimed asylum only in the immediate aftermath of being apprehended by the police and it was considered in those circumstances it was entirely justified that the adjudicator found the claim to be wholly false without being required to look at the substance of the claim. It seems to me that jurisprudence has moved on since those days and there is a requirement of a holistic consideration of the evidence. Looking at the determination as a whole I find that that was done. No material element of evidence was overlooked or ignored.

Notice of Decision
26. In the circumstances therefore the appeal before me is dismissed. I uphold the decision of the First-tier Tribunal Judge. Thus the original decision shall stand, namely that the appeal on asylum grounds is dismissed as it is also on humanitarian protection grounds. The appeal in respect of human rights is also dismissed.
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 24 November 2016

Upper Tribunal Judge King TD