Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10111/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 December 2018
On 24 January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

miss l r
(ANONYMITY DIRECTION continued)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Sarkar, counsel instructed by Adam Bernard Solicitors
For the Respondent: Mr T Lindsay, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant, on or about 25 May 2017, made an application for protection as a refugee and/or on Humanitarian Protection grounds, which was refused by the Respondent on 2 August 2018. Her appeal against that decision came before First-tier Tribunal Judge L K Gibbs (the Judge) who, on 1 October 2018, dismissed the appeal on Convention and Protection grounds, as well as under the Rules, and on ECHR grounds.

2. Permission to appeal was sought on three grounds, but unrelated to the decisions under the Rules or on ECHR grounds permitted by First-tier Tribunal Judge Robertson on 31 October 2018, and perhaps the grant of permission reflects the limited time given to the consideration of permissions to appeal.

3. The Judge was faced with the interesting fact that the Appellant had previously made an asylum claim on a fear of retribution on return to Pakistan on the basis of her being unwilling to enter into a marriage her parents wished for her with a cousin. The situation had rather moved on, insofar as by the time the matter was being considered by the Judge in this appeal, the Appellant had a child. The issue was largely whether or not the child was illegitimate, or whether or not a wedding had taken place. The issue of risk on return had, to a degree, diverted to the issue of her father believing her to have had a relationship outside of wedlock, and 'if so' whether he would kill the Appellant and the child, or whether she could not find protection for them because of the real risk of honour killings being in fact accepted, or ignored, to a degree by the Government in Pakistan. A subsidiary argument, but not raising any further grounds, related to the risks that might be thought to arise under Articles 2 and 3 ECHR.

4. Despite the arguments of Mr Sarkar, it seemed to me that the Judge had to grapple with three principal problems: First, contradictory evidence as to whether or not the Appellant was married and the child was illegitimate; Secondly, the apparent lack of evidence to demonstrate that there had been an Islamic form of marriage performed and a marriage Nikah produced in the United Kingdom; and Thirdly, whether or not there really was a risk of the father of the Appellant taking action against his daughter as claimed, let alone dealing with the child.

5. I conclude that the Judge looked at the evidence in the round, took into account the apparent contradictions in the line that the Appellant was running. It was significant to that extent that the Judge dealt with the absence of the Nikah and did not reject the Appellant's claim as to why evidence had not been produced for the reasons she claimed.

6. Rather, it seemed to me for cogent reasons the Judge concluded that there had been a marriage in the UK and the birth of the child was the result of that marriage union. On the basis of what the Judge put to counsel and the registration of birth provisions then in being, it seemed to me the evidence was sufficient to discharge to that low standard of proof in asylum cases, that the child's birth had been registered, the father of the child had been registered, and that due process had been properly followed. It seemed to me very unlikely that the UK register of births was in error or that the Registrar's functions would have been neglected in the manner that is claimed. The reasoning why the Judge did not accept the assertions by the Appellant concerning the legitimacy of her child and the registration of the child was sufficient.

7. There was no evidence before the Judge, other than the Appellant and her brother's say-so, as to why they could not obtain a Nikah from the Iman at the mosque where the wedding had been celebrated. It also struck me as significant that there was no evidence whatsoever before the Judge from, for example, persons who attended the ceremony, witnesses at the ceremony, or its celebration after, or indeed anybody there who spoke to the issue of the existence of the marriage and the process that had been followed. On a fair reading of the decision I do not accept the criticisms that were made of the Judge in ground 3 that he had not put these issues and had not taken into account such arguments as were advanced.

8. As to the second ground, it is clear that the Judge did look at all the evidence. The Judge was not saying he would not consider the documents being provided because they came from the Appellant's brother. The Judge assessed the credibility of the Appellant's brother in the context that the Appellant's brother had previously been found to be unreliable in an earlier appeal before First-tier Tribunal Judge Miles. I conclude that the Judge did properly consider the weight that could be given to the documentation as a whole. He may have expressed himself, somewhat ambiguously, to suggest that he could not place any weight on documentation because it had been submitted on behalf of the Appellant in the manner expressed: Rather than simply saying he did not give weight to that documentary evidence, which was manifestly self-serving and of, as has been accepted, potentially dubious and unreliable production in Pakistan. It was not asserted that they are false documents or fraud has been used, so much as it is accepted that Pakistan may not be a reliable source of such documentation given the use of false documents, corruption and the production of false FIRs in order to bolster claims. Accordingly, I do not accept that ground 2 has any merit at all.

9. As to the first ground. The documents, produced for the appeal appeared to be self-serving, and to some extent it might be somewhat surprising that a lawyer acting for the Appellant's father, bearing in mind the claimed factual background, should disclose client/legal adviser confidential information simply through friendship with the Appellant's brother or, indeed possibly the Appellant. Whether that should have happened or is acceptable in terms of the standards of the Pakistan Bar, I do not speculate, but it seemed to me that both documents, C1 and C3, contained within the Appellant's bundle, raise considerable concerns about their real value as corroboration of the claim of the Appellant's father lodging a false FIR and taking legal advice as claimed.

10. It seemed to me that what the Judge was doing was assessing the Appellant's credibility and reliability of those documents as part of the whole; simply the format of writing up had necessarily dealt with the matter in the order that he wished, rather than simply, as might be taken on a narrow view, to have been reaching conclusions, per se, on the credibility of the Appellant and her witness, and therefore rejecting the documentary evidence. On a fair reading of the decision, the Judge carefully considered the claim as it developed and for the reasons adequately and sufficiently given addressed the decision in the decision why the appeal failed.

11. I find that the Original Tribunal made no material error of law in considering the Appellant's appeal.

NOTICE OF DECISION

12. The appeal is dismissed. The Original Tribunal's decision, dated 1 October 2018, stands.

13. An anonymity direction was made and it is continued.

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 her or any member of her 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.

TO THE RESPONDENT
FEE AWARD

The appeal has failed and therefore no fee award is appropriate.

Signed Date 9 January 2019

Deputy Upper Tribunal Judge Davey