Tribunal decisions

The decision

IAC-BFD-MD-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10908/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 January 2017
On 6 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

M S I
(anonymity direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms S Saifolahi, Counsel.
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer.

DECISION AND REASONS

1. The Appellant is a citizen of Pakistan who entered the United Kingdom on 23 February 2011 as a Tier 4 Migrant and was granted leave until 31 October 2012. He was granted no further leave since then but on 31 October 2012 applied for leave to remain as a student; his application was refused: found on appeal to be not in accordance with the Immigration Rules, reconsidered and refused again on 25 August 2015. There was an issue between the parties as to whether there was a further Tier 4 application on 21 March 2014 as to whether the refusal dated 25 August 2015 was properly served. On 5 October 2015 the Appellant applied for leave to remain on the basis of family and private life; his application was refused on 29 February 2016 and certified so that he only had an out of country appeal.
2. On 8 April 2016 the Appellant claimed asylum based on his marriage to W J, a woman of the Ahmadi faith who has been recognised as a refugee in the United Kingdom. He claimed that he would be at risk of honour killing by her family and his were he to return to his country of origin.
3. The Respondent refused the Appellant's application. The Respondent did not accept the relationship between the Appellant and his wife to be a genuine and subsisting one or that they were married and had lived together for more than two years. It was also not accepted that there were very significant obstacles to the Appellant's reintegration in Pakistan or that there were exceptional circumstances justifying the grant of leave outside the Immigration Rules.
4. The Appellant appealed and following a hearing at Hatton Cross Judge of the First-tier Tribunal R Sullivan, in a decision promulgated on 2 December 2016, dismissed the Appellant's appeal.
5. The Appellant sought permission to appeal and in a decision dated 22 December 2016 Judge of the First-tier Tribunal Grant-Hutchison gave her reasons for allowing that application. They are:-
"The Appellant seeks permission in time to appeal against a decision of the First-tier Tribunal (Judge R Sullivan) promulgated on 2 December 2016 whereby it dismissed the Appellant's appeal against the Secretary of State's decision to refuse his application for asylum.
It is arguable that the Judge misdirected herself in law which could make a material difference to the outcome (a) by failing to consider that the Appellant as a Sunni Muslim by entering into a religious marriage with a woman of the Ahmadi faith who has refugee status in the UK as a result of her religion could be at risk of persecution by the Secretary of State on return to Pakistan because such a marriage contravenes paragraph 289C of the Pakistani Penal Code (reference is made to MN [2012] UKUT389); (b) by relying on her own personal knowledge in forming material conclusions on the Appellant's wife's faith; (c) although the Appellant's wife only has refugee status until 2 February 2017 it was not open to the Judge to suggest that she could relocate to Pakistan and continue her family life there and (d) by failing to apply anxious scrutiny to the facts and circumstances as a result".
6. Thus the appeal came before me today.
7. Ms Saifolahi relied on all four grounds of appeal albeit that she explained that ground one contained the "main issue" as to why the Appellant now sought permission to appeal. The nub of it is that the Judge failed to carry out an assessment of the exposure of the Appellant, if returned, to his country of origin to risk from the State consequent upon his interfaith marriage. In particular the impact on him from the "blasphemy laws". She referred me to paragraphs 3 and 6 of the Judge's decision which state:-
"3. The Appellant claimed asylum on 8 April 2016 based on his marriage to [WJ], a woman of the Ahmadi faith who has been recognised as a refugee in the United Kingdom. He says that he would be at risk of honour killing by her family and his.
6. The grounds of appeal allege that the Appellant is at real risk of persecution in Pakistan because his wife is an Ahmadi Muslim; he will be subjected to honour killing by his own family and has been threatened by his wife's family in the United Kingdom; his removal would breach Article 2, 3 and 8 of the 1950 Convention for the protection of Human Rights and Fundamental Freedoms ("the 1950 Convention")."
She argued that having there summarised the core claim of the Appellant the Judge had failed to take into account this central issue. She acknowledged in dealing with the other three grounds upon which she relied that were I to conclude that the Judge had materially erred in respect of ground one then they became redundant as her application would be for the case to be remitted back to the First-tier Tribunal for a de novo hearing albeit with some preserved findings.
8. Ms Ahmad referred me to the Appellant's Counsel's skeleton argument in the First-tier and argued that the Judge's findings could stand as by reason of the evidence the Appellant's wife will not be perceived as an Ahmadi in her country of origin. However, she acknowledged by me when asked where in the decision the Judge dealt with the issue of "interfaith marriage" she was unable to say that he had.
9. I find that this is a core issue of the Appellant's claim and impacts on its totality. The absence of consideration of it along with resulting findings amounts to a material error of law which affects the totality of the decisions in relation to whether or not the Appellant is at risk if returned to his country of origin.
10. However, by consent of both representatives I preserve the finding that the Appellant's wife is an Ahmadi and that both the Appellant and his wife are in a subsisting marriage.
11. For the reasons put forward by Ms Saifolahi there is no need for me to give any further consideration to the balance of grounds put forward seeking permission to appeal.

Notice of Decision

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside subject to the above mentioned preserved findings. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 of Practice Statement 7.2(b), before any Judge aside from Judge R Sullivan.

Signed Date 3 February 2017

Deputy Upper Tribunal Judge Appleyard

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 3 February 2017

Deputy Upper Tribunal Judge Appleyard