Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2023-004363
UI-2023-004364
First-tier Tribunal Nos: PA/54380/2021, IA/13099/2021
PA/54382/2021, IA/13089/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12 August 2024

Before

UPPER TRIBUNAL JUDGE FRANCES
UPPER TRIBUNAL JUDGE KAMARA

Between

J M
H M
(ANONYMITY ORDER MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms L Giovannetti KC and Mr D Seddon KC, instructed by Farani Taylor Solicitors
For the Respondent: Mr S Singh KC, instructed by Government Legal Department

Heard at Field House on 16 and 17 July 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court

DECISION AND REASONS
1. This decision should be read in conjunction with the decision dated 8 March 2024 in which the Upper Tribunal (UT) found that the First-tier Tribunal (FTT) had erred in law (Annex A). The FTT decision was set aside and the appellants’ appeals were allowed on humanitarian protection and human rights grounds. The appellants’ asylum appeals were adjourned to be re-heard by the UT. The FTT’s findings at [130 - 195] were set aside.
2. We shall refer to the first appellant as the appellant in this decision. It was accepted that any decision reached in relation to the first appellant would also stand in relation to the second appellant.
Agreed facts
3. The appellant is the son of IM who is alleged to have connections with the perpetrators of the Mumbai bomb blasts in 1993: Dawood Ibrahim (DI) and D-Company. Prior to his death in 2013, IM was not convicted of any criminal offence and an attempt to extradite him from the UK in 1995 was rejected.
4. On 5 October 2019, the Indian Directorate of Enforcement (ED) issued a summons against the appellant in relation to a criminal investigation under the Prevention of Money Laundering Act 2002. The appellant is accused of laundering the proceeds of IM’s alleged organised criminal activity from the 1980’s-1990’s. The appellant denies these allegations.
Issue
5. In our decision dated 8 March 2024, we found there was a real risk the appellant will be detained and ill-treated on return to India. Therefore, the remaining issue before us is whether there is a Convention reason for such ill-treatment.
6. We heard submissions from both parties and we were referred to numerous documents in the composite bundle (CB), electronic bundle (EB) and supplementary bundle (SB). We have considered all the evidence relied on, in particular those referred to specifically by counsel or referenced in their skeleton arguments.
Appellant’s case
7. It is the appellant’s case that his family is targeted by the Indian authorities because his deceased father, IM, a prominent Muslim businessman from Maharashtra, is alleged to have had connections to DI and his criminal organisation D-Company who perpetrated the 1993 Mumbai bomb blasts. From October 2019, the appellant has been the subject of a politically motivated criminal case of money laundering, involving abuses of process and attempts to link the political opposition to the appellant and D-Company.
8. The appellant puts his case on two separate and discrete grounds and submits that if he succeeds on ground 1, then ground 2 is not dispositive:
(i) Is there a real risk that, upon return, the ill-treatment the appellant will face in detention results, in part, from Convention reasons?
(ii) Is there a real risk that one of the motives for the prosecution of the appellant is a Convention reason, namely in order to promote the political and/or religious (and electoral) agenda of the BJP?
Respondent’s case
9. The respondent accepts there is no issue as to the law in this appeal. The appeal simply turns on whether, on the evidence, the appellant has proven that one reason for the treatment he fears is a Convention reason. It is the respondent’s case that there is no Convention reason, that is an ‘improper motive’, for the treatment the appellant fears. The respondent maintains the position adopted before the FTT that the only motive for the Indian authorities’ interest in the appellant is their concern that he may have been involved in laundering the proceeds of IM’s alleged crimes and that they are not motivated at all by his religion, any imputed political opinion or any other Convention ground.
10. The respondent does not challenge the appellant’s factual evidence as to matters directly within his knowledge. The respondent submits she does not need to rely on the substantive merits of the criminal proceedings against the appellant to argue that the Indian authorities are not improperly motivated. The burden is on the appellant to prove that there is an improper motive, which he has failed to do for the reasons given in the respondent’s written submissions before the FTT dated 8 June 2022 (RWS).
Relevant Law
11. In R (Sivakumar) v SSHD (HL) [2003] 1 WLR, the Court held:
“41. There is no rule that, if an applicant is to succeed, the decision-maker must be satisfied that the Convention reason was, or would be, the only reason for his persecution…. So long as the decision-maker is satisfied that one of the reasons why the persecutor ill-treated the applicant was a Convention reason and the applicant's reasonable fear relates to persecution for that reason, that will be sufficient.”
12. In Karanakaran v SSHD [2000] 3 All E.R. 449, the Court of Appeal held that a reasonable degree of likelihood equated to ‘a reasonable chance’, ’substantial grounds for thinking’ or ‘a serious possibility’. Brooke LJ stated at p.469-470:
“In the present public law context, where this country’s compliance with an international convention is in issue, the decision-maker is, in my judgment, not constrained by the rules of evidence that have been adopted in civil litigation, and is bound to take into account all material considerations when making its assessment about the future.
This approach does not entail the decision-maker (whether the Secretary of State or an adjudicator or the Immigration Appeal Tribunal itself) purporting to find ‘proved’ facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present).
For the reasons much more fully explained in the Australian cases, when considering whether there is a serious possibility of persecution for a Convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.”
Ground 1: Ill-treatment for a Convention reason
Appellant’s submission
13. Ms Giovanetti relied on the appellant’s skeleton argument dated 9 July 2024 and submitted the Convention reasons she would focus on in respect of ground 1 were religion and particular social group (PSG). The respondent accepted that membership of IM’s family is a PSG.
14. Ms Giovannetti submitted that the appellant would be detained on return and therefore vulnerable to a large number of individuals: police officers, prison guards and other prisoners. The test is a relatively low one: Is there a serious possibility that any one of those individuals will mistreat the appellant on account of his membership of a PSG or his Muslim religion. Ms Giovanetti submitted this was a very strong and compelling ground which should succeed even if the appellant was unable to show the prosecution was politically motivated.
15. Ms Giovanetti referred to the comprehensive extracts of updated country material bundle (CE) and submitted there was ample evidence that the appellant would suffer violence and ill-treatment by lower level officials because he is Muslim. There was evidence that such acts were not prevented and went unpunished. Having found the appellant would be detained and ill-treated, we only had to consider the narrow question of motivation.
16. Ms Giovanetti submitted there was clear evidence of violence against Muslims by the police. She referred to the BBC News report dated 17 June 2022: “The police brutality video which shocked India” and Professor B’s first expert report at [14] to [23]: “The relationship between Muslims and the police force in India” (EB 427-431). This section of the report explained why this difficult position had arisen, namely the demolition of the Babri Masjid mosque, followed by rioting and the Mumbai bomb blasts. Thereby giving rise to the second convention reason: PSG.
17. The appellant is a family member of someone accused of involvement in the Mumbai bomb blasts in 1993. The appellant’s father, IM, has been repeatedly accused by the government of India (GOI) of being involved in the Mumbai bomb blasts and Ms Giovanetti relied on Professor B’s report at [31] and [32] to demonstrate the impact these bombings had on the Indian psyche. The expert was of the opinion this was still a visceral issue which was supported by what had happened to the appellant in this case.
18. There was evidence in the appellant’s witness statement (EB 623) to show how the appellant’s family came into the ‘public eye’ as a result of property dealings with a National Congress Party (NCP) politician (P). In the course of the elections in 2019, the appellant’s family were used to link P with IM, D-Company and the Mumbai bomb blasts. This link was prominently reported by major news outlets including Republic TV on the basis P had a rental agreement with the second appellant (A2) which was equivalent to having links with DI and D-Company. This was an example of the strong public feeling against the appellant. P was summonsed and the BJP President at that time denounced the agreement with IM’s wife, A2, to be “nothing less than treason”.
19. The appellant stated that Prime Minister Modi, in a speech made three days before the election in October 2019 (with reference to the Mumbai bomb blasts, IM and the appellant’s family), stated that Congress and NCP politicians have been involved in “[illegal] business”. The appellant relies on widespread reporting on Republic TV and the production of documents by the network’s editor bearing the appellant’s name. In addition, there was an interview with Dr S who claims that since IM’s death in 2013, the appellant is in charge of IM’s businesses. The appellant stated he is filled with terror by Dr S’s statement at the end of the interview: “We have to get rid of these people”.
20. Ms Giovanetti asked us to watch video footage of the widespread news reporting set out in the appellant’s witness statement and summarised above. She submitted we should carry out a forensic assessment of the potential motivation of police officers, prison guards and prison inmates and whether they would be so outraged by the fervour stoked up against the appellant’s family. This was not something that could be excluded as not a serious possibility. The appellant had shown that one of the reasons for the ill-treatment he would suffer was a Convention reason.

Respondent’s submissions
21. Mr Singh relied on his skeleton argument dated 12 July 2024 and the RWS dated 8 June 2022. He submitted there was no Convention reason for the Indian authorities’ interest in the appellant. The only motive is a legitimate concern that the appellant is involved in laundering money from IM’s crimes.
22. In respect of ground 1, Mr Singh urged us to be cautious, given the broader context of media reporting in India, about drawing conclusions from news reports and about what impact the news articles had on the minds of those in India. Mr Singh submitted we should not draw an inference of the public mood from a select number of articles and it could not be said that those in detention with the appellant will be adversely motivated because of the media reporting.
23. Mr Singh referred to [79] RWS and relied on the ‘CPIN: religious minorities and scheduled castes and tribes, India’ dated 30 April 2024 which dealt with the societal treatment of Muslims. He submitted, in general, Muslims were not at risk because of their religion and this reason in itself did not give rise to any risk. There were 220 million Muslims in India and adverse incidents affected a few hundred. It was not possible to draw a general conclusion based on the country background material. Mr Singh submitted the appellant’s submissions had to be put into context when considering the incidents of violence against Muslims and we should not draw broader conclusions about a political party, country or religion from statements made by politicians. He submitted there was no real evidence that Muslims in detention were at risk from being Muslim.
24. When considering the police problems with Muslims in Maharashtra, Mr Singh submitted we should place little weight on Professor B’s report because he had not carried out any field work since the 1997. It was too speculative to say the appellant’s membership of a PSG would give rise to a real risk because it was not possible to know what the effect of being IM’s son had on the general population. Against the context of many thousands of media sources in India, the appellant’s reliance on selective newspaper articles to support his submission that there was strong public feeling against his family was not substantiated.
25. In addressing the appellant’s evidence in his witness statement, Mr Singh submitted there was nothing improper about the BJP spokesman raising an indirect association between P and the appellant’s family to show a potential connection between a politician and DI. It was not appropriate to draw any conclusions from this about what the public would think about the appellant. Nor did the view of Dr S, a politician in isolation, represent the view of the public or the Prime Minister.
26. Mr Singh submitted the allegations that the BJP controlled the ED came from the political opposition charged with offences. There was sufficient evidence for the ED to have a legitimate suspicion that the appellant was involved in money laundering. Mr Singh submitted little weight should be attached to the addendum report of Dr A which was not relied on by the appellant in his skeleton argument or in submissions. He submitted Dr A acted as a fact finder, whose sources were unclear and Dr A indulged in speculation, often straying far from the role of an expert.
27. In considering the other evidence in the SB produced for this hearing, Mr Singh submitted little weight should be placed on the shooting of a leading underworld figure, the gangster killed by a rival gang in prison, ethnic clashes in Leicester and the uncorroborated allegations that the GOI targeted Sikh separatists abroad and ordered killings in Pakistan. It was not the case that the Indian authorities did not comply with the Rule of Law.
28. Mr Singh submitted the CPIN ‘India: Political parties and affiliation’ dated December 2023, a BBC news report and an Al Jazeera news report, both dated 5 June 2024. He submitted political opponents were not generally at risk and there had been a huge comeback for the opposition in recent elections which demonstrated India abides by the Rule of law and has a record of a competitive democracy.
Appellant’s response
29. Ms Giovanetti accepted that the issue in this case was not about Muslims generally. It was specific to the appellant and whether his religion was a reason for the ill-treatment he would suffer. There was a wealth of country material which showed increasing hostility towards Muslims over recent years and Maharashtra was a state where there had been problems between the police and the Muslim population.
30. In relation to Professor B, he had the relevant expertise to comment on the situation in Maharashtra because he not only conducted field research prior to 1997, but also in 2012 and 2017/2018, and he was a visiting professor in that area. Ms Giovanetti submitted Muslims faced a heightened risk from the police in Maharashtra. The appellant was at heightened risk because of IM’s alleged involvement in the Mumbai bomb blasts. In addition, there was the widespread media coverage which was increasing the notoriety of the appellant and directing increased hostility towards the appellant’s family.
31. Ms Giovanetti accepted the depth and breadth of media sources in India and that other items of news would have been covered at the time the appellant was also in the media. However, there was widespread reporting about the appellant in 2019. The appellant was not relying on niche publications but a variety of sources and main stream outlets. Republic TV is the largest network and commands a substantial share of the market.
32. Whether the appellant would receive a fair trial was not in issue. The question was whether the reporting was likely to have stoked up adverse feelings against the appellant. This criticism was not only levelled at journalistic commentary but also at BJP politicians such as the BJP spokesperson, the BJP President and Home Secretary and Prime Minister Modi.
33. Ms Giovanetti submitted the appellant was convinced his father, IM, was innocent. The respondent’s position was that the appellant did not have knowledge of IM’s alleged involvement with DI. The appellant’s parents separated when he was very young and he only got to know IM when he came to the UK as a student. IM was never convicted of a criminal offence and he was not wanted in relation to any terrorist case. IM accepted in an interview with the Observer that he had met DI socially but, Ms Giovanetti submitted this was a slim basis for believing that IM was involved in a terrorist outrage. It was irrelevant whether IM was guilty of the allegations made against him because the Refugee Convention protected the appellant and his family put at risk because of their relationship with IM.
34. Ms Giovanetti concluded by stating it was not the motivation of the media or politicians which was in issue but simply whether the connection repeatedly drawn between the appellant, who is a Muslim charged with money laundering in Maharashtra, and the Mumbai bomb blasts through IM’s alleged involvement with DI and D-Company would put him at risk on return. The point was a narrow one, discrete from ground 2 and dispositive of this appeal.
Ground 1: Findings and conclusions
35. We have summarised the submissions made by the parties in the paragraphs above and we will deal with any additional points made within our findings and conclusions below.
36. We accept Ms Giovanetti submissions that the appellant does not have to show that IM was persecuted for a Convention reason (Fornah [2007] 1 AC 412 (HL)) and whether the GOI had grounds to suspect IM of involvement in the Mumbai bombings is not relevant to ground 1. We also find the substantive merits of the criminal proceedings against the appellant is not relevant to ground 1.
37. We conclude that having found the appellant will be ill-treated on return the issue of sufficiency of protection falls away. We reviewed the New Indian Express report of 6 June 2024: “1993 Mumbai bomb blast accused beaten to death” (CE 31) in the context of the evidence as a whole and we are not persuaded that the appellant’s relationship with IM could be a protective factor. There was insufficient evidence to support the respondent’s submission.
38. There is evidence in the background material from numerous different sources which show that there is increasing violence against the 220 million Muslim minority. For example, there has been an increase in hate speech events in Maharashtra which has led to an increase in communal tension and violence inflicting considerable harm upon the Muslim community. Mumbai and adjoining cities in Maharashtra witnessed 50 anti-Muslim hate rallies in the first four months of 2023, often led and participated in by the leaders of the BJP. Government officials, political leaders and supporters of the BJP advocated hatred and violence against religious minorities with impunity, in particular Muslims.
39. There is evidence that the police are involved in serious violence and act in a climate of impunity. In June 2022, BBC news reported that a video showing Indian police beating a group of Muslim detainees had been viewed by millions after it was shared by an elected member of the ruling BJP party who praised their brutal actions. No action was taken against the officers involved.
40. There is evidence that those involved in the Mumbai bomb blasts are still at risk in 2024 when one of the men convicted of the 1993 Mumbai bombings was beaten to death by five inmates in the Kalamba Central Jail, Kolhapur. A FIR has been filed and police are investigating the matter.
41. We find that Professor B has the necessary expertise and specific knowledge of Maharashtra having carried out field work prior to 1997 and in 2012 and 2017/2018 and as a visiting professor in that state. Professor B was in Mumbai in 1993 during the riots and the bomb blasts and we note his observations at [51] of his second report (EB 31-32) and his conclusion at [61] (EB 34). We attach weight to his reports in particular the sections on the relationship between Muslims and the police force in India and the enduring significance of the 1993 Mumbai bomb blasts.
42. We attach little weight to the report of Dr A, which was not relied on by the appellant, for the reasons given by the respondent.
43. We find that the Mumbai bomb blasts remain a critical event in public debates in India. Over the last 25 years, DI and D-Company have been a constant presence in debates about national security. We attach weight to Professor B’s opinion that:
“The allegations pertaining to [IM’s] role as a ﬁnancier of [DI] therefore tapped into a very large and well-established history of reporting and rumors around the ‘D company’ and its alleged tentacles stretching deep into the Muslim community in Mumbai and elsewhere, and into business circles and political networks throughout India.”
44. There is ample evidence in the CB, EB and SB to support Professor B’s opinion that the appellant will be linked to the Mumbai bomb blasts, DI and D-Company through his father, IM. The widespread media coverage and reports in 2019 linking the appellant to IM’s businesses and the allegation that IM was part of D-Company demonstrate the level of ill-feeling towards the appellant. There was insufficient evidence in the background material and further evidence submitted by the respondent at the hearing to show that the situation had changed since the elections in 2024.
45. The appellant’s evidence in his witness statement is supported by the background material, expert evidence and video footage of reporting by Republic TV which is one of the major networks in India. The reports relied on by the appellant come from a variety of sources including Human Rights Watch, Amnesty International, the BBC, the UK press, the American press and news network and the respondent’s CPIN dated 30 April 2024.
46. Having considered all the evidence in the round, we are persuaded by Mr Singh’s submission that Muslims in general are not at risk in India. However, we agree with Ms Giovanetti that we have to consider the particular circumstances of the appellant. We find there is a serious possibility the appellant will be at risk as the son of IM and he will be at a heightened risk from the police in Maharashtra because he is Muslim.
47. We find that the appellant will be well-known throughout India because of the widespread reporting and the repeated allegations that his father, IM, was involved with DI and D-company who perpetrated the Mumbai bomb blasts. We find there is a reasonable degree of likelihood of strong public feeling against the appellant on return on account of his membership of a PSG.
48. We conclude, on the totality of the evidence, that the appellant has established a serious possibility that he fears persecution for a Convention reason. This finding is dispositive of the appeal and it is not necessary to consider ground 2.

Notice of decision
Appeal allowed.

J Frances

Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 July 2024