Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003437

First-tier Tribunal No: HU/07816/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7 March 2025

Before

UPPER TRIBUNAL JUDGE REEDS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M A
(ANONYMITY ORDER continued)
Respondent

Representation:
For the Appellant: Mr M. Diwnycz, Senior Presenting Officer
For the Respondent: Ms L. Mair, Counsel instructed on behalf of the respondent

Heard at IAC on 9 December 2024

DECISION AND REASONS

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, MA and any member of his family is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the MA, likely to lead members of the public to identify MA or members of his family. Failure to comply with this order could amount to a contempt of court.

1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal (Judge Turner) (hereinafter referred to as the “Judge”) who allowed the appeal against the decision made to refuse his protection and human rights claim made in the context of his deportation in a decision promulgated on 12 June 2024.
2. At an earlier stage in the proceedings the Judge made an anonymity order as set out in the decision and as agreed between the parties and as explained at paragraph 5 . The Judge was satisfied that it was appropriate to make such an order because the interests of the minor child outweighed the public interest in open justice. Neither party made any submissions during the hearing for the order to be discharged. The anonymity order is detailed above.
3. Although the appellant in these proceedings is the Secretary of State, for convenience I will refer to the Secretary of State for the Home Department as the respondent and to the appellant before the FtT as “the appellant,” thus reflecting their positions before the First-tier Tribunal.
4. The issue raised in this appeal is whether the decision of the Judge demonstrates a material error of law in the assessment undertaken of the relevant law and the evidence whereby the Judge allowed the appeal in the context of his protection claim under article 3 of the ECHR.
5. It is relevant to note that the Judge upheld the certification of the protection claim applying section 72 of the Nationality, Immigration and Asylum Act 2002 and thus it is common ground between the parties that the appellant was therefore excluded from protection under the Refugee Convention. That has not been challenged in these proceedings. Whilst the appellant fell within the definition of a “foreign criminal” by reason of his offending whilst in the UK and because he is not a British Citizen, Parliament has stated that an Exception to deportation applies where removal of the foreign criminal in pursuance of the deportation order would breach—(a) a person's Convention rights. For the purposes of section 33(2)(a), by section 38(4)(b), "Convention rights" has the same meaning as in the ECHR. The right relied upon by the appellant in this appeal, is that found in article 3 which provides, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
The background:
6. The background to the appeal is set out in the evidence and in the decision of the Judge between paragraphs 8 -13 of the decision and as set out in the skeleton argument that was relied upon by the appellant before the First-tier Tribunal. The Judge recited the appellant’s immigration history which had not been in dispute as follows.
7. The appellant is a citizen of Pakistan. He entered the UK on 2 June 2010 with leave as a spouse. Following his arrival he lived with his wife, and they had a child together. The relationship broke down after an incident of domestic violence for which the appellant states he was convicted of assault (battery) and was made to pay a fine and a victim surcharge (circumstances are set out at paragraph 27 of first witness statement (p60 bundle 1).
8. The appellant and his wife divorced in 2018. The appellant was granted further leave to remain in the UK on account of his ongoing relationship with his son who is a British citizen.
9. On 13 July 2020 the appellant was sentenced for 2 sets of offences, including sexual assault and assault by beating upon emergency service workers (one occurring on 17 January 2020 and 30 March 2020) appellant pleaded guilty to those offences and was sentenced to a total period of 12 months imprisonment in total. The circumstances of those offences are set out in the sentencing remarks which are recorded in the decision letter of 22 March 2023 at paragraph 37. The 2nd set of offences were committed whilst on bail for the 1st set of offences. The judge set out the aggravating features which included that the people concerned with carrying out a public duty in a confined space and that a number of people were assaulted, that the appellant was heavily intoxicated at the time and that he had a previous conviction for battery in 2017. Reference was also made to the appellant having recent difficulties and that he was drinking more than he should.
10. As a result of his offending the appellant was served with the decision to deport him which he failed to respond to, and a stage 2 deportation decision was served on the appellant on 26 August 2020 which the appellant did not appeal. The appellant raised submissions on 23 September 2020. However on 2 December 2022 the appellant was convicted of a further criminal offence for sexual assault of a female child under 13 for which he was sentenced to one year imprisonment and ordered to signed the sex offenders register for 10 years.
11. It was as a result of this conviction that the respondent made the 2nd decision under appeal in relation to the appellant’s human rights. As the documents set out, there were a number of decisions made by the Secretary of State in relation to this appellant’s deportation. The appellant appealed the decision dated 30 September 2020 to refuse his human rights claim in the context of his further submissions to revoke the deportation order which was made against him on 25 August 2020. There followed a supplementary decision dated 22 March 2023( p126 CeF bundle 3) which set out the circumstances of the further offending in December 2022.
12. Following this further representations were sent on his behalf in a letter dated 15 May 2023 (p662AB ;p157 Bundle 3 Cef) which enclosed the report of a psychiatrist Dr Falkowski dated 25 April 2023 ( see p141 Cef bundle 3). The letter raised a new issue regarding MA having a diagnosis of alcohol dependency syndrome. The letter set out that although, Dr Falkowski states that MA may seek out help for this condition in Pakistan, under section 4 of the Prohibition (Enforcement Of Hadd) Order 1979, owning or possessing alcohol is illegal for Muslims in Pakistan. Therefore, MA would need to admit to committing a criminal offence when seeking out treatment. The punishment for this offence is imprisonment and that it is well-known that prison conditions are inhuman and degrading in Pakistan relying on country evidence as cited. On the basis of the above stated submissions MA raised a claim for asylum, humanitarian protection and a human rights claim under article 3 ECHR on that basis. This led to the supplementary decision to refuse his protection, and human rights claim on 14 July 2023 which considered the claim as it was raised in the context of those particular submissions.
13. There were amended appeal skeleton arguments f(known within the First-tier procedure as “ASA”) filed on behalf of the appellant and one which replaced all others in May 2024. It does not appear that there was any direction made for the respondent to carry out any respondent’s review ( as set out in the First-tier Tribunal procedure under the reform project) in answer to the amended skeleton argument. The decision letter of July 2023 only addressed the written matters set out in the submissions sent in a letter dated 15 May 2023.
14. The hearing of the appeal came before the Judge in June 2024. In that decision the Judge summarised the case as advanced on behalf of the appellant. In relation to the article 8 claim, it was stated that he had a genuine subsisting relationship with his child and whilst he had not had contact with him since his last custodial sentence he wished to reinstate contact once he was able to re-establish communication with his ex-wife. Thus it was submitted to satisfied Exception 2 (S117C(5)) on the basis of his relationship and that it would be unduly harsh for his son if he was deported. In addition due to the cumulative factors that were raised there were “very compelling circumstances” which were sufficient cumulatively to meet the test under S117C(6)( see paragraph 10 of the Judge’s decision).
15. At paragraph 11, the Judge set out the claim made that the appellant also qualify for asylum or in the alternative the decision to remove the appellant Pakistan would breach the U.K.’s obligations under article 3 of the ECHR based on the appellant’s alcohol dependency and that despite undergoing detoxification programs in custody and upon release, he is susceptible to relapse. It is illegal to consume alcohol in Pakistan and such behaviour result in criminal prosecution and imprisonment. The Judge set out the appellant relied on objective evidence regarding poor prison conditions in Pakistan together with evidence of the societal treatment that he was facing in Pakistan. The Judge recorded that the appellant’s case was that he would not be afforded support by his family the cultural and social reasons and would not permit him to reside in the family home whilst consuming alcohol.
16. The Judge also summarised the decision letter between paragraphs 12 and 13. In relation to the article 8 claim, it was recorded that there was a lack of evidence to support the assertion that he had a genuine and subsisting relationship with his son and that the appellant had no partner for the purposes of section 117C (5). As to section 117C (4) and the private life Exception, the appellant had not been in the UK for most of his life, nor was he integrated in the UK. It was not accepted that they were “very compelling circumstances” in his case nor that there were any “exceptional circumstances” which would warrant the revocation of the deportation order.
17. As to the protection claim, the respondent had certified the appellant’s claim under section 72 of the 2002 Act, imposing a rebuttable presumption that the appellant posed a danger to the community. That was an assessment carried out in a separate document. In addition it was not accepted that the appellant’s claim fell within a Convention reason as alcoholics in Pakistan do not form a particular social group. Reference was made in the decision letter of 14 July 2023, to a response to a country origin information service request, Pakistan: alcoholism, June 2023 setting out country conditions. It was accepted that members of the Muslim population Pakistan found to be consuming alcohol can face imprisonment with/ or a fine. The evidence indicates alcohol consumption amongst the Muslim population is widespread. The evidence also noted the availability of established support groups in Pakistan. Reference was made to the psychiatric report which demonstrated that the appellant abstained from alcohol since 20 June 2022 until the date of the report in April 2023. Judge also recorded that,” the respondent also noted that the appellant’s mental health conditions were controlled by prescribed medication which objective evidence indicates is available in Pakistan”.
18. Having set out that brief summary the Judge later identified the issues to be determined ( see paragraph 21) as follows:
a. Has the Appellant successfully rebutted the presumption of dangerousness as per the certification under section 72 of the 2002 Act? The Appellant’s offences were already deemed ‘serious’ (a sentence of 12 months or more having been imposed) given that they post-dated the NABA 2022. Ms Mair accepted that there was limited evidence of rehabilitation for these purposes, save for the word of the Appellant.
b. If rebutted, does the Appellant protection claim fall for a Convention reason? Do alcoholics in Pakistan form a particular social group? Ms Mair conceded that both limbs must be considered on the balance of probabilities as per the provisions of section 32 of NABA 2022, again subject to JCK.
c. Does the Appellant have a well-founded fear of persecution on return to Pakistan?
d. In the alternatively, will the decision to deport the Appellant breach his rights under article 3 ECHR? This must be proven to the lower standard.
e. Does the Appellant satisfy the exception to deportation as per section 117C(5) of the 2002 Act in relation to the Appellant’s claimed relationship with his son? Ms Mair did not strongly pursue this point, noting the evidence that the Appellant had not had contact with his son for over two years.
f. Are there compelling reasons why the Appellant should not be deported, as per section 117C(6)
19. The Judge’s findings on the primary facts begin with consideration of the section 72 certification between paragraphs 26 – 36. There was no issue between the parties that someone who had been sentenced to a period of 12 months or more in prison was considered to have committed serious offences. These were identified and the issue related to whether the appellant is a danger to the community. For the reasons set out between those paragraphs the Judge concluded that the appellant had not rebutted the presumption that he was a danger to the public and therefore the asylum claim remained certified. Thus having upheld the certificate, the appellant’s asylum claim must be dismissed by operation of section 72 (10). The assessment of the section 72 certification is not challenged by the appellant during these proceedings, and I will return to them in the analysis as they have form part of the arguments advanced on behalf of the appellant relevant to the issues of article 3 of the ECHR.
20. Dealing with article 3 of the ECHR, the Judge set out of whether the decision to deport the appellant to Pakistan would breach the U.K.’s obligations under article 3 between paragraphs 38 – 49. For the reasons that the Judge gave she concluded that there was “sufficient evidence to show the lower standard, that the appellant would face inhuman or degrading treatment on return to Pakistan as a result of a highly likely criminal prosecution and imprisonment for his uncontrollable alcohol consumption. As such, to returning to Pakistan would breach the U.K.’s obligations under article 3 of the ECHR.”
21. Having allowed the appeal on article 3 the Judge recorded that she was not required to go on to consider any arguments in relation to article 8 ( see paragraph 50) and between paragraphs 51 – 54 set out that she did not find there were any “exceptional circumstances” that would warrant the revocation of the deportation order. The Judge therefore allowed the appeal on the ground that the decision of the respondent was unlawful under section 6 of the Human Rights Act 1998 as being contrary to the appellant’s right not to be subjected to torture or to inhumane or degrading treatment or punishment under article 3 of the ECHR.
The hearing before the Upper Tribunal:
22. The respondent sought permission to appeal which was refused by a Judge of the FTT but on renewal was granted by a Judge of the Upper Tribunal on 21 August 2024 for the following reasons:
“The grounds raise a series of concerns under the general banner of a failure to give reasons for findings on material matters or making a material misdirection of law. It is arguable that there was a lack of consideration of the family support available to the appellant, the existence of the Lahore branch of the Islamabad Rehab and Caring Centre and that there was an absence of evidence that the conditions in prisons in Pakistan, in general, would breach the appellant’s Article 3 rights. Permission is not refused on any ground”.
23. At the hearing before the Upper Tribunal, the respondent was represented by Mr M. Diwnycz, Senior Presenting Officer and Ms L. Mair of Counsel appeared on behalf of the appellant. The purposes of the hearing there was a bundle of documentation which was separated into 3 parts due to their size; Part 1 consisted of 149 pages, bundle 2 consisted of 356 pages and bundle 389 pages. In the analysis of the appeal the page numbers refer to those on the electronic file file(known as the CE File) and do not correspond to the pages in the bundle. Ms Mair also helpfully provided a copy of the skeleton argument which had not been put in the original bundles, and she had also prepared a rule 24 response dated 25 October 2024. Those documents are a matter of record.
24. Both advocates also provided their oral submissions. Those provided by Mr Diwnycz can be summarised briefly as follows. He submitted that the respondent relied on the principle that the appellant could not rely on a causative action which arose as a defence to rebut the validity of him being returned. In essence he submitted that the appellant was required to comply with the law in Pakistan and that whilst it might be difficult it was not open to him to say that he would drink and thus end up in prison.
25. Mr Diwnycz relied upon the written grounds of challenge and under the rubric of the failure to give adequate reasons for making a material misdirection in law and inadequate/no findings on material matters and making a material misdirection of law. The written grounds challenged the article 3 assessment, and he sought to rely upon those grounds.
26. In response to the Rule 24 (paragraph 10) he submitted that as the grounds set out there was no freestanding reference to the Islamabad rehabilitation and caring Centre in Lahore which was in the respondent’s request for information report and also had been referred to in the decision letter. He further submitted that whilst the Judge referred to the medical basis of the appellant being alcohol dependent, the argument could not succeed because the availability of alcohol would be less common than in the UK and whilst it might be available underground the issue was regardless of the availability of alcohol it is still the appellant’s behaviour which is an issue and is required to take responsibility for his behaviour.
27. Mr Diwnycz referred to the availability of support and care available to him on return to Pakistan as set out in the documents relied upon by the respondent and referred to in the grounds. He submitted that it was a matter for the appellant to comply with the law and he should change his behaviour and would be able to do so. It is the appellant’s behaviour which results in him coming to the attention of the authorities. He submitted that he could change his behaviour on return to Pakistan.
28. Ms Mair on behalf of the appellant relied upon her rule 24 response dated the 25 October 2024. In her oral submissions she referred to the written grounds of challenge and that the point she sought to advance was that the case appeared to be argued differently and that the respondent had set out the general country evidence which demonstrated that the possession of alcohol for Muslims is banned in Pakistan and that anyone found in possession faced a real risk of arrest and imprisonment. She submitted that the correct test was whether the appellant faced a real risk of article 3 mistreatment rather than others who share his characteristics. The Judge was required to determine the risk to the individual.
29. Ms Mair submitted that the respondent now sought to argue in the written grounds and in the oral submissions that the error the Judge made was not considering the alcohol would be less available to the appellant, and that the original argument raised by the respondent relied upon the evidence that alcohol was widely available. Furthermore the oral submission that the appellant can mitigate his own risk by changing his behaviour was not raised as was a behavioural issue in light of the appellant’s diagnosis of alcohol dependence syndrome ( see report of the psychiatrist).
30. As to the issue raised about the availability of the support groups and whether that was sufficient for the appellant she submitted that this had been argued before the Judge, but the Judge had given adequate reasons. In this respect at paragraph 38, the Judge recorded the appellant’s claim that despite his efforts to engage with alcohol services he could not abstain from alcohol consumption and that this was consistent with the diagnosis of alcohol dependency syndrome as noted within the appellant’s records and confirmed in the report. Ms Mair in her submissions referred to what she described as the “tension” in the respondent’s case as evidenced by the way section 72 certification assessment was approached and that he had not accessed services and that he was a danger to the public because he could not control his drinking. The Judge accepted those submissions and upheld the certificate. However as the Judge set out at paragraph 39 the respondent submitted that the appellant continued to drink alcohol and thus formed the basis which maintained the position that the appellant was an ongoing risk to the public which she had accepted but that the respondent appeared to “reverse the argument in relation to the claim in relation to article 3.” The Judge referred to the evidence relied upon by the respondent and the submissions made and then the Judge set out his recent dispersal to a different area where he claimed he could not access services in the community. The Judge rejected his claim but found that it supported the proposition that the appellant lacked motivation or interest to deal with his condition whether in the UK or on his return (see paragraph 39). The Judge also addressed support at paragraph 40, and at paragraph 41 that it was the divorce that had triggered the issue with alcohol. Paragraph 42 referred to the psychiatric evidence, which the Judge was entitled to attach weight to and the respondent did not dispute that the psychiatrist had the requisite experience. At paragraph 44 were the overall findings made by the Judge and there is no material error of law in relation to the overall finding reached as to risk on return.
31. Ms Mair referred to the country evidence cited by both parties. In relation to paragraph 46 and the Human Rights Watch report, the content of the report referred to a Judgement from the Islamabad High Court and the general conclusions reached. It was open to the Judge to accept that report (see paragraph 48). Ms Mair submitted that whilst the respondent had submitted that medical assistance was available in Pakistan and antidepressant medication the Judge found that there was a real risk that he would drink on return and be arrested and there would be additional breach to not receiving antidepressant medication. She submitted that the respondent did not answer the point made in the HRW report that the medication would not be available to him in prison.
32. She submitted that there was sufficient evidence to support the finding that he would suffer inhuman and degrading treatment as a result of a highly likely criminal prosecution and imprisonment for his uncontrollable alcohol consumption.
33. Reference was made to the support that he had previously received in United Kingdom for his alcohol dependency that his behaviour escalated to a level of concern (see paragraphs 30 and 31) and the Judge set out his lack of motivation rather than lack of facilities.
34. Ms Mair submitted that taking the section 72 findings and the article 3 findings they underpin the conclusion that it would leave the appellant to consume alcohol where respondent accepted Muslims face a real risk of imprisonment and that the conditions would breach article 3 of the ECHR and there had been no action to change those conditions and that in prison he would not be able to access treatment or medication. This is contrary to the submissions made by Mr Diwnycz it was not a behavioural issue or 1 of choice but relied on the medical evidence and his pattern of behaviour including stress the Judge was entitled to father was a real risk of article 3 being breached.
35. In reply to the submission made that the respondent had criticised the support available, and that the appellant chose not to have the motivation either in Pakistan or in the UK to access support, Mr Diwnycz submitted that the appellant was responsible for his behaviour and not the state and that this is a “Robinson obvious” point of general applicability and was a principle that the Judge ought to have been aware of.
Discussion and analysis:
36. At the outset I remind myself of the need for appropriate judicial restraint in the Upper Tribunal before interfering with a decision of the First-tier Tribunal. The need for such restraint has been made clear on numerous occasions over recent years. There is no requirement for reasons for reasons and I am not looking for a perfect, or even the best possible, decision, I am concerned with whether the respondent can identify errors of law which could have had a material effect on the outcome and have been properly raised in these proceedings. In Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136 at paragraph 85 Carr LJ (as she then was) summarised some of the circumstances in which appellate interference with findings of fact might still be justified. They include:
i) Where the trial Judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;
[...]
iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.
She continued:
86. An evaluation of the facts is often a matter of degree upon which different Judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the Judge was wrong by reason of some identifiable flaw in the trial Judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.
37. Where an appellate court is satisfied that there is a material error of law, the decision will be set aside. This includes in relation to a Judge's evaluation of the evidence: MAH (Egypt) v SSHD [2023] EWCA Civ 216 at [68]-[70] (Singh LJ). Further, if a point of evidence of significance has been ignored or misunderstood, that may be a failure to take into account a material consideration.
38. I have had the benefit of hearing and considering the submissions advanced by each of the parties and have considered them in the context of the grounds advanced, the evidence before the Judge and the issues in play. I express my gratitude to the advocates for the assistance they have both given to the tribunal.
39. Turning to the grounds, they are not a model of clarity as highlighted by Ms Mair in her oral submissions. The grounds overlap and have to be read with each other. Nonetheless it is possible to discern the main points advanced on behalf of the respondent and Ms Mair on behalf of the appellant has had the opportunity to address them.
40. The challenge that is brought by the respondent is to the Judge’s assessment of article 3 of the ECHR in the context of this particular appellant’s circumstances. The reference set out in the grounds at paragraph 1 (a) refer to the assessment made by the Judge as being based on speculation and that as such did not satisfy the burden of proof. The grounds at paragraph 1 (d) also refer to the assessment of risk undertaken by the Judge as being speculative by reference to the conclusion reached that he would be imprisoned and ill-treated. Those grounds in reality are a challenge to the way in which the Judge addressed the issue of article 3 and whether the return of the appellant to Pakistan would result in a breach of article 3 in the light of the reasoning provided by the Judge and in essence the identifiable gap in the reasoning which constitutes an error of law.
41. Insofar as the grounds refer to the burden and standard of proof, the Judge did not set out in the decision the burden or standard of proof in the context of an article 3 claim as raised on the facts of this appeal. In this context the grounds at paragraph 1 (f) refer to the way in which article 3 in medical cases is engaged. This was a point addressed at length in the decision letter and by reference to the high threshold necessary to establish a breach of article 3. Whilst it is correct as Ms Mair submitted that the appellant did not raise a stand-alone claim based on article 3 medical health nor did the Judge allow the appeal on that basis, the factual matrix relied upon was based on his medical condition and risk from this and could not properly be separated from the issue of mistreatment. The Judge did not set out the relevant standard of proof which related to an article 3 claim when assessing whether the appellant’s article 3 rights were breached in the circumstances claimed. Ms Mair’s submissions rely on paragraph 19. However paragraph 19 is not clear as the Judge refers to “the standard is a balance of probabilities” and that the appellant’s claim remains subject to the “lower standard of proof” which is repeated at paragraph 21 (d) and paragraph 49. That said I would accept that it is not necessary in general cases to set out the burden and standard of proof. However the reader of any judicial decision must be reassured from its content that the court or tribunal has applied the correct legal test to any question it is deciding ( see EJA v SSHD [2017] EWCA Civ 2017 at para 27).
42. Article 3 of the European Convention on Human Rights provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
43. Where a foreign national seeks to rely upon article 3 as an answer to an attempt by a state to remove him to another country, the overall legal burden is on him to show that article 3 would be infringed in his case by showing that that there are substantial grounds for believing that he would face a real risk of being subject to torture or to inhuman or degrading treatment in that other country ( see the decision of the ECtHR in in Soering v United (1989) 11 EHRR 43). That principle was applied in the context of the return of asylum-seekers in Vilvarajah v United Kingdom (1991) 14 EHRR 248.
44. The applicable test is an assessment of whether there are substantial grounds for believing that the applicant faces a real risk of being subjected to treatment in breach of Article 3 and the risk must necessarily be a rigorous one … and inevitably requires that the Court assess the conditions in the receiving country against the standards of that Convention provision … . These standards imply that the ill-treatment the applicant alleges he or she will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case, such as the duration, nature and context of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. The decisions in this area reiterate that it is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to article 3.
45. The point made in the grounds at paragraph 1 (f) was that there was no reference to those principles in the decision. The threshold and the “real risk” test underscore how important the analysis of the evidence is and that the threshold to demonstrate a breach of article 3 in those circumstances of a “real risk” is of particular importance when evaluating the reasoning given by the Judge. This is what the grounds at paragraph 1 (a),(b) and (d) rely upon and the reference to the analysis of risk and that the Judge engaged in speculation, and it is this way in which it is asserted that there has been inadequate reasoning and a misdirection in law which in turn relates to the standard burden of proof. I take the grounds to mean that the Judge overall considered that the appellant would face article 3 mistreatment based on him being imprisoned and that this was based on speculation in her analysis and as such constituted a gap in her reasoning and the conclusion reached.
46. When assessing whether there is a real risk of article 3 mistreatment, the individual facts of each case should demonstrate that there is a real risk of being imprisoned and not just in the context of whether detention would cause a particular individual in particular circumstances to suffer treatment contrary to article 3. Whilst Ms Mair submits that the Judge did assess that issue, and having considered the submissions in the context of the Judge’s decision I am satisfied that the Judge did engage in speculation as identified in the grounds.
47. When undertaking an assessment of the likely consequences and whether there is a “real risk” of ill-treatment to the minimum level of severity, a decision-maker should avoid a fragmented approach and look at the process as a whole which in this case does not just include the issue of whether he will drink alcohol but also the criminal justice process thereafter. This is because the analysis of whether article 3 would be breached in the circumstances relied on by the appellant based on real risk requires a holistic approach.
48. The point made in the grounds both at 1(a) and (b) (c) and (d) is that the Judge in her analysis started from the assumption he would drink and would be imprisoned. Whilst I accept the submission made by Ms Mair that the Judge was entitled to consider and place some weight on the Human Rights Watch report ( see paragraph 46 of the decision), the assessment was based on the generality of prison conditions and there was no assessment made as to whether there was a real risk or causal link as to how he would end up imprisoned by reference to that generalised evidence, nor the types of punishment that had been imposed on citizens in Pakistan as supported by evidence based on what had happened to such a cohort in Pakistan. The HRW report did not address this.
49. Ms Mair points to the evidence in the response to the information request which sets out the punishment can be imprisonment and/or a fine. However there is no indication of the circumstances in which such prosecutions are brought given that the respondent’s evidence refers to there being a large black market of alcohol being on sale in Pakistan. The fact that there are organisations relied upon by the respondent in the same report which provide counselling and treatment for those who are dependent on alcohol suggests that this is taken into account in Pakistani society and is an issue that is addressed. This links to the speculative assessment of risk and that the causal link of being in possession of alcohol and being imprisoned was not addressed in the assessment of risk. In other words given that there are likely to be Muslims in Pakistan who drink and possess alcohol the assertion that all will be arrested, prosecuted and indeed receive imprisonment is not evidenced. As set out in the response document reference is made to other punishments including a fine.
50. I do not accept the submission made that the respondent’s evidence demonstrates that there is a reasonable degree of likelihood of imprisonment. The country evidence only sets out in general terms that the possession of alcohol for Muslims is banned and that this can give rise to arrest and prosecution and punishment can be imprisonment and/or a fine. It does not set out nor is there any acceptance that all of those found to be in possession of alcohol or drinking alcohol are either prosecuted or if they are they receive a sentence of imprisonment. The appellant’s evidence in the HRW is entirely silent on this. That is not surprising because the report was not concerned with that issue but was in fact a generalised report on the health crisis in Pakistan prisons (see its own heading). It was based on 34 in-person interviews in Sindh and the Punjab province and the Islamabad capital Territory (including women and juveniles) and 24 interviews with lawyers. The material set out in the ASA also referred to prison conditions but not to the process of how the appellant would be imprisoned.
51. The grounds are made out that there was a gap in the reasoning, in other words inadequate reasoning, based on a speculative finding that the appellant would be imprisoned in light of the burden of proof which remained on the appellant to establish the likelihood of him being imprisoned on return. Whether or not his actions constitute a criminal offence under Pakistani law is not the issue but whether it is one which is likely to be punishable in his circumstances but also lead to imprisonment. In this context whilst Mr Diwnycz did not highlight this, there was material before the Judge provided on behalf of the appellant which related to the FSC and the parallel system of justice that operated which demonstrated that they have the ability to substitute lesser sentences ( see legal submissions made in the letter of 15 May 2023).
52. The issue is plainly linked to ground 1 (d) and that the Judge in essence went straight from considering the appellant being in possession of alcohol to then being imprisoned. Whilst ground 1 (d) refers to speculation, as set out above I think what really is what is being described as that there is a gap of logic in the reasoning which makes reasoning given by the Judge inadequate. There is no assessment even if imprisonment (which is not established on any of the country evidence provided) how long any detention or imprisonment would be or where he would be imprisoned. The HRW report expressly stated “we did not consider an exhaustive survey of all Pakistan prisons” and as the grounds set out there was no evidence that all prisons in Pakistan fell below the article 3 threshold. The point properly made in the grounds is that if that was so it would mean any citizen of Pakistan at risk of prosecution as opposed to persecution would be granted leave by the respondent.
53. In this context the grounds refer to there being no country expert and as set out the appellant relied upon a report which did not undertake or make any assessment/ finding that all prisons in Pakistan had poor conditions which led to a breach of article 3. The reference in the grounds made to the Judge envisaging the “worst case scenario” is really set out on the basis given in ground 1(a) and that the analysis of the Judge relied on speculation and thus a gap in her reasoning and as such there was no holistic assessment. I am satisfied that those grounds are made out.
54. It is necessary to address the issue raised by Ms Mair set out in rule 24 response (paragraph 11) and her oral submissions that there is an inconsistency in the respondent’s case where the respondent had argued for the purposes of the section 72 certificate that the appellant was an ongoing risk because he was unable to abstain from alcohol and continued to drink yet the respondent sought to argue that he could access treatment in Pakistan to stop drinking.
55. Having considered this I do not think that there is any tension in that position. This is the point made in the grounds and that in relation to risk on return to Pakistan the issue of drinking alcohol is in a different evidential context and why he drinks, and reference being made to his relative isolation in the UK, being without family and being apart from his cultural background and heritage. This was relevant to the 2nd issue of risk rather than the 1st issue of whether he was a danger to the public under section 72. I would also add that it is plain from reading the Judge’s assessment of the section 72 certification issue that it was not just the fact that the appellant during his offences had consumed alcohol but that the appellant remained a danger to the community because he continued to minimise his culpability and had refused to accept he had committed offences and thus had minimised his behaviour. In the witness statement he did not accept that he had threatened his wife in May 2017 and in relation to the offence in 2022 he did not accept that he had committed the offence and did not understand why he was convicted of it (see paragraph 3 2nd witness statement; p 128Cef).
56. The 2nd point relied on in the grounds is that the Judge failed to consider the evidence holistically and the evidence of support which was available in Pakistan. In this context the grounds at paragraph 1 (b) refer to the evidence that was before the Judge as to the support available in Pakistan. Reference was made to the clinics and caring centres available for rehabilitation and included the rehabilitation caring centre which also operated in the area where the appellant was from. It is of note that the appellant’s evidence both in his interview with the psychiatrist and in his witness statement was that he had no support at all and had no friends or family in Pakistan. In fact the appellant had identified his relatives in Pakistan has been 5 sisters, 2 brothers and his mother all living in Pakistan with their families (see witness statement paragraph 4; 9/3/22). As Ms Mair points out the Judge did consider the appellant’s brother at paragraph 40. The Judge did make a finding that she did not accept that the appellant’s brother would offer no support but that it would be limited. The point made in the grounds and the one I consider to be properly made is at the fact that the appellant’s brother had remained in contact with the appellant and provided a witness statement demonstrated further indications of the support that he would provide.
57. Alongside this whilst the Judge considered this was limited support it did not factor into account that support alongside the medical treatment he could access in Pakistan for his depression which the Judge did accept the appellant was able to obtain in Pakistan (see paragraph 13 of the decision) and as identified in the evidence relied upon by the respondent and set out in the grounds at paragraph 1 (c).
58. The Judge did refer to the report (response information request: Pakistan; alcoholism, June 2023) at paragraph 45 of her decision. However the assessment of this at paragraph 39 which sets out the available support for the appellant to address his dependency on alcohol is only addressed on the basis that he had not accessed treatment in the community and a place which he had recently moved to and the appellant’s own stated response that he would not access services in Pakistan. Whilst he had stated there were no services in Pakistan for him this was not supported by the objective evidence as the Judge had noted at paragraph 39.
59. In essence the grounds set out that the Judge did not objectively assess, rather it was based on his subjective claim, as to what support would consist of and whether he could access it rather than being based on an asserted lack of motivation. The objective assessment was that made by the psychiatrist at 13.7 that it was likely that on return the appellant would seek help for alcohol dependency.
60. In this context the grounds are right to submit that in the assessment of whether there was a real risk of article 3 mistreatment the Judge did not consider all the relevant characteristics which led to his drinking. The Judge set out at paragraph 41 that he had been able to control his alcohol consumption in Pakistan when living there and that the appellant had given evidence as to the problems he had had when living in the UK. He referred to losing control as he had separated from his wife and that he had more time and money. Whilst the Judge found that it was divorce that was a trigger there had been no assessment of the other circumstances identified by appellant which were relevant to the risk of relapse. This relates to his isolation in the UK. The Judge did not consider in the analysis of risk whether the circumstances in relation to a return to his country of origin, where there were family relatives alongside available health support via caring and rehabilitation centres would provide a differential outcome. The evidence before the Judge was that he had problems accessing the support group in his last place of residence due to language problems. It is also supported by the evidence referred to in the grounds that the appellant at the time of the psychiatric report was able to abstain from alcohol from 20 April 2022 to the date of the report and thereafter it appears from the Judge’s findings there had been isolated incidents including the day before the hearing where he drank alcohol.
61. Ms Mair was asked to address this in her oral submissions. She submitted that the Judge had placed great weight on the medical evidence at paragraph 42 relying on paragraph 13.5 of the psychiatric report and explained why the appellant would find return to Pakistan stressful and that he had a depressive illness which was a dual diagnosis and that the likely effect of return is that the depressive illness was likely to worsen on return and cause the appellant to drink more and the Judge was therefore entitled to attach weight to the report which was a key part of the Judge’s findings and that the respondent’s criticism was really aimed at the support available but that the appellant chose not to wish to access that support either in the UK or Pakistan.
62. Having considered that submission it is right that a characteristic relevant to risk on return is set out at paragraph 42 that return would likely be stressful and that his depression would likely to be worse and that he would drink but that is not the entirety of the psychiatric analysis or diagnosis. The Judge did not take into account that the appellant’s depression even in the context of the deportation proceedings had been effectively treated with the medication in the form of antidepressants (see paragraph 13.3) and paragraph 12.3 recorded that his depression was well controlled with medication and that he had no significant symptoms. The respondent had submitted to the Judge at paragraph 13 that the objective material demonstrated that such medication was available in Pakistan and therefore the evidence was a relevant consideration as to whether the appellant would suffer such stress to lead to the conclusion relied upon at 13.45.
63. For the reasons given above, the respondent’s grounds have been established and that the decision of the FtTJ involved the making of a material error on a point of law.
64. I observe that there is country guidance on the issue of whether prison conditions breach article 3 of the ECHR set out in the decision KA and others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 which was added as country guidance on 14 July 2010 and at paragraph ii of the headnote states: ii. Although conditions in prisons in Pakistan remain extremely poor, the evidence does not demonstrate that in general such conditions are persecutory or amount to serious harm or ill-treatment contrary to Article 3 ECHR.
65. The decision concerns the position of women in Pakistan, and it does not state in the case heading any reference to conditions of imprisonment. In the circumstances there is no criticism of the parties of not having referred to this. It any event, in an article 3 claim the conditions have to be considered in the light of any characteristics ( see Ireland v UK) and therefore this decision may not answer the issue completely, but I raise it so that the parties are aware of it. It does not play any part in my decision to find an error of law material to the outcome.
66. I therefore set aside the decision for material error of law. As to the further consideration of the appeal, as a result of the nature of the error of law identified it is likely that further fact-finding on the circumstances of the appellant will be necessary with any updating evidence. The Rule 24 response sets out that in the event of there being a material error of law being found that the appellant should be provided time to obtain additional legal aid funding but also to provide up-to-date evidence in relation to his own circumstances as well as the country conditions ( see paragraph 28). When exercising discretion, I am satisfied that the level of fact-finding is such that the appeal should be remitted to the FtT for a rehearing in accordance with the practice direction, the matter should be remitted to the First-tier under section 12 (2) (b) (i) of the TCE 2007 and paragraph 7.2 (a) of the Presidential Practice Statement (Begum (remaking or remittal) Bangladesh[2023]UKUT 0046 (IAC) considered). In fairness to the appellant the evaluative analysis will be informed by an assessment of the factual findings and the hearing of the evidence and that those two things should be considered together and that this is best achieved in fairness to the appellant by a fresh hearing before the FtT. However the findings on the section 72 certification are preserved as there has been no challenge to them during these proceedings.
67. As to article 8 of the ECHR, the Judge did not go on to consider any arguments advanced in relation to article 8 and relevant to section 117C because the Judge allowed the appeal and article 3 grounds. I note that in the skeleton argument did raise issues relevant to article 8 and also the issue of “very compelling circumstances” (S 117C(6)) and that will also require consideration before the FtT. It is of course for the FTT to give directions in the appeal and as to case management review before any hearing.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision is set aside. The appeal is remitted to the FtT for a hearing.

Upper Tribunal Judge Reeds

Upper Tribunal Judge Reeds
27 February 2025