Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004047

First-tier Tribunal No: PA/00910/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21st of November 2024

Before

UPPER TRIBUNAL JUDGE HIRST

Between

PDS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ahmed of counsel
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 19 November 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

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

DECISION AND REASONS

1. The Appellant appeals from the decision of First Tier Tribunal Judge Wood dated 10 June 2024, dismissing his appeal on protection and human rights grounds.
2. The Appellant is a national of Pakistan born in Kuwait in 2002. He entered the UK from Kuwait on 21 October 2019, then aged 17, with his parents and two siblings. The Appellant’s mother claimed asylum on 3 December 2019 and included the other members of the family as dependents. Her claim was refused and her subsequent appeal was dismissed by First Tier Tribunal Judge Carey on 20 July 2022. The Appellant did not give evidence in that appeal. Judge Carey made findings that the Appellant’s mother was not a credible witness and did not accept that she or other family members were atheists; amongst other factors he took account of the fact that the Appellant’s mother and father had visited Saudi Arabia on several occasions for the purpose of pilgrimage to Mecca.
3. The Appellant made a claim for asylum in his own right on 8 September 2022 on the basis of his atheist beliefs. His application was refused on 19 July 2023. The Respondent did not accept that the Appellant was an atheist or that he would be at risk on return to Pakistan.
4. The Appellant’s appeal against that decision was dismissed by First Tier Tribunal Judge Wood on 10 June 2024. The Appellant sought permission to appeal on the basis that the judge’s conclusion as to the Appellant’s beliefs was wholly unsupported by the evidence, and had failed to give independent consideration to the Appellant’s own evidence in dismissing the appeal in reliance on the findings of Judge Cary. Permission to appeal was granted on 16 September 2024 by Upper Tribunal Judge Neville.
5. On 30 September 2024 the Respondent filed a Rule 24 response opposing the appeal.
6. On 12 November 2024 the Appellant filed an application under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, seeking to adduce additional evidence including the Appellant’s witness statement for the First Tier Tribunal hearing in 2022.
7. The appeal came before me at an error of law hearing on 19 November 2024. I heard submissions from both parties’ representatives, which followed closely the grounds of appeal and the Rule 24 response. I gave my decision at the close of the hearing with reasons to follow.
The grounds of appeal
8. The Appellant’s two grounds of appeal overlap considerably. First, the Appellant asserts that the judge made an error of fact at paragraph 12 of the determination, where he stated that the Appellant “…had found out he was an atheist in 2014-15, when his mother had told him”. That was contrary to the Appellant’s clear evidence in his witness statement, and was indicative of the judge not considering the Appellant’s asylum claim independently to that of his mother.
9. The Appellant’s second ground is that, whilst the Devaseelan principles applied given the earlier determination of the Appellant’s mother’s appeal, the points taken against the Appellant by the judge at paragraphs 16-19 of the determination all related to issues in the mother’s appeal at a time when the Appellant had been a child and of which he had limited knowledge; the judge erred by failing to distinguish between the mother’s claim and the Appellant’s independent claim made as an adult.
Decision
10. The judge’s wording at paragraph 12 was not an accurate or fair summary of paragraphs 4-6 of the Appellant’s witness statement, in which the Appellant stated “as I grew into my teens I started to develop my own thoughts about religion and became sure that religion is unnecessary” and described his experience of concealing his atheism in public and to friends. I consider that paragraph 12 was a clear error of fact. Whilst not apparently significant in itself, the error was material to the judge’s credibility findings at paragraph 19, and to the outcome of the appeal as a whole.
11. It was common ground that the First Tier Tribunal determination of the Appellant’s mother’s appeal in 2022 was potentially relevant to the issues in the Appellant’s appeal, and that the principles in Devaseelan v SSHD [2002] UKAIT 702 applied. It was also common ground that the Appellant had not given oral evidence in his mother’s appeal.
12. The judge noted [5] that the only issue for him was whether the Appellant was an atheist, and [10] that there was little evidence beyond the Appellant’s account. He correctly directed himself that Judge Cary’s findings about the Appellant’s mother were his starting point [11]. However, the basis on which the judge found that the Appellant’s evidence was “vague” was that he was not able to provide detail as to his parents’ problems in Kuwait [16-17], the lack of detail about the circumstances in which the parents’ visa had been revoked in 2019 [17-19], or his parents’ visits to Saudi Arabia between 2010 and 2019 [19]. I accept the Appellant’s submission that, given the Appellant was a child at the time, his lack of knowledge of those issues was at best of limited relevance to his own claim to be an atheist.
13. Considering the decision as a whole, I conclude that although the judge did not err by treating Judge Cary’s findings as his starting point, he did fall into error by failing to depart from the earlier determination and consider the credibility of the Appellant’s evidence in its own right. The error is apparent in paragraph 19, where the judge expressly linked the findings made by Judge Cary about the Appellant’s parents to the credibility of the Appellant’s own claim:
“His difficulty is that his case to be an atheist is to some extent dependent on the faith position of his family as a whole. His case is that he adopted atheism, to some extent, from his family, and that he was told the family were atheist in 2015. But this was at a time when his parents were still apparently making pilgrimages to Mecca.”
However, as set out above, the Appellant’s case was not in fact that he had “adopted atheism from his family”, but that he had developed his beliefs independently. The absence of the Appellant from the trips to Saudi Arabia was therefore potentially a significant indicator of his atheist beliefs at the relevant time. The judge’s failure to consider that evidence in its own right, combined with his misapprehension of the basis of the Appellant’s case, was a clear error of law.
14. Given that the Appellant’s atheism was the only issue before the First Tier Tribunal, the errors in the judge’s approach were material to the outcome of the appeal.
Notice of Decision
The decision of the First Tier Tribunal involved the making of a material error of law and the decision is set aside.
The appeal is remitted to the First Tier Tribunal for a de novo hearing before a judge other than First Tier Tribunal Judge Wood with no findings preserved.
L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber
20 November 2024