Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004114

First-tier Tribunal No: IA/14151/2021
PA/54687/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 March 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

KG
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Bazini, Counsel instructed by JJ Law Chambers
For the Respondent: Mr M Parvar, Senior Presenting Officer

Heard at Field House on 3 March 2025

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 against the decision of the respondent dated 9 September 2021 refusing his asylum and humanitarian protection claim made on 24 January 2020.

2. The appellant’s appeal was originally dismissed by the First-tier Tribunal in a decision promulgated on 26 May 2023. However, that decision was set aside by Deputy Upper Tribunal Judge Saini on 1 November 2023 and the matter was remitted to the First-tier Tribunal for a rehearing. The appellant’s appeal was again dismissed by the First-tier Tribunal on 9 July 2024. That decision was also set aside by the Upper Tribunal on the basis that it contained a material error of law. A copy of the error of law decision promulgated on 9 January 2025 is appended to this decision. On this occasion, the remaking of the appeal was reserved to the Upper Tribunal.

3. For the reasons set out below, we are satisfied that the appellant has demonstrated to the lower standard that he faces a real risk of persecution on return to Pakistan so as to entitle him to status under the Refugee Convention. We are also satisfied that his removal to Pakistan would breach the UK’s obligations under Article 3 of the European Convention on Human Rights (“ECHR”).

Anonymity Order

4. The First-tier Tribunal made an order granting the appellant anonymity. No application has been made to set aside that order. While we take into account the strong public interest in open justice, we continue the anonymity order on the basis that the appellant’s claim relates to a fear of persecution in his home country and, for that reason, the balance weighs in favour of protecting his identity.

Background

5. The appellant is a national of Pakistan who was born in 1978. He entered the United Kingdom on 29 March 2010 using a Tier 4 (General) Student visa valid until 8 August 2011. On 28 June 2011, the appellant applied for leave to remain as a student which was granted until 5 March 2014. The appellant’s student leave was, however, curtailed with no right of appeal on 3 April 2013 on the basis that his college was no longer sponsoring him and his student visa expired on 2 June 2013. The appellant applied for further leave to remain as a student on 27 February 2014 but that application was refused with a right of appeal on 19 June 2015. The appellant’s appeal against that decision was allowed by the First-tier Tribunal on 10 October 2016. As a consequence, the appellant’s application was reconsidered by the respondent and refused again on 14 June 2018 with another right of appeal. This time, the appellant’s appeal was dismissed by the First-tier Tribunal, on 19 February 2019. His appeal rights were exhausted on 19 August 2019.

6. On 2 August 2019, the appellant applied for leave to remain on family and private life grounds. That application was refused and certified under s.94 of the Nationality, Immigration and Asylum Act 2002 on 28 October 2019.

7. On 12 December 2019, the appellant was detained on reporting and served with notice that he was liable to removal. He submitted further representations on 20 December 2019 which were rejected under para 353 of the Immigration Rules on 27 December 2019. Removal to Pakistan was due to take place on 3 January 2020. However, the appellant applied for judicial review and, on 24 January 2020, he claimed asylum.

The appellant’s asylum claim

8. The appellant seeks asylum claim on the basis that he fears the Pakistani Taliban, who he says sought to recruit him, as well as mistreatment by the Pakistani authorities as a deserter from the Pakistan Air Force (“PAF”).

9. According to the appellant, he joined the PAF in 1996 as an aircraft radar technician and served at a number of bases. He says that in December 2009, the Taliban, who were active in his home village, visited his family’s house and spoke with his father. The appellant claims that the Taliban wanted the appellant to join them as he was “a trained army [sic] employee and would be of great use to them”: see para 2 of his second witness statement [appellant’s second First-tier Tribunal bundle (“AB2”)/1]. Soon after, the appellant returned home on leave. The Taliban returned to the appellant’s house and tried to persuade him to work for them. The appellant says that he refused. The following day, he and his father went to the local police but they refused to help. The appellant says that his family then moved to Rawalpindi for safety. The appellant returned to his base after a week and informed his commanding officer of what had happened. According to the appellant, the following day, he was arrested by military police and interrogated for nine days during which time he was tortured and physically abused. The appellant was released but told that he could be brought back for further questioning. He says that he was terrified that he would be detained again and he was left paranoid by his experience. Having spoken to his father, in January 2010 the appellant applied for a student visa to come to the UK. He applied for a month’s annual leave from the PAF and arrived in the UK in March 2010. The appellant claims that he is now wanted as a deserter by the PAF and that military officials often visit his family’s home to question them about his whereabouts: see para 11 of his second witness statement. The appellant claims that in January 2020 when he was facing removal to Pakistan, he spoke to his family there and his father told him that it was not safe for him to return as his father had been informed that the appellant’s name was on the entry and exit list and would be arrested at the airport and court-martialled: see para 15 of his second witness statement. This, the appellant says, convinced him to claim asylum.

The respondent’s decision

10. In a decision dated 9 September 2021, the respondent refused the appellant’s protection claim [respondent’s bundle (“RB”)/5]. The respondent accepted that the appellant worked as a radar technician for the PAF. However, she did not accept that he was wanted by the Taliban or the military police because they believed him to have links to the Taliban. The respondent accepted that the appellant had given a “fairly detailed account” of the Taliban visiting his home area in 2009. However, the respondent said that the appellant had been able to live in Pakistan without further problems from them. Furthermore, the respondent said that the appellant had failed to disclose during his screening interview that he had been detained by the military police when asked whether he had ever been detained. The respondent also considered that the military police would not have released the appellant if they believed him to have links to Taliban. Furthermore, it was not accepted that the PAF would have given the appellant a month’s leave if they suspected him of being involved with the Taliban. The respondent said that the appellant’s claim that his problems started at the beginning of January 2020 when he found out his name was on the exit and entry list was inconsistent with his claim that his problems started in 2009. The respondent also considered that the appellant’s delay in claiming asylum was damaging to his credibility in accordance with s.8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”). The respondent also decided that the appellant was not entitled to leave to remain on family and private life grounds.

The remaking hearing

11. It was agreed that the Upper Tribunal had to resolve the following issues:

a. Whether the appellant’s account of being approached by the Taliban and detained and tortured by the PAF is credible;
b. Whether the appellant is a deserter from the PAF and, if so, does this place him at risk on return;
c. Whether the appellant’s removal from the UK would breach the UK’s obligations under the Refugee Convention and/or Articles 2 and/or 3 ECHR; and
d. Whether the appellant’s removal would breach his right to a family and private life under Article 8 ECHR.
Evidence

12. We had the following documents before us:

a. The appellant’s first First-tier Tribunal bundle, consisting of 124 pages;
b. The appellant’s second First-tier Tribunal bundle, consisting of 138 pages;
c. The appellant’s further evidence bundle dated 21 February 2025, consisting of 10 pages;
d. The respondent’s First-tier Tribunal bundle dated 20 December 2023, consisting of 118 pages; and
e. The respondent’s review dated 12 May 2022.

13. We also heard oral evidence from the appellant, who gave his evidence in English. The appellant’s evidence is set out in his three witness statements and in the record of proceedings and is not therefore rehearsed here except when necessary to do so.

Legal framework

14. To succeed in an appeal on asylum grounds, an appellant must show a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion). To succeed on an appeal on humanitarian protection grounds an appellant must show a real risk of serious harm at the date of the hearing. The burden of proof rests on an appellant. The standard of proof is a reasonable degree of likelihood, which can also be expressed as a reasonable chance or a serious possibility.

Findings

Section 8 of the 2004 Act

15. We first consider whether the appellant’s credibility is damaged as a result of his delay in claiming asylum in accordance with s.8 of the 2004 Act. The appellant arrived in the UK on 29 March 2010 but it was not until 24 January 2020 that he claimed asylum having been arrested for overstaying and detained pending his removal to Pakistan. In oral evidence, the appellant said that he did not claim asylum sooner on legal advice because he had a student visa. He also claims that he thought his problems in Pakistan would blow over. We are not persuaded by the appellant’s explanation. He was well aware when he applied for a month’s leave from the PAF that he was intended to come to the UK for a longer period than that study. Furthermore, as a person with 13 years’ service in the PAF he knew what the ramifications were for going AWOL. The appellant only claimed asylum after he been unsuccessful with applications for further leave to remain as a student and on human rights grounds. Although not determinative of his claim, we are satisfied that the delay in claiming is damaging to the appellant’s credibility.

Whether the Taliban sought to recruit the appellant

16. The appellant’s claim begins with his account of the Taliban having visited his family’s home in December 2009 in order to recruit him. We note that at para 60 of her decision letter, the respondent accepted that the appellant had given “a fairly detailed account of how in 2009 the Taliban entered into [the appellant’s] home area, Baja, trying to recruit people”. We also take into account that the country expert report relied upon by the appellant, written by Dr Owen Bennett-Jones and dated 27 March 2024, confirms that the timing of the appellant’s story coincides with when the conflict between the Taliban and Pakistan’s security forces was at its height: see para 8 [AB2/22]. Dr Bennett-Jones also confirms, at para 10, that the “area from which [the appellant] comes from, Swabi, is well known for its religious conservatism” and “[i]t is located in the north west of Pakistan where in general terms the Taliban have been, and remain, strong”. Dr Bennett-Jones states that “by 2009 the Taliban had started extending its influence to Swabi and recruiting people there”. We therefore find that Dr Bennett-Jones’s report lends credence to the appellant’s version of events.

17. However, Mr Parvar, on behalf of the respondent, submitted that the appellant’s account of his interactions with the Taliban were extraordinary and should not be accepted. In particular, he submitted that it was implausible that the Taliban would want the appellant, who was a radar technician with only basic training in firearms, to join them to provide weapons training. Mr Parvar also argued that it was incredible that the appellant never pointed out his lack of skill in this area to the Taliban. Mr Parvar submitted that the expert also does not comment on whether this is credible. In response, Mr Bazini, representing the appellant submitted that the appellant could not put himself in the heads of the Taliban. They may, he said, have believed the fact that the appellant knew how to use and operate a gun was sufficient for their purposes: there was no suggestion that they were looking for him to train snipers. Mr Bazini also submitted that it was not the job of the expert to comment on whether it was credible the Taliban would want the appellant to join them because of his weapons training. On careful consideration, we accept Mr Bazini’s submissions. We cannot know exactly what the Taliban were thinking. It may simply be the case that they wanted the appellant because he had some military experience, regardless of how niche it was. It would be wrong for us to speculate. Furthermore, we do not accept that it is a strong credibility point that the appellant did not inform the Taliban that he was a radar technician with only basic weapons training. As the appellant explained during oral evidence, it was a stressful experience having the Taliban visit his family’s house. Having considered these findings in the round with the points raised in the preceding paragraph, we are satisfied to the lower standard that the Taliban did visit the appellant’s family home in Pakistan in December 2009 seeking to recruit him.

Whether the appellant was tortured by military police

18. We therefore turn to the appellant’s account of what happened when he reported his contact with the Taliban to his superiors in the PAF. Mr Parvar submitted that it was extraordinary that the PAF would detain and torture him for nine days. Mr Parvar said that the appellant’s evidence was that he was trusted and had been a member of the PAF for 13 years, and it was unlikely that the appellant would have gone to his officers if he genuinely had links to the Taliban. Furthermore, Mr Parvar submitted that the fact the appellant said that he did not require hospital treatment following his release from detention undermined his claim to have been badly tortured.

19. We agree with the respondent that, on first blush, it does appear odd that the PAF would seek to treat one of their own personnel in such a brutal way on account of them volunteering information about contact they had had with the Taliban. It certainly would not encourage others to come forward. However, we take into account that at para 9 of his report, Dr Bennett-Jones writes:

“In the course of this conflict [between the Pakistani authorities and the Taliban] there were a number of assassination attempts against the military leader in Pakistan, President Musharaf. One of the most significant involved a group of air force personnel who had become Taliban sympathisers. In 2005 six air force personnel were convicted of involvement in the assassination attempt. One of them was a Pakistan Air Force technician from Swabi – in other words he had a similar job and came from the same area as [the appellant]. He was convicted in 2005 and executed in 2014.”

20. As with our findings above in relation to the Taliban, we cannot put ourselves into the heads of the officer or officers who decided that the appropriate response to the appellant’s report was to detain and beat him. As Mr Bazini submitted, that one PAF officer might decide on that approach did not mean that all officers may have done the same: the appellant may simply have been unlucky. Moreover, we attach weight to Dr Bennett-Jones’s report and we are satisfied to the lower standard that at the beginning of 2010, when the appellant went to his superiors, the PAF may have been very sensitive to potential Taliban sympathisers within its ranks and this led to the appellant’s harsh treatment given where he came from. We also take into account that that the Home Office’s Country Policy Information Note (“CPIN”) Pakistan: Actors of Protection (Version 4.0; July 2024) provides a quote at para 5.4.1 that says “Torture by police and other law enforcement agencies is so endemic and systematic in Pakistan that it is largely common practice”. We also accept Mr Bazini’s submission that even if the appellant was beaten during his time in detention, it had never been his case that he was so grievously injured that he required hospital treatment.

21. While we accept that the appellant’s credibility is undermined to some extent by his delay in claiming asylum and the fact that he failed to mention his detention by military police during his asylum screening interview, having considered the evidence in the round, we are satisfied to the lower standard that the appellant was detained and beaten by military police in 2009.

22. Having accepted to the lower standard the appellant’s claim to have been visited by the Taliban and arrested and beaten by military police, we turn to consider whether the appellant would be at risk on return to Pakistan.

Risk on return

23. Mr Parvar submitted that the fact that the PAF allowed the appellant to take a month’s leave and that he was then able to leave the country to travel to the UK undermined the appellant’s case that he was still under suspicion for being associated with the Taliban. We agree with that submission. Even to the lower standard, we are not satisfied that the PAF military police likely still had an ongoing interest in the appellant following his interrogation. The appellant’s evidence at para 6 of his second statement (as amended during his evidence-in-chief) was that he was told that he “could” be brought back for further questioning. While Dr Bennett-Jones considers a possible explanation as to how the appellant might have been able to leave Pakistan even if he was on a watchlist at paras 28 to 31, we attach little weight to this aspect of his first report. First, it proceeds on the erroneous basis that the appellant had already gone AWOL in 2009 before he left Pakistan, which is not the appellant’s evidence: see para 10 of the appellant’s second witness statement. Second, it assumes that the appellant was on a watchlist called the entry control list (“ECL”) before he left Pakistan. If that was information given to Dr Bennett-Jones by his sources in Pakistan (see below) then he does not say so. Third, Dr Bennett-Jones appears here to speculate. We are therefore satisfied that the appellant has failed to prove, even to the lower standard, that he was on the ECL prior to his departure from Pakistan in March 2010.

24. However, we do accept Mr Bazini’s submission that what is important was that the appellant’s evidence is that he nevertheless felt traumatised and paranoid as a result of his treatment by the military police and, as far as he was concerned, he could be re-arrested and subjected to further ill treatment. That, Mr Bazini said, led the appellant to decide to travel to the UK and go AWOL and that, in itself, has now put the appellant at a real risk of harm from the Pakistani authorities. Essentially, the appellant made a bad situation worse.

25. It is the appellant’s case that he is now on the ECL and that, as a result, he will be arrested on return to Pakistan and detained pending court martial for being a deserter. As part of the appellant’s case, it is argued that he has was subject to a minimum length of service of 25 years, but he went AWOL after 13 years. We note that the appellant does not refer to this 25-year minimum service period in any of his Home Office interviews or his three witness statements. However, in his second First-tier Tribunal hearing bundle, he provided two witness statements from former colleagues in the PAF.

26. The first witness statement is written by Mr Ijaz Ahmad who says that he joined the PAF on 29 October 1996 and retired 25 years later [AB2/14]. Confirming that Mr Ijaz was discharged after 25 years is a copy of his PAF certificate of service which says that he was eligible for discharge on 30 October 2021 [AB2/17]. In his statement, Mr Ahmad confirms the appellant’s claim that he was interrogated by military police as they believed he was involved with the Taliban. He also states that those serving in the PAF are not allowed to voluntarily retire or leave without following the proper procedure and that the circumstances surrounding the appellant’s departure from Pakistan means that he would be considered to be AWOL.

27. The second witness statement is written by Mr Sheryar Khan [AB2/18]. Like Mr Ahmad, Mr Khan confirm that the appellant was taken into custody by the PAF military police and was interrogated for nine days. He says that at that time, “there was a zero tolerance policy” because “some of the PAF employees were accused of working with the Taliban therefore the military police were strict and interrogated the appellant for 9 days and kept him under observation afterwards” (see para 5), something that accords with Dr Bennett-Jones’s report. Mr Khan also states that he retired from the PAF after 25 years of service. However, he goes on to say that the appellant “did not complete 25 years of service in the PAF and became absent without leave (AWOL)” and is now considered a deserter: see para 6. We do not have the date on which Mr Khan joined the PAF, but we note from his certificate of service that he was a student before his enrolment and that he was discharged on 8 July 2022 [AB2/21].

28. We therefore accept from the evidence provided by Mr Ahmad and Mr Khan that they at least were subject to a 25-year service period in the PAF. We note however that they retired as a chief warrant officer and assistant warrant officer respectively and were therefore more senior than the appellant, who was a corporal technician. There is, we find, insufficient evidence before us to show that all ranks or responsibilities within the PAF are subject to the same 25-year service period and we find it surprising that the appellant does not make such a claim in his own witness statements. At para 11 of his report, Dr Bennett-Jones explains that he has been asked whether people can leave the PAF without 25 years of service. At para 12, he states that he has been told by contacts in the Pakistan military

“that the terms of service for different personnel vary. In general terms, the more training the military provides for someone (for example for a specialist technical role) the longer they are expected to serve. The longest term of service is 25 years after which the individual retires on a full pension. I have been unable to find out what terms of service is expected for a radar technician.”

29. Dr Bennett-Jones goes on at para 13 to note that Mr Khan in his witness statement says that the appellant “needed to complete 25 years of service. Although I cannot confirm that myself, it is plausible that is the rule for radar technicians”. Dr Bennett-Jones states at para 14 that the length of the appellant’s terms of service is “to some extent moot since [the appellant] says that he went Absent Without Leave (AWOL) whilst still working for the air force”.

30. We are not satisfied from the evidence before us that the appellant was subject to a 25-year service period. However, we agree with Dr Bennett-Jones when he says that this point is effectively moot if, as we do accept, the appellant was still working for the PAF at the time he came to the UK. On this point, Dr Bennett-Jones notes at para 14 that the appellant produced his Air Force Card to the Home Office [RB/102-105] and that had the appellant retired from the PAF, he would have been required to hand that back, which supports his claim to have gone AWOL.

31. We also take into account that at para 24, Dr Bennett-Jones writes that the ECL “is in fact short hand [sic] for two separate lists – the Exit Control List itself and the Passport Control list [sic]”. Decision about who is placed on the ECL is taken at cabinet level and often involve high profile cases, whilst the Passport Control List is managed by the Ministry of Interior. Dr Bennett-Jones says that “[w]hen people are on the Passport Control List, it is generally said that they are on the Exit Control List”. He writes at para 23 that “[a]ccording to a September 2015 article in The Nation, one of the categories of people placed on the ECL are: “deserters from a defence or a security force or strategic organisation”.

32. Dr Bennett-Jones then says the following at para 25:

“Having been given [the appellant’s] passport number and CNIC (ID card) number by his lawyer, I enquired from my contacts in Pakistan about [the appellant’s] status. It turns out that he is on the Passport Control List.”

33. At para 26, Dr Bennett-Jones explains that he has obtained this information through “good senior contacts in Pakistan who can provide me with information on an informal basis”. He says that he will not name the source or the intermediary that he uses and accepts that “this might undermine my credibility but I simply cannot – or will not – put my contacts at risk”.

34. Dr Bennett-Jones has provided a second expert report, dated 14 February 2025 [appellant’s further bundle (“AB3”)/3]. At para 12, he provides the following updated information:

“On 13 February 2025 I provided my intermediary in Pakistan with [the appellant’s] name as well as his passport and CNIC numbers. On 14 February 2025 the information came back that FIA Immigration Control confirmed that [the appellant] is still on the Passport Control List as before.”

35. At para 13, Dr Bennet-Jones says that the appellant “is still on the Passport Control List and would therefore be picked up on his arrival in Pakistan”.

36. Mr Parvar submitted that little weight could be attached to Dr Bennett-Jones’s reports. He said that the first report was provided late in the day, prior to the appellant’s second appeal hearing before the First-tier Tribunal and, consequently, the respondent had not been able to deal with it in her review. We find that little turns on that point. While the respondent may not have had the opportunity to consider the first report before she wrote her review on 12 May 2022, the fact remains that the presenting officer dealing with the appeal at the remitted First-tier Tribunal hearing was in a position to make submissions on it at the hearing, as was Mr Parvar before us. Furthermore, Dr Bennett-Jones was, we were told, available to give oral evidence at the hearing before us (although he was not present at the hearing centre) but Mr Parvar did not take up the opportunity to cross-examine him. Furthermore, we find that Mr Parvar’s submission that Dr Bennett-Jones is predominantly an expert on extremism rather than the Pakistan military is not made out. As Mr Bazini submitted, if someone is an expert on extremism in Pakistan it almost certainly follows that they will have a good understanding of the security forces in conflict with them. Mr Parvar made some other points in respect of Dr Bennett-Jones’s report but, on consideration, we are satisfied that we can attach weight to what he writes. Contrary to what Mr Parvar suggested, we find that Dr Bennett-Jones has an impressive CV. He is a former BBC foreign correspondent, was the Corporation’s Islamabad bureau chief, and has reported on South Asia for 25 years. He has given talks on Pakistan’s extremist groups to universities including LSE, Oxford and Cambridge and has taught at Princeton and University of Southern California. He runs seminars for British diplomats and civil servants. He has a PhD for which he studied sources of violent extremism in Pakistan and has written books on the country. We take into account that Dr Bennett-Jones is clear when he is not in a position to answer a question put to him, for example at paras 13 and 19. And while Dr Bennett-Jones refuses to divulge the sources for his information that the appellant is on the ECL, and that his evidence in this regard is hearsay, we nevertheless have no reason to doubt his integrity and we therefore attach weight to what he says.

37. Considering the evidence together in the round and applying the lower standard applicable in protection cases, we are satisfied that the appellant is on the ECL. We also find that the most likely reason for this is that the appellant is wanted for desertion from the PAF having not returned from his one month’s leave in early 2010. While we do not find it credible that the PAF continues to expend resources several years later by making repeated visits to his family’s home in Pakistan asking about his whereabouts as the appellant claims, we are nevertheless satisfied to the lower standard that on return to the country the appellant is likely to be stopped at the airport and arrested pending a court martial. We accept from paras 15, 20 and 21 of Dr Bennett-Jones’s first report that the likely punishment for desertion is a period of imprisonment. Given that the appellant was not on active service when he deserted, the sentence is likely to be short-term. An example given by Dr Bennett-Jones is a PAF deserter who was sentenced in 2018 to one year’s imprisonment having gone AWOL for over seven years (which we note is a shorter period than the appellant’s).

38. We therefore turn to the conditions that the appellant would be detained in by the PAF. We have already accepted, to the lower standard, the appellant’s evidence that he was previously detained in harsh conditions and tortured by the military police. The fact that he was previously mistreated by military police is an indicator as to how he is likely to be treated on return. We also take into account paras 33 to 40 of Dr Bennett-Jones’s first report which deals with the poor prison conditions in Pakistan, both civilian and military. We have also had regard to the contents of the 2023 US State Department report on Pakistan which similarly raises issues of abusive physical conditions [AB2/39]. On this point, Mr Parvar accepted that if the tribunal was to find that the appellant was on the ECL and was at risk of arrest and detention on return, then he did not seek to argue that the prison conditions would not breach Article 3 ECHR. We are therefore satisfied that if the appellant was to be arrested and detained on return to Pakistan as a deserter from the PAF, then his removal would breach the UK’s obligations under Article 3.

39. Drawing all the strands together, we make the following findings on risk on return applying the lower standard:

a. We are satisfied that the appellant is not at continuing risk from the Taliban after so many years away and given that the threat was limited to his home area;
b. While we are satisfied that the appellant was not of continuing interest to the military police following his release from detention in 2009, we find that having subsequently fled the country, there is a real risk that this might have reignited their suspicions that he is a potential Taliban sympathiser and his claim therefore engages the Refugee Convention (imputed political opinion); and
c. In any event, even if the military police still do not view the appellant as a Taliban sympathiser, we are satisfied that he would be at real risk of arrest, court martial and imprisonment on return as a deserter from the PAF. While that amounts to prosecution rather than persecution, the prison conditions are likely to breach Article 3 ECHR.

Article 8 ECHR

40. Mr Bazini acknowledged that this ground would stand or fall with the appellant’s protection claim. As we have found that the appellant’s removal would breach the UK’s obligations under the Refugee Convention and Article 3 ECHR, we also find that this decides his Article 8 private life claim in his favour. We are not, however, satisfied from the evidence before us that the appellant enjoys any Article 8 family life in the UK.

Notice of Decision

The appellant’s appeal on Refugee Convention grounds is allowed.

The appellant’s appeal on human rights grounds is allowed.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10th March 2025
Annex: Error of law decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004114

First-tier Tribunal No: PA/54687/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

KG
ANONYMITY ORDER MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Bazini, Counsel instructed by JJ Law Chambers.
For the Respondent: Mr M Parvar, Senior Presenting Officer.

Heard at Field House on 6 December 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 against the decision of First-tier Tribunal Judge Manuell (“the Judge”) promulgated on 10 July 2024. The Judge dismissed his appeal against the respondent’s refusal of his protection claim. Permission to appeal was granted by Upper Tribunal Judge Rastogi on 7 October 2024.

2. At the hearing before us, we heard submissions from Mr Bazini and Mr Parvar. At the conclusion we gave an indication that the appeal succeeds, and we now set out the reasons.

Anonymity Order

3. The Judge issued an anonymity order. No party requested that the order be set aside. We observe that the appellant seeks international protection.

4. We consider that at the present time the appellant's private life rights protected by article 8 ECHR outweigh the public interest in knowing his identity in these proceedings, as protected by article 10 ECHR. In the circumstances the anonymity order is properly to continue.

5. The order is detailed above.

Background

6. The appellant is a national of Pakistan who was born in 1978. He entered the United Kingdom on 29 March 2010 as a Tier 4 (General) Student. He claimed asylum on 24 January 2020 following his detention for removal. His appeal is based on his fear of the Pakistani Taliban as well as mistreatment as a deserter from the Pakistan Air Force (“PAF”). The decision to refuse asylum was made on 9 September 2021 and his appeal against that decision was originally dismissed by a First-tier Tribunal Judge on 26 May 2023.

7. That decision was subsequently set aside on 19 October 2023 in the Upper Tribunal. It was directed that the appeal should be reheard with no findings preserved which took place before Judge Manuell on 3 July 2024.

The decision of the First-tier Tribunal

8. The Judge sets out a detailed precis of the evidence before him [7] to [24]. He places it within the context of the country background evidence and makes reference to the country expert evidence of Dr Bennett-Jones, describing it as “largely uncontroversial”. He does not accept that the Appellant was the subject of a recruitment attempt by the Taliban and that he therefore needed to go to the police for help. It follows that the Judge does not accept that the appellant was mistreated by the PAF Military Police on account of the Appellant revealing to them that he had been approached by the Taliban and he goes on to give detailed reasons why he found this evidence to be implausible. He rejects the appellant’s case that he is at risk as a deserter and specifically that the appellant’s length of service was 25 years or that he could not resign. In doing so he notes that Dr Bennett-Jones did not identify the terms of service for the appellant’s role [34].

9. The Judge does not accept that the appellant was of interest to the authorities and comments that “Dr Bennett-Jones states in his report that the Pakistani government can prevent the departure of persons on the Exit Control List. Dr Bennett-Jones posits that the Appellant left before the airport checking system was improved, but in the tribunal’s view the Appellant’s unhindered departure speaks for itself” [39].

10. The Judge then goes on to set out in some detail the evidence that he considers to be inconsistent and vague [38 to 43]. He gives reasons why he thinks the appellant’s evidence is fabricated and relies on the delay in claiming asylum.

11. He analyses the expert's evidence in paragraphs [44] and [45] and expressly refers to Dr Bennett-Jones' statement “that his confidential reliable sources informed him that the Appellant’s name was on the Pakistan Passport Control List, and so the Appellant would face arrest as a consequence of return” [44]. He concludes that the presence of his name on a Passport Control List (“the List”) is not a source of real risk on return [47].

Grounds of Appeal

12. The first Ground relates to the expert’s opinion that the appellant is on the Passport Control List. It is submitted that despite his reservations, the Judge appears to accept that he is on the List but failed to address the expert’s evidence that such would mean certain arrest on return. Based on the consequences of arrest, it is argued that he has erred in his assessment of risk.

13. The second Ground is that the Judge erred in his approach to credibility. It is submitted that he makes piecemeal attacks on the credibility of aspects of the claim without considering it in the round. This tarnishes his consideration of the expert evidence. The proper approach would have been to consider the appellant’s evidence in light of the expert’s view that he was on the List.

14. The final challenge to the Judge’s determination provides a granular critique of a number of his findings concluding that they are unreasonable, speculative, irrational and contrary to the expert evidence. It is submitted that the Judge failed to address the expert’s unchallenged and controversial evidence. The appellant states that the Judge has applied the wrong standard of proof.

Findings – Error of Law

First Ground

15. On the key issue of entry on the Passport Control List, the expert states;

[25] “Having been given [KG]’s passport number and CNIC (ID card) number by his lawyer, I enquired from my contacts in Pakistan about [KG]’s status. It turns out he is on the Passport Control List”.

16. He explains why he knows this but that he cannot name his source as he will not put his contact at risk. He concludes;

[47] “Since he is on the Passport Control List, he would be arrested on his return to Pakistan and handed over to the air force which would in the normal course of events court martial and imprison him”.

17. The Judge addresses the List at [47] when he says;

“It follows that the tribunal considers that the presence of the Appellant’s name on a Passport Control List, whether current or obsolete, is not a source of real risk on return. The Appellant himself stated that he believed that any interest in him would die down”.

18. In our view, it is clear from this paragraph that the Judge accepts the evidence that the appellant is on the Passport Control List; the paragraph is phrased in the present tense, not conditional. Nowhere does the Judge state that he is taking the appellant’s case at its highest or in the alternative.

19. The Judge states that “it follows” that being on the List is not a source of risk because he has highlighted “the lack of specific evidence of the effect of the Appellant’s name appearing” on it [45] and the finding that no visits from the authorities were made to his family and friends after 2010 [46]. Based on this latter point we infer that the Judge finds that whilst he is on the List there is no current interest in him.

20. However, in his report, Dr Bennett-Jones explains that the List includes “deserters from a defence or a security force or strategic organisation” (para 23) and that those on the List “would certainly be arrested on their return to the country” (para 24). While the expert acknowledges that more is known about the conditions in civilian prisons in Pakistan, he refers to a 2015 New York Times article written by a “highly credible” journalist which reported that “dozens of detainees had died in military detention in Pakistan amid accounts of torture, starvation and extrajudicial execution from former detainees, relatives…” and that Amnesty International “had received reports of more than 100 deaths in military custody in 2014” (para 36).

21. Despite the fact that the Judge quoted the expert’s opinion that arrest was certain [44], at no point does he address the consequences of arrest as part of his risk assessment. We agree with the submission that this is a material error of law and as such the appellant succeeds under the first Ground.

Second and Third Grounds

22. Having found that the appeal succeeds on Ground 1, we address the remaining Grounds more briefly. We find that that the Judge erred in his approach to credibility. The advice provided by Wilson LJ in Mibanga v Secretary of State [2005] EWCA Civ 367 is instructive. He accepts that experts cannot usurp the fact-finder's function in assessing credibility but goes on to say;

[24] “What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence”.

23. We are satisfied that the judge reached negative credibility findings first, before considering the expert evidence, in particular at [44] to [47] where the appellant’s inclusion on the List is discussed. As his starting point was not the certainty of arrest as opined by Dr Bennett-Jones then this is likely to have tainted his approach.

24. There are a number of elements of the appellant’s account that are addressed by the expert but are rejected by the Judge; rejection is not predicated on lack of expertise or research but appear to be based on the Judge’s knowledge or speculation. For example, the Judge notes the expert thought it possible that the Taliban had approached the appellant but goes on to make his own finding that they would not be interested because they had no aircraft at the time and he was not working on weapons [29]. A further example is that the Judge finds that police would not have dismissed the appellant’s approach due to their own fear as opined by the expert; instead he posits that they would have welcomed information about the Taliban [31].

25. His rejection of the expert’s evidence whilst describing it as uncontroversial has the potential to infect his decision and to impact on his view of the appellant’s credibility. For this reason, the decision must be set aside with no findings preserved.

Conclusions – Error of Law

26. For the reasons explained above, we are satisfied that the Grounds are made out and that the Judge’s decision is vitiated by a material error of law.

27. In respect of relief, we take into account that this is a case that has already been remitted to the First-tier Tribunal on one occasion. We do not consider this appeal to be one where the extent of the judicial fact-finding requires the case to be re-heard by the First-tier Tribunal for a third time. Applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, we are satisfied that it is appropriate for the appeal to be retained by the Upper Tribunal.

Notice of Decision

The decision of the First-tier Tribunal involved the making of a material error on a point of law.

That decision is set aside with no findings preserved.

Directions

1. The remaking of this appeal is to be listed for the first available date at Field House with a time estimate of 3 hours.

2. Any updating evidence either party wishes to rely upon must be electronically filed with the Upper Tribunal and served on the other party 21-days prior to the remaking hearing.

3. The appellant is to file and serve a skeleton argument, if so advised, no later than 14 days before the resumed hearing.

4. The respondent is to file and serve a skeleton argument, if so advised, no later than 7 days before the resumed hearing.

V S Rae-Reeves

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 December 2024