United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005258
	First-tier Tribunal No: PA/56134/2023 LP/04940/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

25 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE LANDES

DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

 

Between

 

IT

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant Not present

For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

 

 

Heard at Field House on 29 January 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

Introduction

1.              The Appellant appeals with permission against the decision of the First-tier Tribunal promulgated on 9 July 2024 dismissing his appeal against the respondent's decision dated 21 August 2023 to refuse his international protection and human rights claims made on 6 May 2022.

2.              We have continued the order for anonymity made by the Upper Tribunal when granting permission. In continuing the order for anonymity, we have had regard to Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private. We have considered the strong public interest in open justice. However, in this case it is outweighed by the United Kingdom's obligations towards applicants for international protection and the need to protect the confidentiality of the asylum process.

Background

3.              The Appellant is a citizen of Pakistan and claims that he would be at risk if returned to Pakistan because of his religious beliefs, or imputed religious beliefs, after having authored a pamphlet supporting expanded abortion rights. He entered the United Kingdom as a visitor on 25 March 2022 and claimed asylum on 6 May 2022.

4.              In summary, the Appellant's case is that following the local publication of his pamphlet he became subject to the adverse attention of a particular religious leader 'PKS' and their followers. He says that his family home was attacked and that he had to flee to another part of the country. He reports that followers of this religious group have been trying to find him, and that following several months living discreetly in Pakistan he travelled to the United Kingdom with the aim of claiming asylum.

5.              The Appellant claims that he has a well-founded fear of persecution on religious grounds, that there is not a sufficiency of protection for him in Pakistan, and that internal relocation is not a reasonable option for him, or alternatively that he qualifies for humanitarian protection, and that refusal of his claim is a breach of Articles 2 and 3 of the ECHR.

Grounds of Appeal

6.              The grounds are not divided but for ease of reference we have split them into five parts.

7.              The first ground of appeal (paragraphs 5 - 4.2) is that the First-tier Tribunal judge - ("the judge") - failed to consider the CPIN as a whole and if he had done so he would have found that the police do not have the capacity to protect the Appellant.

8.              The second ground of appeal is that the judge erred in drawing a negative inference from the fact that no evidence of the attack on the Appellant's family home such as videoing the aftermath had been obtained, by failing to adequately consider the reasons why this might be the case (paragraph 6)

9.              The third ground of appeal (paragraph 7) is that the judge failed to adequately consider the YouTube videos of 'PKS' and his supporters and in particular failed to adequately consider their religious aspects.

10.          The fourth ground of appeal (paragraph 8) is that the judge failed to consider internal relocation in the light of the CPIN which indicated that for certain types of threats the person could be tracked down and killed years later.

11.          The fifth ground of appeal (second paragraph 8) is that the judge failed to consider the appellant's explanation for not claiming asylum on arrival.

12.          All grounds are opposed by the Respondent.

Proceeding in Absence

13.          At 13.33 on 28 January 2025 the Appellant contacted the Tribunal by email to say that he was temporarily unwell and unfit to attend the hearing. He requested that his case be dealt with on the papers without a hearing.

14.          On 28 January 2025 Upper Tribunal Judge Landes refused this application and directed that the hearing would commence as notified on 29 January 2025, and at that hearing the Tribunal would consider whether or not to proceed in the absence of the Appellant. Further, the Appellant was directed to contact the Tribunal to request a postponement of his appeal if that was what he wanted.

15.          The case was listed for 10.00 on 29 January 2025 and the case was called on no earlier than 11.00. The Clerk informed us that the Appellant was not in the building and there had been no contact from him in response to Upper Tribunal Judge Landes' ruling the previous day.

16.          Ms Cunha on behalf of the Respondent submitted that we should proceed to deal with the case in the absence of the Appellant.

17.          We considered whether or not to proceed in the absence of the Appellant in light of Rule 38 of The Tribunal Procedure (Upper Tribunal) Rules 2008 and the circumstances of this case.

18.          We determined that the Appellant had been notified of the hearing and that it was in the interests of justice to proceed with the hearing. In making that judgment we deduced from the lack of response from the Appellant to Upper Tribunal Judge Landes' ruling the previous day, and in light of his articulate and considered initial email, that the Appellant had voluntarily foregone the opportunity to apply for his case to be dealt with at a future date when he is not unwell.

19.          We were mindful of being fair to both parties, including the Respondent; of the public interest in expeditious disposal of cases; of the importance of finality of decisions; that there was no evidence due to be heard today; and that the Appellant had articulated in writing his reasons for appealing. We determined that these factors outweighed the absence of opportunity for the Appellant to orally put his case or respond to the Respondent's submissions, and we reminded ourselves that as an expert Tribunal we were equipped to put points of challenge to the Respondent's Senior Presenting Officer where appropriate.

20.          As such we proceeded to consider the case on the basis of the papers and oral submissions on behalf of the Respondent.

Findings - Error of Law

Erroneous approach to assessing credibility (Grounds 2 and 5)

21.          The judge set out as part of their findings the following at [21]:

"The Appellant produced no evidence of the damage which he said was caused to the family home by PKS supporters. While it is obvious that it would have been dangerous to film the attack while it was taking place, no sufficient reason was provided to explain why the aftermath cannot have been filmed. If there was, as the Appellant claimed, substantial damage, that was a property crime which should have been reported to the police. Thus there was no evidence of failure to act on the part of the police."

22.          Ms Cunha, whilst not making any concessions, described this finding as "problematic" in her submissions.

23.          It is clear law that there is no requirement for corroborative evidence in asylum claims. On the other hand, the absence of corroborative evidence can, depending on the circumstances, be of some evidential value; if it could reasonably have been obtained and there is no good reason for not obtaining it, that can be a matter to which a tribunal could give appropriate weight. The judge did not explain why he concluded that no sufficient reason had been provided to explain why the aftermath could not have been filmed - on the face of it such finding does not take into account that, as the appellant says, this was a traumatic incident when at the time there was no thought of claiming asylum. Bearing in mind the lower standard applicable in asylum claims, we consider that the judge either effectively proceeded on the basis that corroborative evidence was necessary - see discussion in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216 - or alternatively his findings on the point are inadequately reasoned.

24.          The appellant also claimed (at ground 5) that the judge failed to consider his explanation for not claiming asylum on arrival. However the judge did consider the appellant's explanation and he gave perfectly valid reasons for rejecting it. As the judge said, it is reasonable to expect a person in fear for his life to seek help at the first opportunity and consequently the judge's finding that it damaged the appellant's credibility that he did not claim asylum on arrival, was one which was open to him and adequately reasoned. There is no error of law as claimed at ground 5.

25.          When the judge considered the appellant's evidence in the round at [25] he concluded "the appellant failed to prove that PKS followers had the power he attributed to them, made threats to him or caused the property damage he claimed." Whilst his reasoning would have been informed by the damage to the appellant's credibility caused by the delay in claiming asylum, it would also have been informed by his findings on the lack of evidence of damage to the family property, which we have found to be made in error of law. The judge's findings on the appellant's credibility are therefore materially affected by the error of law. However this will only be material overall if the judge's findings on sufficiency of protection/internal relocation were made in error of law or were infected by the erroneous credibility finding.

Sufficiency of Protection (Ground 1)

26.          The judge addresses sufficiency of protection at [20]:

"The Appellant's case needs to set in context of the country background evidence. Here the main source is the CPIN, May 2023, Actors of Protection: in general the state is both willing and able to offer protection. This is of obvious importance to large country which has a number of religious minorities. The Appellant said in effect that it is hard to imagine what Pakistan is like and no doubt there is truth in that. The problem is that the Appellant produced no evidence at all to show that he could not access protection against aggressive followers of PKS. He claimed that the police did not involve themselves in religious cases but the CPIN report shows otherwise. The tribunal finds that the police are willing to act in religiously-based cases."

27.          The grounds of appeal refer to a CPIN dated July 2024 and a BBC News article dated 21 June 2024. These documents postdate the First-tier Tribunal hearing and thus cannot have been available to the judge when he made his decision. As such these documents cannot be relied on in the way the Appellant wants to use them to support his appeal.

28.          The broader thrust of the Appellant's first ground of appeal is that the judge failed to consider the CPIN that he did have access to properly when addressing sufficiency of protection. Specifically the Appellant says that although the police may be willing to assist people in his situation, they do not have the capacity to do so.

29.          We have carefully considered the document that the judge did have access to - "Country Policy and Information Note. Pakistan: Actors of protection. May 2023" - "the CPIN ".

30.          In particular we considered it in light of the judge's findings that " in general the state is both willing and able to offer protection" (emphasis added), and that "the police are willing to act in religiously-based cases".

31.          The judge does not address the capability of the state to offer protection in religiously-based cases of the kind that the Appellant puts forward. It must be appreciated that the Appellant is not saying simply that he would be the victim of religious violence, rather that he would be treated as a blasphemer. We find that in light of the CPIN and the Appellant's case, that it was an error of law not to do so.

32.          In making this finding, we have considered the following passages in particular from the CPIN (emphases added):

a.        Executive summary: "The country evidence ... indicates that, despite some failings, in general, the state is both willing and able to offer sufficient protection. ... There is a functioning police force and judiciary, which are generally accessible."

b.       2.1.12: " Police efficacy varies by province. As noted by the Overseas Security Advisory Council (OSAC), overall efficiency is limited due to lack of resources, insufficient and outdated equipment, low salaries and poor training, which can lead to flawed investigations. Police capabilities are affected by interference and influence from superiors, political actors, security forces and the judiciary. Police are susceptible to corruption and petty bribery and, according to surveys by Transparency International, are perceived to the most corrupt public service at the national level."

c.        4.2.6: "The January 2022 DFAT report noted that 'Police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary.' The same report noted that: 'Some groups are denied adequate state protection on discriminatory grounds...successful prosecution for politically motivated or sectarian violence is rare. ...

d.       4.2.7: "The OSAC commented on the police forces that operated across the country, excluding Balochistan: ' While Islamabad has a large police force, resource constraints affect the efficacy of police operation. Low salaries and a lack of equipment are pervasive issues throughout the country...'

e.        4.2.7: [Note the Appellant lived in the Punjab region.] "The Punjab police clearly lack funds, resources, and training along with the rest of the Pakistani Police Services..."

f.         7.2.2 Civil society organizations reported judges were reluctant to exonerate individuals accused of blasphemy, fearing vigilante violence. [Although this relates to judges it is relevant because the appellant's case is that the local police would not get involved fearing that they would be branded blasphemers themselves.]

33.          The judge stated that "the Appellant produced no evidence to at all to show that he could not access protection against aggressive followers of PKS". However the evidence of the Appellant in his SEF Interview (page 56 of the First-tier Tribunal's bundle) in answer to the question "When the threats started did you try to report it to the police?", he is recorded to answer "My father had done that, but as you know there is no law in Pakistan and no security so they didn't do anything." This is evidence that the judge needed to weigh.

34.          The judge has failed to meaningfully engage, or alternatively has failed to give adequate reasons, when assessing sufficiency of protection, with the particular circumstances of the Appellant who, on his case, has been accused by non-state actors in his home area of Punjab, of, in effect, having committed blasphemy. This is both in terms of a consideration of the capability of the police, and also in his consideration of the Appellant's evidence.

Failure adequately to consider the You Tube Videos (ground 3)

35.          At [22] the judge considered the Appellant's claim to be unable to relocate within Pakistan. The judge said

"The Appellant claimed that he could not relocate within Pakistan because he would eventually be found by PKS supporters. The Appellant produced no evidence to show that PKS or his supporters have any political influence. The Appellant said that there were PKS clips on YouTube, but he produced none himself. Taking up the Appellant's invitation, the tribunal has checked on YouTube and there are indeed PKS videos. These were of elaborate religious gatherings, with loud music. There was no English version. There was nothing to indicate any political connection."

36.          We note that the Appellant did not provide any specific YouTube videos or links to the Judge; did not provide an English translation of any video; and did not suggest that he as an individual was mentioned or referred to in the videos.

37.          Whilst it is generally unwise for a judge to do their own research outside the material in the bundle, on this occasion the judge was invited to do so by the Appellant and there is no record of any objection to this course of conduct from the Respondent .

38.          We find that the judge did not make a material error in his consideration of these videos. Whilst it may be correct that the Appellant wanted to use these videos to evidence the religious influence of PKS and his supporters rather than the political influence, it would have been perverse for the judge to put significant weight on these videos in the light of the facts that: the Respondent had not had an opportunity to comment on them; that they were not in the English language and no translation had been provided; that there was no particular video or videos put forward by the Appellant; and that they did not appear to reference the Appellant.

39.          The judge put very little weight on the YouTube videos, and we find that he was not wrong to do so.

40.          Whilst ground 3 does not demonstrate any error of law, and the You Tube videos do not of themselves without further explanation indicate the reach of PKS supporters, the absence of evidence independent of the Appellant of the reach of PKS supporters does not of itself mean that internal relocation would be safe and reasonable for the Appellant as we discuss when considering ground 4.

Internal relocation (ground 4)

41.          Ms Cunha submitted that what was critical was that internal relocation would protect the appellant. She said the appellant would be able to seek protection in Islamabad, he had lived there for 4 months without any difficulty, and there was no evidence that he was still being pursued by followers of PKS.

42.          However we must consider this matter in light of our findings above and in particular:

a.        The judge's findings on the appellant's credibility are materially affected by an error of law.

b.       On the appellant's case,

                                                              i.       He has produced a pamphlet advocating for expanded abortion rights that has been interpreted as akin to blasphemy by a religious group headed by PKS,

                                                            ii.       This group attacked the Appellant's family home when he was not there and harassed his family trying to locate the Appellant, and

                                                          iii.       The Appellant's family have continued to be harassed by followers of PKS trying to locate the Appellant.

c.        The judge has failed to meaningfully engage, or alternatively has failed to give adequate reasons, when assessing sufficiency of protection, with the particular circumstances of the Appellant who has been accused by non-state actors in his home area of Punjab, of, in effect, having committed blasphemy. This is both in terms of a consideration of the capability of the police, and also in his consideration of the Appellant's evidence.

43.          In light of those findings, we consider that there is force in the Appellant's complaint that the judge did not consider, when considering internal relocation, that the CPIN on internal relocation of April 2023 at 3.3.2 says that although large urban centres offer some anonymity for people fleeing violence by non-state actors "certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later.."

44.          When considering whether the judge erred in not considering the potential persistence of the threat, we remind ourselves that on the Appellant's case the group consider that he has committed blasphemy, they have been persistent in trying to locate him and accordingly the fact that he was not found whilst in Islamabad in hiding does not mean of itself that the Appellant would be safe in Islamabad in the long term. We note that the Appellant said in interview (AIR qn 137) that if he brought his family to where he went the supporters would have followed them and found out where he was. When considering whether relocation would be reasonable and not unduly harsh for the Appellant, bearing in mind the potential persistence of the threat, factors to be considered include whether his family could move to be with him, and that a man with a family would be easier to trace and more visible than a person living alone.

45.          The judge's error relating to the consideration of the capability of police also extends to infecting any adequate consideration or explanation relating to internal relocation. This is because taking the appellant's case at its highest, he remains at relevant risk in all areas of Pakistan, and the error relating to assessing the capacity of the police extends beyond considering Punjab to the whole of Pakistan, including Islamabad, as is evidenced by the CPIN.

46.          Overall we conclude that the judge did err in his consideration of internal relocation taking the case at its highest.

Conclusion

47.          Although we consider that there is no error as alleged at grounds 3 and 5, we find that there is a material error in ground 2, the judge's consideration of credibility. Whilst the judge continued to consider sufficiency of protection and internal relocation, we find that there is an error of law in his consideration of sufficiency of protection (ground 1) and also, taking the Appellant's case at its highest, in the consideration of internal relocation (ground 4). Whilst the appellant did not produce any independent evidence of the reach of PSK, given the CPIN material indicating that particular types of threats are persistent and that a tribunal would need to consider the appellant's family's ability to be reunited with him in the place of relocation, we do not consider that it can be said that on the evidence before the First-tier Tribunal any rational tribunal would be bound to reject the Appellant's claim and therefore we do consider that the judge's errors were material ones. The judge's decision of 9 July 2024 must be set aside in its entirety.

Remaking of the decision

48.          Given the errors we have found relating to the assessment of sufficiency of protection and internal relocation as well as in the assessment of the Appellant's credibility, we consider that there are a considerable number of findings that need to be made in this case such that it is fair and in the interests of justice for it to be remitted back to the First-tier Tribunal for a de novo hearing. In making this decision we have considered the nature and extent of the findings of fact required to remake the decision applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and 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.

The decision of the First-tier Tribunal is set aside and remitted to the First-tier Tribunal at Taylor House to be heard by a different judge. No findings are preserved.

 

 

A Richards

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

21 February 2025