AW (Sufficiency of Protection) Pakistan

JurisdictionUK Non-devolved
JudgeLord Bannatyne
Judgment Date11 November 2010
Neutral Citation[2011] UKUT 31 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date11 November 2010

[2011] UKUT 31 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Lord Bannatyne

SENIOR IMMIGRATION JUDGE Storey

Between
AW
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the appellant: Mr G P McGowan, Solicitor

For the respondent: Mr K Kyriacou, Home Office Presenting Officer

AW (sufficiency of protection) Pakistan

1. At paragraph 55 of Auld LJ's summary in Bagdanavicius [2005] EWCA Civ. 1605 it is made clear that the test set out in Horvath [2001] 1 AC 489 was intended to deal with the ability of a state to afford protection to the generality of its citizens.

2. Notwithstanding systemic sufficiency of state protection, a claimant may still have a well founded fear of persecution if authorities know or ought to know of circumstances particular to his/her case giving rise to the fear, but are unlikely to provide the additional protection the particular circumstances reasonably require (per Auld LJ at paragraph 55(vi)).

3. In considering whether an appellant's particular circumstances give rise to a need for additional protection, particular account must be taken of past persecution (if any) so as to ensure the question posed is whether there are good reasons to consider that such persecution (and past lack of sufficient protection) will not be repeated.

DETERMINATION AND REASONS
1

This is an appeal against the decision of the Immigration Judge dated 20 March 2009 refusing the appellant's appeal on asylum grounds, humanitarian protection grounds and on human rights grounds.

Background
2

The appellant is a national of Pakistan born on 5 November 1966. He claims to have left Pakistan on 16 November 2008 and to have flown to Paris. He left France on 16 December 2008 and entered the United Kingdom concealed in a lorry. He claimed asylum on 18 December 2008. For reasons contained in the Home Office letter dated 5 February 2009 his claim for asylum was refused and it was said he did not qualify for humanitarian protection. It was also concluded that the United Kingdom would not be in breach of our obligations under the European Convention of Human Rights (ECHR) if he was removed to Pakistan.

3

The appellant then appealed under s.82 (1) of the Nationality, Immigration and Asylum Act 2002 and that appeal was heard at Glasgow on 17 March 2009.

The basis of the appellant's claim
4

The basis of the appellant's claim was as set out in his statement. That statement was set out by the Immigration Judge in the following terms:

“3. He is a Sunni Muslim who last lived in Miranshah which is North Waziristan in Pakistan. He was employed as a police officer. He was married and they have one daughter who now lives with his mother since his wife was killed on 28 September 2008. His brother was killed by the MQM on 25 July 2008.

4. The reason he claims asylum is because of his fear of the MQM who have already killed his wife and brother because of his activities as a police officer against them.

5. He joined the police in October 1991 and worked in Karachi in Sindh Province.

6. His problems began on 12 May 2007 when a number of Pashtun speakers demonstrated about the sacking of the Chief Justice of the Supreme Court. The incident turned nasty and vehicles were burned and people were killed. His superiors ordered that he release the people who had been involved in the violence. They were MQM supporters and he was not prepared to release them.

7. During 2008 the Home Minister issued a circular order that all police stations in Karachi called criminal procedure 144 which prohibited processions and public meetings and graffiti. It also prohibited wall chalking or graffiti and he was responsible in his area for overseeing the issue of wall chalking. During this period his own house was wall chalked and in particular it was written that ‘he who was a traitor to the leader deserves to be killed’.

8. He arrested some people for wall chalking who were writing on the wall of his house. He continually had to clean up the wall.

9. On one occasion his brother caught people wall chalking outside their home and tried to stop them. Within two days he was murdered. His brother lived in the same house as him. There were two suspects who were shooters for the MQM. They were taken to court and then released on bail. After they got bail he tried to have them detained again and he wrote various applications but the MQM leaders approached him in order to try and settle the matter. Rauf Siddique, the Minister in Charge for Work and Industry and Faruk Sattar, now Overseas Minister, sent their people to see whether or not a settlement could be arranged. He refused to accept a settlement. He believes these two men were also responsible for the shooting at his home and the killing of his wife when she was 8 months pregnant on 28 September 2008.

10. On that day he was up on the roof feeding birds and his wife was in the ground floor. Suddenly he could hear shouting and swearing and then shots. His neighbour said that there were four men and that one of these was [AD, the senior MQM official in charge of Mahmoudabad].

11. After his wife's death a report was filed against him on 21 October 2008 accusing him of kidnapping the two MQM suspects under section 365 of the Pakistan Penal Code.

12. He cannot go to another part of Pakistan to hide from the MQM because they have different groups and departments throughout Pakistan. They have a funding group, an intelligence group, an operations group, and they would not spare him. They killed four of his friends in Lahore at different times and they have reached throughout Kashmir. There is also the case against him which means that there is nowhere in Pakistan that is safe.

13. He cannot stay hidden forever and it is for that reason that he fled the country as soon as he received information from his friend and that the MQM had used its influence to start a case against him. If he was to be caught and imprisoned he would almost certainly be ill-treated in custody and probably killed. He understands that to date the MQM has killed over 200 police officers who have stood up against them in Karachi. They have a known history of attacking police officers' homes. They are a well known organisation, militant and political. In terms of the refusal letter the MQM were in full power from 1999 to 2007. He comments on various aspects in the refusal letter. He says that the MQM leader said he should settle for they could not guarantee his safety or be responsible for the consequences. The judges are also in the hands of the MQM who have killed many judges and lawyers. FIRs are circulated throughout the country and he could be arrested anywhere in the country. The FIR is not just limited to his own province. Any police authority would return him to Sindh. He has produced a number of documents to the Home Office”.

The evidence
5

Before the Immigration Judge the appellant adopted his statement and no oral evidence was led. However, in support of his claim the appellant produced a number of documents. They included extracts from a Country of Origin Information Report (COIR) dated November 2008 which at paragraph 9.04 noted that the police were politicised. Further, at paragraph 9.05 it was noted that corruption within the police was rampant and that police charged fees to register genuine complaints and accepted money for registering false complaints. Paragraph 9.06 stated that there was a climate of impunity. In addition at paragraph 18.01 it noted that the law provided criminal penalties for official corruption but the Government did not implement the law effectively and officials frequently engaged in corrupt practices with impunity. Paragraph 18.02 observed that corruption charges were frequently used as a tool to punish opposition politicians or induce them to join the ruling PML-Q.

6

Other items of evidence adduced by the appellant before the Immigration Judge were documents from 7/1 onwards relating to the activities of the MQM. The Article 8/1 says that the MQM has been widely accused of human rights abuses since the founding of it two decades ago. They have been heavily involved in the widespread political violence that has racked Pakistani's southern Sindh Province, particularly Karachi. Amnesty International has accused the MQM-A and a rival faction of summary killings, torture and other abuses. The MQM-A is one of two factions of the MQM and is led by the founder of the MQM Altaf Hussain. It is said in document 8/1 that the MQM has become the dominant political party in Karachi and Hyderabad, another major city in Sindh. Document 10/1 says that a US Think Tank lists the MQM as a militant outfit. Document 19/1 indicates that the MQM retained total political control of Karachi and monopolised the government of Sindh. Document 25/1 noted that the MQM decided to join the Federal Government and it was given four slots in the cabinet. A source in the government said that MQM was playing an important role in defusing the Pakistan/India tension following the Mumbai terrorist attacks. Government circles, the official said, were highly appreciative of the efforts being made by the MQM for the normalisation of Pakistan/India ties. The MQM leader said that they were playing a role in improvement of Pakistan/India ties and their party would continue playing a role in bringing a thaw to the Pakistan/India relationship.

7

Lastly, certain documents were lodged establishing the appellant's wife's death and the death of his brother.

8

The Immigration Judge accepted at paragraph 24 of his determination that there was little or no challenge to the appellant's credibility.

9

The Immigration Judge from paragraph 25 of his determination begins his detailed consideration of the case. He takes as his starting point that in general it has been held by the Tribunal that there is a...

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