KB (First Appellant) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Dr H H Storey,Judge of the Upper Tribunal |
| Judgment Date | 17 August 2017 |
| Neutral Citation | [2017] UKUT 491 (IAC) |
| Date | 17 August 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2017] UKUT 491 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE HONOURABLE Lord Burns (SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
Dr H H Storey
JUDGE OF THE UPPER TRIBUNAL
For the Appellants: Mr E Fripp, Counsel, instructed by Turpin Miller, Solicitors (Oxford)
For the Respondent: Mr T Wilding, Home Office Presenting Officer
KB & AH (credibility-structured approach) Pakistan
1. The ‘Credibility Indicators’ identified in the Home Office Asylum Policy Instruction, Assessing credibility and refugee status Version 3.0, 6 January 2015 (which can be summarised as comprising sufficiency of detail; internal consistency; external consistency; and plausibility), provide a helpful framework within which to conduct a credibility assessment. They facilitate a more structured approach apt to help judges avoid the temptation to look at the evidence in a one-dimensional way or to focus in an ad hoc way solely on whichever indicator or factor appears foremost or opportune.
2. However, any reference to a structured approach in relation to the subject matter of credibility assessment must carry a number of important (interrelated) caveats, among which are the following:
— the aforementioned indicators are merely indicators, not necessary conditions;
— they are not an exhaustive list;
— assessment of credibility being a highly fact-sensitive affair, their main role is to help make sure, where relevant, that the evidence is considered in a number of well-recognised respects;
— making use of these indicators is not a substitute for the requirement to consider the evidence as a whole or ‘in the round’;
— it remains that credibility assessment is only part of evidence assessment and, as Lord Dyson reminded decision-makers in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at [33], ‘the significance of lies will vary from case to case’;
— in the UK context, use of such a structured approach must take place within the framework of EU law governing credibility assessment, Article 4 of the Qualification Directive in particular; and,
— also in the context of UK law, decision-makers (including judges) by s. 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 are statutorily obliged to consider certain types of behaviour as damaging to credibility.
3. Consideration of credibility in light of such indicators, if approached subject to the aforementioned caveats, is a valid and useful exercise, based squarely on existing learning.
In this decision we seek to say a few things aimed at promoting a more structured approach to evidence and credibility assessment.
The appellants are nationals of Pakistan born in 1950 and 1979 respectively and are of the Ahmadi faith. The first appellant is the second appellant's son. Five days after arrival in the UK on visit visas on 14 December 2014, they made an application for asylum and humanitarian protection. The basis of their case has always been that they are both committed Ahmadis who fled Pakistan following an incident in December 2014 when members of Khatme Nabuwaht damaged the first appellant's shop in Rawlapindi and made threats to harm him. When he and the local branch president of the Ahmadi community went to the police to report the incident the latter showed no interest. He and his mother left for the UK three days later. On 17 June 2015, the respondent accepted that they were Ahmadis but refused their applications. Their appeals came before First-tier Tribunal (FtT) Judge Oakley who on 6 November 2015 dismissed their appeals. On 21 March 2016 Deputy Upper Tribunal Judge (DUTJ) Sheridan set aside Judge Oakley's decision for error of law and remitted it to the FtT. On 13 October 2016 FtT Judge E B Grant again dismissed their appeals, but that decision too was set aside by Upper Tribunal Judge (UTT) O'Connor on 3 February 2017 with a direction that it should be re-made in the Upper Tribunal.
Before UTJ O'Connor, Mr Fripp requested that the case proceed as a vehicle for further country guidance on Ahmadis. UTJ O'Connor gave him permission to draw up a note in support of his position. Subsequently, on consideration of that note, the Upper Tribunal decided that the case should not proceed as potential country guidance.
At the hearing Mr Fripp called three witnesses, Mr Mansoor Shah, Vice President of the Ahmadiyaa Muslim Association UK (AMAUK), the first appellant and Mr A B, a relative of the appellants. The Tribunal had already been informed that the second appellant would not attend to give oral evidence as she was unwell. The evidence of the three witnesses is summarised in Appendix A.
Mr Wilding said the appellants' case turned in large part on their credibility. If they were not credible, that was the end of it. If they were credible about the shop incident, but not about the causes of it, they would not be at risk on return because the shop incident could not be differentiated from an ordinary criminal incident. If however, we believed the shop incident and that it was religiously motivated then they were entitled to succeed in their appeals, as, given their evidence, they would fall within the terms of the country guidance given by the Tribunal in MN and others (Ahmadis — country conditions — risk) CG [2012] UKUT 00389 (IAC). (For convenience the headnote to MN is reproduced in Appendix B.)
Mr Wilding submitted that we should find the appellants not credible because it was implausible that if the first appellant and his local branch president had gone to the police station in December 2014 to report the attack they would have left after only an hour of waiting. Nor was it plausible that within three days he and his mother would have left Pakistan in response to the incident leaving his wife and children behind.
Mr Wilding submitted that even if we accepted the shop incident happened, the first appellant had not established it was a religiously motivated attack. Even though the first appellant was in the shop at the time, nothing happened to him. The evidence of the AMAUK made clear their procedures relied very much on self-reporting. There was only limited filtering of people who asked for reports and there was no monitoring of whether attacks/incidents were religiously motivated. It was just as likely the shop incident was an ordinary criminal matter. The first appellant's evidence was that there were Khatme Nabuwaht posters in a number of places around the area.
Mr Wilding asked that we count against the appellants that despite claiming to leave Pakistan within three days of the incident, the appellants had not claimed asylum on arrival. The significance of the first appellant's answers to questions asked of him about why he had left his wife and children behind was not his failure to try and sponsor them, but the dubious lack of concern it showed about their circumstances. They were still living close by in the same area.
Even if we found the appellants were at risk in their home area, when assessing internal relocation we should attach weight to the fact that his own wife and children still lived nearby without it being suggested they were at risk.
Mr Wilding clarified that the appellants' case was not one about whether return would require them to suppress their religious orientation, since, on their own evidence, they had not hidden their Ahmadi identity and activities when in Pakistan.
As regards the reference by Mr Fripp in his written skeleton argument to “five general points” (see below paragraph 20), he broadly accepted them except that he conceded that the guidance by the Tribunal in MN about the “particular importance” of Ahmadi faith to individuals was simply to be given its ordinary meaning. As regards Ahmadi women and children, whilst their situation might cause them to face extra difficulties (e.g. in not being able to undertake communal worship) their cases would turn on particular facts. There was not a heightened risk in every case.
In reply to questions from the bench, Mr Wilding said he accepted that the first appellant had given a consistent account and that he raised no challenge either as to the sufficiency of detail of his account. The respondent's challenge was purely to plausibility. Mr Wilding said that if the Tribunal found the appellants were telling the truth about the shop incident and it was satisfied that the attack was religiously motivated, then the appellants were entitled to succeed.
Mr Fripp submitted that the appellants' account was credible. The first appellant's account of the incident in his shop as the culmination of years of threats and harassment was consistent with the objective evidence regarding the situation of Ahmadis in Rawalpindi and elsewhere in Pakistan. Non-state actors such as Khatme Nabuwaht conducted a widescale and highly organised campaign against Ahmadis with the complicity of the state. The appellants' case sought to rely squarely on existing country guidance as set out in MN whose principal findings were encapsulated in the statement that Ahmadis were “an oppressed religious minority”.
As regards credibility, the AMAUK evidence lent support to the appellants' case in relation to the appellants' level of engagement with the Ahmadi community. The first appellant held substantial office in his local Ahmadi community in Pakistan over a number of years. The evidence described him as an active member of the Ahmadi community committed to his faith, someone who was both a ‘Musi’ (teacher) and a ‘Quaid’ (leader). That evidence also went to explain why he had come to the adverse attention of the malvis. The AMAUK evidence...
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