SK & AK (Pakistan) v Secretary of State for the Home Deparment
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Lindblom |
| Judgment Date | 19 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1468 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C5/2015/1268/9 |
| Date | 19 November 2015 |
[2015] EWCA Civ 1468
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Burnett
Lord Justice Lindblom
C5/2015/1268/9
Ms S Jegarajah & Ms Pinder (instructed by Wimbledon Solicitors) appeared on behalf of the Applicant
On 11th December 2014 the Upper Tribunal Immigration and Asylum Chamber promulgated its Determination in the case of these two applicants and dismissed their appeals from the First-tier Tribunal. The First-tier Tribunal n turn had rejected their appeals against the refusal of the Home Office to grant them asylum and humanitarian protection. The Determination may be found at neutral citation [2014] UKUT 569 (IAC).
The applicants are brother and sister and are Christian Pakistani nationals. They practised their faith in Pakistan before coming to the United Kingdom. Since arriving in the United Kingdom they have become involved in Evangelical churches and are described by Ms Jegarajah, who appears on their behalf this morning, as born-again Christians.
The determinations of UTIAC stands as country guidance for claims by Pakistani Christians. This is their application for permission to appeal. As is usual in cases relating to country guidance the application has come before a court for oral hearing without an intermediate stage of determination on the papers.
Both applicants arrived in the United Kingdom in March 2011. They were Tier 4 students, with leave to remain until June 2012. On 10th June 2011 they made their applications for asylum. The Home Office refusal decision is dated 8th July 2011. I should mention that the balance of the applicant's family, who are also practising Christians, remain in Pakistan. That includes AK's wife and son.
The claim for protection evolved in the course of the application to the Home Office and the proceedings in the First-tier Tribunal and in UTIAC. The application was originally advanced on grounds which rested upon claims of ill treatment in Pakistan. Those claims were rejected by the First-tier Tribunal. Adverse credibility findings were made. These alleged historic problems formed part of the material before UTIAC but were not independently relied upon in support of the claim that these applicants would be at material risk were they returned to Pakistan.
The case advanced before UTIAC was that since coming to the United Kingdom the applicants had become Evangelical Christians who would be unable to avoid proselytizing in Pakistan in accordance with their deeply held convictions. In those circumstances they would be exposed to material risk.
At the heart of the argument was a distinction between what might be described as the "quiet practice of Christianity in Pakistan" and its public advancement. Such public advancement would include seeking Muslim converts.
Ms Jegarajah, in the course of her submissions this morning, has further identified what she submits is the real issue in this case. It is that even if the applicants did not evangelise publicly in Pakistan, given that they live their lives according to the Gospels, in private conversations they would inevitably discuss their Christian faith. In those circumstances, she submits, the material risk would arise.
The three grounds of appeal advanced in the appellant's notice against the Determination of UTIAC are these:
(i) UTIAC failed to differentiate between the applicant's historical claim of persecution and that based upon their faith as developed and manifested in the United Kingdom. (ii) UTIAC was wrong not to draw a distinction between potential activities, namely evangelising and proselytizing on the one hand and/or preaching on the other. It was suggested in the grounds that the applicants would not be able to suppress their need to speak out publicly about the Gospels, that is to say evangelise and proselytize.
(iii) UTIAC was wrong to conclude on the evidence that the applicants would not go out in Pakistan and preach their religion in public.
As I have already indicated, the focus of the submissions we have received this morning was on risk that would arise as a result of private activities of the applicants, that is to say talking about their Christian faith in the social circumstances in which they found themselves.
Ms Jegarajah submits that the Tribunal made no proper findings about whether, given an understanding of the personal and direct relationship of these applicants with the bible which informs their way of life as born-again Christians, their innate personality would attract risk.
The UTIAC hearing extended over five days. The appeal was heard by two very experienced judges in that Tribunal, Upper Tribunal Judge Peter Lane and Upper Tribunal Judge Kekic. The Determination itself extends over 75 single-spaced typed pages of A4. There follows a series of appendices summarising the oral evidence, the submissions and a number of cases relied upon by the parties. Ms Jegarajah had placed before the Tribunal a number of cases from around the world, including Australia, Canada and New Zealand which concerned the position of Christians in Pakistan. In particular, this morning she has drawn our attention to the decision of the New Zealand Immigration and Protection Tribunal in AG (Pakistan) [2012] NZIPT 800245, which was one of the cases summarised by UTIAC in the appendix to which I have referred.
Those appendices, as it happens, covered another 60 closely typed pages. The country guidance itself is found between paragraphs 240 and 247 of the Determination. Its application to the circumstances of the appellants is considered between paragraphs 248 and 262. As is usual in country guidance cases, an enormous volume of material relating to the country and the position of the threatened group in question was placed before UTIAC. Much of it is summarised in the Determination. The Tribunal had the assistance of appropriate expert evidence.
Permission to appeal was initially refused by UTIAC itself. Having dealt with one or two discrete points raised in the grounds Judge Kekic, who dealt with the application for permission to appeal, said:
"The Tribunal conducted a thorough assessment of the claim in the context of the background evidence and reached a sustainable conclusion. No arguable error of law has been identified and there is no other compelling reason for the matter to be heard."
The arguments developed by Ms Jegarajah, both in her skeleton argument and orally this morning, have delved deeply into individual aspects of the evidence which was before UTIAC, both from lay witnesses including the applicants and their pastors and also from the experts.
Two observations are called for from the outset. First, UTIAC is not only a specialist Tribunal but one with long experience in dealing with and evaluating large volumes of material to produce country guidance dealing with risk. They are expert in applying such country guidance to the particular individual circumstances of appellants who appear before them. For the reasons given in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, in Secretary of State for the Home Department v Akaeke [2005] EWCA Civ 947 and R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, permission to appeal in such cases will be granted sparingly. These cases are fully discussed in the notes to CPR 52.3.11. Secondly, as Ms Jegarajah readily accepted, the Court of Appeal is not concerned with disagreements about factual conclusions made by a court or tribunal which has heard the evidence. The correct approach of an appellate court when invited to interfere with the factual findings of a trial judge was restated (not for the first time) by the Supreme Court in McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477 and is accurately summarised in the headnote:
"It is a long settled principle stated and restated in domestic and wider common law jurisprudence that an appellate court should not interfere with the...
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