Upper Tribunal (Immigration and asylum chamber), 2024-03-13, UI-2022-005992
| Appeal Number | UI-2022-005992 |
| Hearing Date | 06 March 2024 |
| Date | 13 March 2024 |
| Published date | 28 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI- 2022-005992
First-tier Tribunal No: PA/50133/2021
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-005992 |
|
|
First-tier Tribunal No: PA/50133/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 13th of March 2024
Before
UPPER TRIBUNAL JUDGE HANSON
Between
UY
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: In person.
For the Respondent: Ms Young, a Senior Home Office Presenting Officer.
Heard at Phoenix House (Bradford) on 6 March 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
-
The appellant appeals with permission a decision of First-tier Tribunal Judge Hatton (‘the Judge’) promulgated on the 6 October 2022, in which the judge dismissed his appeal against the refusal of his claim for international protection and/or leave to remain in the United Kingdom on human rights grounds.
-
The appellant is a citizen of Pakistan born on the 29 June 1981 who claims to face a real risk on return to Pakistan as a result of his agnostic beliefs and having entered into a mixed caste marriage in Pakistan. Although the appellant also refers to the UAE that was the country from which he and his family travelled to the UK and where he was previously employed rather than the country to which the Secretary of State is likely to return him, which will be his home state of Pakistan.
-
The appellant’s wife and three children are dependants on his claim.
-
Before the Judge the appellant was represented by Mrs A Choudhry a very experienced and competent barrister in the field of immigration and asylum law.
-
Having considered the documentary and oral evidence and submissions made the Judge sets out his findings of fact from [28] of the decision under appeal. The Judge divided his assessment into considering the two core issues, fear of persecution based on religious belief, set out between [33] – [80] and fear of persecution based on inter-caste marriage between [81] - 88], and the question of whether there was any real risk to the appellant if returned to Pakistan which was considered at [89] – [94].
-
The Judge’s conclusions, having assessed the evidence, are that the appellant’s credibility had been undermined so significantly that the Judge was unable to accept the substance of his claim [95], but that had the appellant not been found not to be credible the Judge did not accept his account of his fear on return to Pakistan and did not accept he had established a well-founded fear of persecution [96], that the appellant is not entitled to a grant of Humanitarian Protection as he had not established a well-founded fear of persecution [97], and that his claims pursuant Articles 2 and 3 ECHR fell in line with the asylum claim [98].
-
In relation to Article 8 ECHR the Judge’s assessment of this aspect of the appeal is set out in [99]. In that paragraph the Judge finds the appellant had failed to establish either private or family life in the UK recognised by Article 8(1). In the alternative, to assess the situation if a protected right was engaged and when considering the proportionality of any interference with such right from [103] -[112], the Judge concludes that any interference is proportionate.
-
The appellant sought permission to appeal which was refused by another judge of the First-tier Tribunal and on a renewed application initially by the Upper Tribunal. It transpired, however, that addendum grounds of appeal dated 22 July 2023 had not been seen by the Upper Tribunal Judge who refused permission resulting in that decision being set aside. Following further reconsideration, permission to appeal was granted by Upper Tribunal Judge Kamara on 9 August 2023 on the basis the amended grounds are arguable.
-
Although the appellant was previously represented he has for some time communicated with the Upper Tribunal is a litigant in person and appeared as such before me. As a result of certain concerns expressed in the amended grounds of appeal care was taken to explain the procedure to the appellant that will be adopted at the error of law hearing and he was given ample opportunity to make such representations as were required, relevant to the issues. The appellant was assisted by a McKenzie Friend, LA, who was able to sit by him, who took detailed notes, and was able to speak to the appellant and assist as required. I am satisfied the appellant received a fair hearing in relation to this appeal.
-
The appellant has also produced two additional pieces of evidence, a letter from Humanists UK dated 31 May 2023 written by a Yehudis Fletcher and a letter from an organisation described as the Council of Ex-Muslims of Britain dated 5 May 2023 written by a Mr Ali Malik. As neither of these documents was even in existence at the date of the hearing before the Judge, and could therefore not have been considered by the Judge when assessing the evidence that had been provided, it was decided the question of whether the Judge had erred in law would be considered on the basis of the material the Judge had been asked to consider. A judge cannot be criticised for not considering evidence that was not made available as it did not even exist.
-
That approach does not prejudice the appellant for if material error of law is found in the decision of the Judge and the matter proceeds to a further substantive hearing the new evidence can be considered on the next occasion as part of the appellant’s evidence or, if no material error of law is found, the new material may enable the appellant to make a fresh claim which can be considered by the Secretary of State on its merits.
Discussion and analysis
-
At the outset of the hearing the appellant was referred to the judgment of the Court of Appeal in Volpi v Volpi [2022]EWCA Civ 464 at [2] in which that Court found:
Appeals on fact
-
The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
-
If authority for all these propositions is needed, it may be found in Piglowska v Piglowski [1999] 1 WLR 1360; McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29; Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600; Elliston v Glencore Services (UK) Ltd [2016] EWCA Civ 407; JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176, [2019] BCC 96; Staechelin v ACLBDD Holdings Ltd [2019] EWCA Civ 817, [2019] 3 All ER 429 and Perry v Raleys Solicitors [2019] UKSC 5, [2020] AC 352.
-
This approach has been repeated in the more recent decision of the Court of Appeal in Hafiz Aman Ullah v Secretary of State for the Home Department [2014] EWCA Civ 201 in which Lord Justice Green in giving the lead judgement, with which the other members of the Court agree, writes:
UT's jurisdiction and errors of law
Sections 11 and 12 TCEA 2007 Act restricts the UT's jurisdiction to errors of law....
To continue reading
Request your trial