Upper Tribunal (Immigration and asylum chamber), 2024-03-12, UI-2023-004363 & UI-2023-004364
| Appeal Number | UI-2023-004363 & UI-2023-004364 |
| Hearing Date | 01 March 2024 |
| Date | 12 March 2024 |
| Published date | 27 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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Case Nos: UI-2023-004364 UI-2023-004363 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case Nos: UI-2023-004364 UI-2023-004363 |
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First-Tier Tribunal Nos: PA/54380/2021; IA/13099/2021 PA/54382/2021; IA/13089/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 12th March 2024
Before
UPPER TRIBUNAL JUDGE FRANCES
UPPER TRIBUNAL JUDGE KAMARA
Between
JM
HM
(ANONYMITY ORDER MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Ms L Giovannetti, KC and Mr D Seddon, KC instructed by Farani Taylor Solicitors
For the Respondent: Mr S Singh KC, instructed by Government Legal Department
Heard at Field House on 1 March 2024
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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The appellants are nationals of India born in 1989 and 1956 respectively. They appeal against the decision of First-tier Tribunal Judge Bird and First-tier Tribunal Judge Beach dated 28 March 2023 dismissing their appeals against the refusal of their protection claims on asylum, humanitarian protection and human rights grounds.
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We shall refer to the first appellant as the appellant in this decision. The second appellant is his mother and she is medically unfit to give evidence. It was accepted by the respondent that she was not fit to be interviewed and, therefore, any decision reached in relation to the first appellant would also stand in relation to the second appellant. The respondent accepted before the First-tier Tribunal (‘FTT’) that the second appellant’s claim would stand or fall with the first appellant’s.
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This is a complex case and the documentary evidence is extensive. We will summarise the appellant’s immigration history, the appellant’s case and the respondent’s case in so far as it is relevant to the context of this hearing in which we consider whether the FTT made a material error of law.
Appellant’s immigration history
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The appellant came to the UK as a student in 2007 and was subsequently granted leave to remain as a highly skilled entrepreneur in 2011. His wife joined him in 2013. Between 2014 and 2018 the appellant, his wife and child (born in 2015) lived in Dubai and made visits to the UK. The appellant’s second child was born in Dubai in 2019. In September 2019, the appellant was granted a business visit visa and entered the UK on 12 September 2019. He was joined by his wife and children.
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The appellant notified the respondent of his need for international protection by letter dated 12 November 2019 and by telephone on 7 January 2020. The appellant attended the asylum screening unit on 24 January 2024 and submitted a detailed statement and exhibits with further representations on 28 February 2020. The appellant was interviewed on 7 September 2020 and made detailed final representations on 12 October 2020. Following the appellant’s application for judicial review, the appellant made updated representations and his protection claim was refused on 31 August 2021.
Appellant’s case
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It is the appellant’s case that he is subject to a politically and religiously motivated campaign by the Indian authorities, presenting him and his mother as public enemies linked to terrorism and organised crime and/or the opposition political parties. The appellant submits the campaign is orchestrated by powerful actors in the ruling Bharatiya Janata Party (‘BJP'), its allies and the nationalist media to serve the political objectives of stoking Hindu nationalist and Islamophobic sentiment for political capital and in order to attack the Congress Party and the Nationalist Congress Party (‘NCP’).
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It is the appellant’s case that his family is targeted by the authorities because his father IM, a prominent Muslim businessman from Maharashtra, was tarred with allegations of connections to Dawood Ibrahim and his criminal organisation D-Company who perpetrated the 1993 Mumbai bombings. In 1995, the Indian Government attempted to extradite IM from the UK on charges of murder and conspiracy to murder. An initial charge in relation to drug trafficking was discontinued by the prosecution. The extradition request was rejected on the basis there was no case to answer.
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The appellant states it is alleged that IM belonged to D-company and, since IM’s death in 2013, the appellant, his mother and brother, have replaced IM to direct the organised crime syndicate which is involved in drug trafficking, human trafficking and financing terrorism. The appellant denies these allegations. On 5 October 2019, the Indian Directorate of Enforcement (‘ED’) issued a summons against the appellant in relation to a criminal investigation under the Prevention of Money Laundering Act 2002 (‘PMLA’). The appellant is accused of laundering the proceeds of IM’s alleged organised criminal activity from the 1980s-1990s.
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In October 2019, the Indian Government initiated criminal proceedings against the appellant, accompanied by high-profile public statements implicating the appellant in Islamic terrorism and organised crime. These statements emanated from the most senior leadership of the extreme Hindu nationalist (‘Hindutva’) BJP, including Prime Minister Narendra Modi. It is the appellant’s case that this campaign, strongly supported by the Hindutva media and other BJP allies, was timed to meet the political imperatives thrown up by the Maharashtra State elections on 21 October 2019.
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It is the appellant’s case that he will face a real risk of serious harm, on account of being Muslim, a member of IM’s family and an imputed political opinion, amounting to persecution. If returned to India, the appellant will face a high profile politically motivated prosecution and unfair trial resulting in pro-longed detention and inhuman and/or degrading conditions of imprisonment. There is a real risk he will be ill-treated and tortured because of the alleged connection with D-Company and his personal characteristics. The appellant is an educated Muslim and first-time inmate who suffers from a speech disability and anxiety. He is at risk from the authorities and members of the public because of the public hostility generated against his family.
Respondent’s case
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The respondent accepted the appellant’s account of the proceedings against IM and the appellant, but did not accept the appellant’s account of the motivation for the criminal proceedings. The respondent did not accept the Indian authorities were behaving abusively as alleged by the appellant or that the appellant would be at risk of persecution or real risk of serious harm.
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It is the respondent’s case that the appellant had failed to show a religious or political motive for the Indian authorities’ interest in him. The respondent submitted the Indian authorities’ interest in IM was motivated by their concern that IM was involved in serious criminal activity and they were not the only national authorities who had that concern. The Office of Foreign Assets Control (‘OFAC’) of the US Treasury Department designated IM as “an international narcotics trafficking kingpin”. The interest of the ED in the appellant had also been motivated by legitimate concerns that the appellant may have been involved in laundering the proceeds of IM’s alleged crimes.
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The respondent submits the appellant does not have a well-founded fear of being persecuted for reasons of religion, membership of a particular social group or political opinion. The motivation for the Indian authorities’ interest in him was not because he is Muslim, a member of IM’s family or for any actual or perceived political opinion on his part, but because the appellant is suspected to be involved in criminal activity. The appellant has failed to establish a Convention reason and he is not a refugee.
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The respondent does not dispute that there is a real risk the appellant will be detained if returned to India. However, the respondent does not accept there is a real risk of ill treatment in detention. The respondent submits that, whilst prison conditions in India are very basic, the appellant has failed to show that they are so poor that exposure to them would expose him to a real risk of the very high level of suffering necessary to engage Article 3 of the European Convention of Human Rights (‘ECHR’).
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Additionally, the appellant’s pre-trial detention would not be over long. The appellant had not shown a flagrant breach of Articles 6 or 9 of the ECHR. The appellant would not be at real risk of serious harm or any breach of his human rights on return to India.
FTT’s findings
In summary, the FTT found that the appellant’s fear of returning to India was not because of any actions against him as a Muslim, or because of any imputed political opinion or because of his...
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