Upper Tribunal (Immigration and asylum chamber), 2013-12-09, DA/00394/2013
| Jurisdiction | UK Non-devolved |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 December 2013 |
| Published date | 16 January 2014 |
| Status | Unreported |
| Appeal Number | DA/00394/2013 |
Appeal Number: DA/00394/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00394/2013
THE IMMIGRATION ACTS
|
Heard at Stoke |
Determination Promulgated |
|
on 29th October 2013 |
on 9th December 2013 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
MOSHIN RAZA SYED
(Anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Miss Mair instructed by Paragon Law Solicitors.
For the Respondent: Mr Lister – Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
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This is an appeal against a determination of a panel of the First-tier Tribunal composed of FTT Judge I Taylor and Mr M J Griffiths JP (hereinafter referred to as “the Panel”) who in a determination promulgated on the 14th June 2013 dismissed the Appellants appeal against the order for his deportation from the United Kingdom made pursuant to the UK Borders Act 2007.
Background
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The Appellant, a citizen in Pakistan, was born on 14th October 1987. On 5th October 2008 he entered the United Kingdom illegally using a false passport. He remained in this country until 11th November 2011 when he was stopped trying to board a plane at Heathrow destined for Canada. He was found to be in possession of a United Kingdom passport in the name of another and so on 15th November 2011 he was sentenced at Isleworth Crown Court to 12 months imprisonment for possession and/or use of a false instrument namely a UK passport in the name of Mohamad Akbar.
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The Panel noted that the Appellant was sentenced in the name of Ali Mohammed which is an alias and that there was considerable doubt about his actual date of birth. The Appellant continued to use this alias and a false date of birth until his screening and substantive interviews which were conducted on 29th November 2012. Indeed, in the deportation questionnaire served in February 2012 the Appellant maintained the use of a false name, a false date of birth 14 September 1993, and claimed his country of birth was Afghanistan and not Pakistan. He also gave false names for both his mother and father.
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The Panel note the Appellant's medical history and refer to the medical evidence provided in paragraphs 12 to 16 of the determination before setting out their findings at paragraph 17 onwards, the core elements of which can be summarised as follows:
i. The Appellant’s account is broadly internally consistent although credibility issues do arise [17].
ii. The Appellant’s claim not to have known who his girlfriend’s father is lacked credibility [19]. Despite claiming to be in regular contact with his brothers in Canada neither were asked to submit a witness statement and photographs provided could have been of anybody [19].
iii. His claim to have been able to escape as his assailant forgot to lock the door was found to be incredible in all the circumstances [21].
iv. His claim that a poster or leaflet demanding his death by means of a Fatwa in Islamabad shortly after his mistreatment and in Gujrat whilst he was in the United Kingdom was not accepted as there was no explanation for why the poster should be circulated in Gujrat many years after the incident and despite a friend stating he had sent the poster by e-mail neither the e-mail or leaflet/poster had been submitted in evidence [21].
v. The use of the false identity indicates a number of falsehoods not only relating to whom he was, his family members, and place of birth, but also to key aspects of his claim [22]. The Panel did not accept that any satisfactorily explanation had been given for maintaining false personal details over such a long period of time to the police, a Crown Court Judge, and the Immigration Authorities. Inconsistencies in his evidence are also noted [23].
vi. The Appellant did not apply for asylum for nearly three years. No satisfactory explanation for the delay has been provided [25].
vii. Entry to the United Kingdom with a false passport and lies told to the Immigration Authorities were noted as was the fact that it was only after being notified of liability to deportation that the asylum claim was made in which the Appellant admitted fabricating numerous elements of his claim set out in the deportation questionnaire. This damages his credibility pursuant to section 8 of Asylum, Immigration (Treatment of claimants etc) Act 2004 [26].
viii. The Appellant is not a credible witness. The core of his account to be at risk upon return is not accepted subject to one important caveat that the evidence of Dr Playforth with regard to scars was found to be “compelling”. The Panel accepted the Appellant had at some point suffered injuries by being repeatedly attacked with a knife attached to a stick but how or why they were caused was not found to have been satisfactorily demonstrated by the Appellant. The Panel concede it may have something to do with the relationship with his girlfriend and family reaction to her pregnancy although the Panel were not satisfied it was anything other than a localised matter and were not satisfied that Sipah-e-Sahaba are involved. The Panel was not satisfied that a Fatwa has been pronounced on the appellant [27].
ix. The Panel accept there may be some small risk to the Appellant in his home area [28] but are also satisfied he can re-locate to Islamabad where there will be no risk from the family or their relations [29].
x. The Panel accept the Appellant is a Shia Muslim but find there is insufficient evidence to find that he is at risk solely on the basis of his religion which accounts for up to 25% of the population and having considered country guidance case law [30].
xi. In relation to the claim that Article 3 will be breached on return due to his physical and mental health, the Panel note the existence of services and treatments in Pakistan, including neurology departments and neuro-rehabilitation services. The Panel did not accept the Appellant will be destitute as suggested in the country experts report. The Panel find that although the Appellant may not have family in Islamabad but the uncle of a friend was able to afford him great assistance before and there is no reason to suppose he would not be able to do the same in the future. The Panel do not accept that the Appellant will not be able to continue to rely on the financial support of his brothers in Canada who have supported him to date [36].
xii. The Panel accepted the Appellant is suffering from a serious condition which gives rise to a great deal of personal sympathy although they found his condition falls short of satisfying the test both the cases of N v UK and GS and EO. The Panel did not accept that humanitarian considerations which apply are on a par with the circumstances of the Appellant in the case of D v UK [37].
xiii. In relation to suicidal ideation and mental health issues, the Panel found that in light of the availability of treatment in Pakistan and having considered the Appellants circumstances cumulatively it had not been shown that Article 3 was breached [38]. The Panel also note there was no recent or indeed any psychiatric/psychologists report and information regarding his psychiatric condition could only be gleaned from his medical records. As a result they did not know what his mental state/condition was at the date of the hearing [39].
xiv. In relation to Article 8 ECHR the Panel accept the Appellant has a private life in the United Kingdom but state that apart from his hospitalisation it is not clear what he has been doing in the United Kingdom for the five years he has been here [42]. The Panel accept the question is one of proportionality [43] and that the Appellant has no legitimate expectation that the treatment he receives will continue from the NHS, even if in Pakistan the treatment is of inferior quality. In such circumstances the decision is proportionate [43].
xv. The comments by the Consultant Neurologist regarding the provision of medical services in Pakistan were noted but it not found the Consultant has the credentials to give an opinion on this topic and so no weight can be given...
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