Upper Tribunal (Immigration and asylum chamber), 2019-10-14, PA/13738/2017

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/13738/2017

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 3 October 2019	On 14 October 2019

Before

UPPER TRIBUNAL JUDGE KEKIĆ

Between

M H B

(anonymity order made)

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Z Malik, of Counsel, instructed by R. Spio and Co. Solicitors

For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. This appeal comes before me following the grant of permission to appeal by Designated First-tier Tribunal Judge Macdonald on 27 August 2019 against the determination of First-tier Tribunal Judge Young, promulgated on 19 July 2019 following a hearing at Hatton Cross on 4 June 2019.

2. The appellant is a Pakistani national born 24 October 1988. He entered the UK as a student in December 2009 and subsequently obtained further grants of leave until under Tier 4 and, according to the respondent, under Tier 2 until 15 April 2017, although the appellant maintains he was a Tier 2 dependant from 11 May 2016 until 13 April 2017 (witness statement p.4, SB). Plainly he cannot have been a dependant if in 2015 his wife was seeking to remain on the basis of her relationship to him. This detail is, however, immaterial to the issues.

3. The appellant made visits to Pakistan in August 2011, June 2012, February 2016 and June 2016. A year after his last entry, on 21 June 2017, he claimed asylum on the basis that his family had been involved in a land dispute and that when he had last been in Pakistan, he had been attacked. He claimed that in early June 2017 he had become aware that a warrant for his arrest had been issued against him because it was believed that he had been involved in an incident in 2013 when a security guard had been killed. What had previously happened was that his paternal cousin, KM, had killed three family members in 2011 over a property dispute and then fled to the UK as he was a British national or a UK resident. In 2013 the appellant's brother, FAB, had killed one of KM's security guards, allegedly in self-defence.

4. The appellant also maintained that he was married under Islamic law to KK/ZB, an Indian national, and that he had taken their daughter (born August 2014) to Pakistan and left her there with his mother. He had returned with her in June 2016 to arrange entry clearance for her return as she was here without leave but had to leave her there when he fled following the attack. Thereafter, his sponsor’s licence was revoked and so he could no longer work and his daughter could not seek entry clearance to join him. It is unclear whether an application had been made prior to his departure.

5. The appellant’s wife entered the UK in October 2010 as a student and subsequently obtained discretionary leave until 13 November 2014 in order to give birth to her daughter (now in Pakistan). Her subsequent application on 12 November 2014 for leave as her husband’s dependant was refused and her article 8 appeal was heard at Hatton Cross by First-tier Tribunal Judge Kimnell on 14 September 2015 and dismissed on 29 September 2015. I have no evidence of whether she acquired any status thereafter but certainly she had none at the time of the decision in the appellant’s case when she was also refused leave as the applicant’s dependant. At her hearing, the appellant’s wife stated that her intention was to return to India with her daughter. She also maintained, however, that she could not return there with her husband as she had converted to Islam. It was argued that the child was stateless and was unable to obtain nationality from either India or Pakistan. Plainly that was incorrect as the child obtained a Pakistani passport shortly afterwards.

6. The appellant’s claim was refused on 14 December 2017. The respondent did not accept that the claim of a family land dispute engaged the Refugee Convention. She also found inconsistencies in the claim. She considered that the appellant had not been in Pakistan in 2013 and so it was unlikely that he would be considered to have been involved in the incident. The delay in the making of the claim, some 12 months after his return from Pakistan, allegedly when he had been in fear for his life, was also taken into account.

7. The appeal was initially heard by First-tier Tribunal Judge Wilson at Hatton Cross on 29 January 2018. It was dismissed on 2 February 2018. However due to the lack of clarity in the determination (it appears as though voice recognition software was used with no subsequent proof reading), the decision was set aside by Deputy Upper Tribunal Judge Chapman on 2 August 2018. It then came before First-tier Tribunal Judge Young at Hatton Cross on 4 June 2019 and was dismissed on 19 July 2019.

8. The judge rejected the claim of a real risk of persecution on account of the property dispute and the alleged accompanying events. The claim is convoluted and contains numerous difficulties but as no direct challenge has been made to any particular findings on the asylum/humanitarian protection claim, there is no need to set the details out in any detail at this stage. Suffice to say that the claim was rejected, and that the judge did not accept that the appellant had experienced any problems on his return visits in 2016. Indeed, the judge found that the family’s property dispute had been exaggerated and the account of the attack had been added to boost it so that the appellant could find a way to remain in the UK after his discovery in 2017 that his employer’s sponsor licence was under investigation and was revoked on 10 May 2017. The judge found that tied in perfectly with the timing of the asylum claim.

9. It was argued at the hearing, and appears to have been raised for the first time before Judge Chapman, that there would be problems for the appellant’s wife if she accompanied him to Pakistan as she was a Sikh and an Indian national. This was further pursued as an argument before Judge Young and an expert report was adduced to support the contention that the wife would not be welcome in Pakistan.

10. The judge rejected this claim, finding that the wife had converted to Islam and changed her name and that the Islamic marriage would be accepted in Pakistan where their daughter now lived. The judge also found that the evidence did not establish that there was a real risk that the wife’s mental health (after losing a second child shortly after its birth in May 2018) would deteriorate if she was removed to such an extent as to engage article 3 or 8. He accepted that the appellant would not be able to relocate to India but found that family life could continue in Pakistan. He also took account of the fact that both the appellant and his wife had come to the UK for studies and had no expectation of being able to reside here. He found that there would be no very significant obstacles to integration. Accordingly, the appeal was dismissed on all grounds.

The Hearing

11. Mr Malik relied on his grounds which he expanded in his submissions at the hearing on 3 October 2019.

12. The following arguments were made. First, it was argued that the judge’s approach as to whether the appellant’s wife could relocate to Pakistan was legally flawed and inconsistent with CS and Others (Proof of Foreign Law) India [2017] UKUT 199 (IAC). That was a case which concerned an Indian male, a Pakistani wife and three children. Mr Malik referred me to paragraph 22 of the determination and argued that in the present case the judge should have found that the Secretary of State’s failure to adduce documentary evidence of Pakistan’s immigration laws meant that as in CS, the cornerstone of her case had collapsed and crumbled. Mr Malik maintained that the burden was on the respondent to prove that relocation to Pakistan was a viable option. He also argued that there was a conflict in the evidence as to the wife’s conversion and this was not resolved by the judge.

13. Mr Malik’s second ground was that the judge had applied the wrong test in considering the claim based on the appellant’s wife’s suicide risk. It was argued that in seeking clear evidence that suicide would be the result of removal, the judge failed to consider whether there would be a real possibility of suicide. The judge is criticised for failing to refer to and follow binding authorities such as J [2005] EWCA Civ 629 and Y and Z [2009] EWCA Civ 362. He is also criticised for the reference to the availability of medical treatment in India (at 146).

14. The third ground was that the judge had applied the wrong standard of proof and failed to ask the right question when considering the protection claim. Mr Malik relied on ME (Sri Lanka) [2018] EWCA Civ 1486 and argued that in accordance with paragraph 18 of that judgment, it was unsatisfactory for the fact finder to express findings of fact in the negative. He argued that Judge Young had consistently approached his assessment in a binary manner and expressed himself in the...