Upper Tribunal (Immigration and asylum chamber), 2016-10-25, PA/01497/2016
| Jurisdiction | UK Non-devolved |
| Date | 25 October 2016 |
| Published date | 08 April 2020 |
| Hearing Date | 16 August 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/01497/2016 |
Appeal Number: PA/01497/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/01497/2016
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision sent to parties on: |
|
On 16 August 2016 |
On 25 October 2016 |
Before
UPPER TRIBUNAL JUDGE GLEESON
Between
shahbaz ali
(no anonymity order)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr R Sharma, Counsel, instructed by Mayfair Solicitors
For the respondent: Mr R Harland, Counsel, instructed by the Government Legal Department
DECISION AND REASONS
Decision and reasons
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The appellant appeals with permission against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s refusal of international protection under the Refugee Convention or humanitarian protection grounds, or leave to remain on human rights grounds.
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His is one of the lead cases considered by the Court of Appeal in the ETS/TOEIC judgment in Mehmood & Anor, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 744. Since the appellant is named in the reported version of that judgment, which is freely available on the internet, I do not consider it appropriate to maintain anonymity before the Upper Tribunal and I discharge the anonymity order made by the First-tier Tribunal.
Background
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The appellant is a citizen of Pakistan born in 1984, and now 32 years old. The appellant previously lived in Multan, Lahore, and Manwali in Pakistan.
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He claims to have been a member of Anjamane Sarfaroshane Islam (ASI), a religious group whose spiritual leader is said to be Riaz Ahmed Gohar Shahi (Mr Shahi). His cousin had introduced him to ASI in 1994, when he was 10 years old and still living in Multan City. In 1998, ASI's spiritual leader, Mr Shahi, declared that ‘his picture was seen in the moon and the holy stone’. Many other people also declared that they had seen Mr Shahi’s picture in the sun, the moon and the holy stone, and also in the Temple in Jamshoro. In September 1998, members of other religious parties brought a blasphemy case against Mr Shahi.
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On 27 November 1998, the appellant’s family home was stoned: he and his family had to move. The police, to whom they reported the event, refused to register a first information report (FIR). The appellant was still studying in Multan, living for part of the time in a college hostel. He experienced many verbal threats while at the hostel. Teachers were unwilling to educate him, people used abusive language to him, and there were signs at the grocery shops indicating that followers of Mr Shahi would not be served.
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Almost 2 years later, in June 2000, Mr Shahi selected a team of 12 people to organise a peaceful protest. The appellant became involved: he was selected to lead protests in the South Punjab region, and named the Amir of South Punjab. On 12 September in Multan City, he led the first such protest. 60-70 people attended, without any trouble, and the same was the case in other cities.
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The appellant moved to Lahore in 2000 and stayed there until 2005. He faced no difficulties during this period. The group of people nominated by Mr Shahi reduced during this period, from 12 to 3. The blasphemy case against Mr Shahi remained outstanding but nothing happened.
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In 2008, the appellant and a colleague petitioned the government of Punjab to change the sentence provided in section 295C of the Pakistan Penal Code and refrain from wrongfully exercising the blasphemy law. The appellant met the Governor of Punjab, Mr Salman Thaseer, who promised to help with the blasphemy laws. The Governor wrote to other religious parties seeking support for the modification of section 295C. The request was not well received. The appellant supported opposition to the blasphemy prosecution and conviction of a Christian, Asia Noreen Bibi. She remains under sentence of death, albeit suspended by the Pakistani Supreme Court.
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In December 2009, a fatwa was declared against ASI. The appellant began to have difficulties. He was attacked by extremists when arranging a meeting in Lahore, and when the police attended, it was the appellant they arrested. He was released after 3 days’ detention. In September 2010, the appellant says that an FIR was registered against him in Lahore.
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On 4 January 2011, the Governor of the Punjab was assassinated by his bodyguard. In April 2011, when the appellant came to the United Kingdom, purportedly to study, he now says he came to save his life.
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The appellant entered the United Kingdom on 6 April 2011 as a Tier 4 (General) Student Migrant, with entry clearance valid until 30 December 2013. Before his leave expired, he lodged an application for further leave, which was refused on 7 April 2014, with no right of appeal. The appellant made a judicial review application, which the Court of Appeal dismissed. Permission to appeal to the Supreme Court was refused and his appeal rights were exhausted at the end of July 2015.
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On 4 January 2016, almost 5 years after his arrival in the United Kingdom ‘to save his life’, the appellant was detained and claimed asylum. The respondent refused to grant him international protection or humanitarian protection and the appellant appealed to the First-tier Tribunal.
First-tier Tribunal decision
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At the First-tier Tribunal hearing, the appellant attempted to reopen the ETS/TOEIC issue in an unsigned proof of evidence which he asked to be treated as a witness statement. In that document, he also sought to rely on his private life in the United Kingdom, pursuant to Article 8 ECHR. For the respondent, Mr Kandola objected, stating that the Article 8 claim was a ‘new matter’ as defined by section 85 of the Nationality, Immigration and Asylum Act 2002 (as amended) and that he did not consent to its introduction in an unsigned statement on the morning of the hearing, which he described as an abuse of process.
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The hearing was adjourned for a short time for the representatives to seek instructions. Mr Sharma returned to the hearing with an additional document, drafted for the appellant and signed by him, purporting to be a one-stop response under section 120. It was somewhat incoherent:
“[1] Further to the decision in the ETS/TOEIC test case [SM and Qadir (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC)] I wish to rely on this ground that my removal from the United Kingdom as the consequence of the dismissal of my appeal would be contrary to my Article 8 right.
[2] I have established a private life in the United Kingdom of the continuation of the private life is being unlawfully denied pursuant to a decision now shown to have no substance.
[3] It is clear that there is no proper evidence of any alleged deception as such my application for further leave to remain on 29 December 2013 was wrongly refused in the decision of the 7 July 2014. …This decision was not according to law and must therefore failed under Common Law assessment of proportionate interferences with Article 8 rights. …
[4] [Not relied upon at the Upper Tribunal hearing]
[5] I confirmed that this statement should be treated as a section 120 response pursuant to the Nationality, Immigration and Asylum Act 2002. This statement will be relied upon in my appeal and added to by way of legal submissions.”
There was no application by either party for an adjournment of the substantive hearing to enable the respondent to consider the section 120 notice.
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The First-tier Tribunal Judge found that the appellant was in breach of directions sent to him on 4 March 2016, requiring him to provide a witness statement and any evidence on which he wished to rely, not later than 5 days before the substantive hearing, which the appellant had failed to do. The new grounds had not been raised ‘as soon as was reasonably practicable’ as required by section 120(5).
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The First-tier Tribunal Judge accepted that the matters in the section 120 statement were a ‘new matter’ for the purpose of section 85(6) of the 2002 Act and that their admission required the consent of the respondent, pursuant to section 85(5). That consent having been withheld, he was not seised of the ‘new matters’ at the protection claim hearing.
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Mr Sharma and the appellant then withdrew from the hearing, asking the First-tier Tribunal Judge to decide the protection element of the claim ‘on the papers’, which he did. The Judge found the core account to be a fabrication to avoid removal from the United Kingdom and rejected it entirely. His reasons relied on section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the Judge considered that the appellant had not explained satisfactorily his failure to claim asylum earlier; that the appellant’s inability or unwillingness to provide documentary or other corroborative evidence to support his account of events in Pakistan further damaged his claim; and that overall, the core account, including the appellant’s claimed membership of the organisation, was not credible or reliable. In particular, he took into account the delay in applying and the appellant’s reliance on his notes at the asylum...
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