WAS (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Phillips,Lord Justice Baker |
| Judgment Date | 26 July 2023 |
| Neutral Citation | [2023] EWCA Civ 894 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
| Docket Number | Case No: CA-2022-002062 |
[2023] EWCA Civ 894
Lord Justice Baker
Lord Justice Phillips
and
Lady Justice Elisabeth Laing
Case No: CA-2022-002062
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM
CHAMBER
UPPER TRIBUNAL JUDGE McWILLIAM
PA/11954/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Eric Fripp and Theo Lester (instructed by Morden Solicitors LLP) for the Appellant
Jack Holborn (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 13 July 2023
Approved Judgment
This judgment was handed down remotely at 11.00 am on 26 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Appellant (‘A’) appeals from a determination of the Upper Tribunal (Immigration and Asylum) Chamber (‘the UT’) promulgated on 22 March 2022 (‘determination 4’). Asplin LJ gave permission to appeal on two out of four grounds of appeal. A did not renew his application for permission to appeal, so I will refer to the grounds for which he was given permission as ‘ground 1’ and ‘ground 2’.
On this appeal, A has been represented by Mr Fripp and Mr Lester, and the Secretary of State by Mr Holborn. I thank counsel for their written and oral submissions. Paragraph references are to the determinations of the UT or of the First-tier Tribunal (Immigration and Asylum Chamber) (‘the F-tT’) as the case may be, or to an authority if I am referring to an authority.
For the reasons given in this judgment, I would allow the appeal on grounds 1 and 2.
A's immigration history
I have taken A's immigration history from the determinations in his case. A entered the United Kingdom on 19 June 2012 as Tier 1 (General Student) Migrant. In December 2015 he made a timely application for further leave to remain as the spouse of a British citizen. The Secretary of State refused that application on 16 February 2016. A then made a protection claim on 19 October 2017 on the basis of his actual or perceived political opinion. He said that he was a member of the Muttahida Qaumi Movement (‘MQM’), an opposition movement in Pakistan. The further representations to which I refer in the next paragraph were based on an assertion that he had also been disinherited by his father.
The procedural history
I have also taken the procedural history from the determinations. The Secretary of State refused A's protection claim on 18 April 2018. A appealed to the F-tT. The F-tT dismissed A's appeal on 27 June 2018, in determination 1. The F-tT found (paragraph 11) that A was ‘an active member of MQM in Pakistan for approximately 3 years, from 2009 to 2012, prior to his arrival in the UK. [A's] father is an active supporter of MQM…. In December 2015, [A] had been an active member of MQM for 6 years overall and MQM-London for approximately 3 1/2 years’. The F-tT found that his credibility was damaged by the fact that he had not claimed asylum until October 2017, ‘in circumstances where his political affiliations have not changed…’. In paragraph 16, the F-tT accepted that A was a current member of MQM ‘and is likely to continue to be a supporter of MQM should he return to Pakistan’. The F-tT appears to have accepted his evidence that he was ‘an active member of MQM from 2009, going from house to house in support of their causes and MQM London from 2012 until 2017’ (ibid). The UT dismissed a further appeal on 14 May 2019. A made further representations in September 2019. In a decision dated 18 November 2019, the Secretary of State accepted that A's further representations were a ‘fresh claim’ for the purposes of paragraph 353 of the Immigration Rules (HC 395 as amended), but refused that claim.
A again appealed to the F-tT. The F-tT dismissed his appeal in a determination promulgated on 5 February 2020 (‘determination 2’). The F-tT summarised the Secretary of State's decision in paragraphs 12–21. That summary recorded (paragraph 13) that the Secretary of State relied on determination 1 and on the later decision of the UT (referring to Devaseelan [2002] UKIAT 00702). ‘Both tribunals had found that [A] was a low-level MQM member in London and would not be at risk on return to Pakistan’. In paragraph 24, the F-tT recorded that it had heard evidence from Abdul Hafeez (‘Mr Hafeez’), a member of the ‘MMQ UK Organising Committee’. The UT gave A permission to appeal against determination 2. In a determination promulgated on 18 September 2020 (‘determination 3’), the UT found a material error of law in the F-tT's determination and set it aside. In short, the UT held that while the F-tT had taken into account the relevant passage in the expert report of Dr Bennett-Jones, it had ‘failed adequately to consider the risk…that a person who aligned himself with MQM-London may face from the Pakistani authorities (and MQM-Pakistan)' (paragraph 20). The UT noted (paragraph 21) that there had been no challenge to the F-tT's adverse credibility findings.
In paragraph 21 of determination 3, the UT directed that several findings of fact made by the F-tT should be preserved. Those were the F-tT's findings of fact in paragraphs 29 to 32 and 53 about ‘threats to his family in Pakistan’, a finding in paragraph 39 about the receipt of financial support, and findings in paragraphs 33–37 and 51 to 52 about A's involvement in MQM and his Facebook account ‘so far as they related to his sur place activities up to the date of’ the F-tT hearing. I describe those findings in more detail in paragraphs 9–18, below. The UT did not refer in determination 3 to the findings in determination 1.
The UT also decided in determination 3 that it would retain the appeal. The decision would be re-made ‘to determine whether [A] would face a real risk of persecution if removed to Pakistan on account of his actual or perceived involvement with the MQM-London’ applying the principles in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; [2011] AC 596. The UT would also consider, if necessary, the issue of internal re-location.
The F-tT's preserved findings
Paragraphs 29–32 are headed ‘Threats to [A's] family in Pakistan’. In paragraphs 29–32, the F-tT described A's evidence that he had been publicly disowned by his father in July 2019, that his father had, in January 2018, been approached by the authorities in Pakistan, and questioned about A's activities, and that he had not been in contact with his family in Pakistan for over two years, except for his sister. The F-tT commented adversely on the defects in this evidence. For example, A had not produced any external evidence that his family had been harassed in Pakistan. In paragraph 32, the F-tT recorded that A's evidence was that he had forgotten to say in his witness statements that his father had been questioned, even though he accepted that it was a very important part of his asylum claim. The F-tT said that it did not find A ‘to be a credible witness in this matter’.
In paragraph 53, the F-tT returned to this topic. The F-tT did not find A's evidence about lack of contact with, and financial support from, his family in Pakistan credible. The F-tT accepted that the deed of disinheritance was issued and publicised by A's father, but the F-tT did not accept that A had shown ‘on the lower standard of proof’ that this was because of adverse attention from the authorities.
Paragraphs 33–39 are headed ‘[A's] political activities in the UK’. In paragraph 33, the F-tT described photographs of A's activities in the United Kingdom. They were said to show him sitting round tables at various meetings, and meeting ‘Mr Hussain, the MQM founder’ (‘AH’) ‘at what appeared to be a lecture event’, which A said was on 29 March 2019. Two photographs showed A ‘as one of many in a large crowd’. A said that those photographs showed him taking part in a protest at 10 Downing Street in May 2018. The F-tT said that there no evidence to show that the photographs had come to the attention of the authorities in Pakistan. The F-tT noted that the photographs all postdated January 2018, when his father had been questioned by the authorities.
The F-tT found that the photographs did not show that A had ‘any significant political or activist role’ in MQM in London. The F-tT summarised the evidence of Mr Hafeez as support for that conclusion. Mr Hafeez had ‘no knowledge of [A] making any political speeches or statements on behalf of MQM London’. The F-tT recorded an assertion in a letter from Mr Ehsan that A would be at risk in Pakistan, but also noted that ‘there was no further evidence from Mr Ehsan to support this opinion/statement’ (paragraph 34).
A had said that he joined MQM in Pakistan in 2009. He had come to the United Kingdom in 2012, but had not joined MQM-L until August 2016. A explained that he had been too busy with his studies, and had not been able to play an active part until 2016. The F-tT noted that this was after A had been refused leave to remain on the basis of his marriage to a British citizen (paragraph 35).
In paragraph 36 the F-tT referred to new evidence about A's Facebook profile. This evidence was not in A's bundle. It consisted of laminated cards which A had handed out at the hearing. His oral evidence was that the Facebook profile for ‘Vick Shapman’ was his; it was a nickname used by his friends and family. The F-tT accepted that there were pictures of A on this account and that it was his account.
There was no political content on this account. There was a birthday message to Mr Altaf Hussain (‘AH’) on 16 September 2019, but it was not political. There were other messages in Urdu, but as they had not been translated, the F-tT could not take them into account. A did not claim that the cards...
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