United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/02878/2017

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 16 November 2017	On 01 December 2017

 

Before

 

 

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

 

Between

 

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Appellant

and

 

SA

(anonymity direction MADE)

 

Respondent

 

Representation :

 

For the Appellant: Mr. P. Nath, Home Office Presenting Officer

For the Respondent: Not represented

 

DECISION AND REASONS

 

1.              This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge NMK Lawrence, promulgated on 16 May 2017, in which he allowed SA's appeal against the Secretary of State's decision to refuse to grant asylum.

 

2.              For the purposes of this decision I refer to SA as the Appellant and to the Secretary of State as the Respondent, reflecting their positions as they were before the First-tier Tribunal.

 

3.              As this is an asylum appeal, I make an anonymity direction.

 

4.              Permission to appeal was granted as follows:

 

"With the respect to the submissions made the judge does highlight that one of the document refers to a dating 2017 (sic). However that having been said as there was a country guidance case on the issue, it was for the judge to refer to the country guidance and give reasons as to why the background evidence now submitted led him to conclude that Christians were at risk or rather why the appellant in particular was at risk. The appellant had ceased studying and there was no suggestion that she would be returning to study. The source of the appellant's persecution was in the context of the University she had attended and not otherwise. The judge had carried out his own research but gave no reason why that research should override the findings in the country guidance case."

 

The hearing

 

5.              The Appellant did not attend the hearing and no adjournment request had been received. The file showed that notice of the place, time and date of the hearing had been sent to the Appellant at the address last notified to the Tribunal. This was the same address as held by the Respondent. I note that the Appellant did not attend the hearing in the First-tier Tribunal. I considered that I was able to proceed to hear the appeal and that it was in the interests of justice to so in accordance with rules 2 and 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

6.              Mr. Nath made brief submissions. I stated that I found that the decision involved the making of a material error of law, and that my full reasons would follow.

 

Error of law decision

 

7.              As set out in the grounds of appeal, the judge made no reference to the country guidance case of AK and SK (Christian: risk) Pakistan CG [2014] UKUT 569 (IAC). The Respondent had made reference to this case in the reasons for refusal letter. The judge instead relied on a bundle of evidence which he himself had prepared in advance of the hearing.

 

8.              By relying on this evidence, the judge found that the Appellant would be at risk on return, and effectively departed from the country guidance case. It is well established that if departing from country guidance caselaw, reasons must be given for this departure. I am mindful of the case of DSG & Others (Afghan Sikhs: departure from CG) Afghanistan   [2013] UKUT 148  (IAC), the headnote to which states: "A judge may depart from existing country guidance in the circumstances described in Practice Direction 12.2 and 12.4 and the UT (IAC) Guidance Note 2011, no. 2, paragraphs 11 and 12."

 

9.              Practice direction 12.2 states:

 

"A reported determination of the Tribunal, the AIT or the IAT bearing the letters CG shall be treated as authoritative finding on the country guidance issue identified in the determination, based on the evidence before the members of Tribunal....that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later CG determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:- a) relates to the country guidance issue in question; and b) depends upon the same or similar evidence."

 

10.          The Guidance Note states:

 

"If there is credible fresh evidence relevant to the issue that has not been considered in the Country Guidance case or, if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence, taking into account the conclusion in the CG case so far as it remains relevant." [11]

 

11.          However, the judge did not even refer to the country guidance case when reaching his conclusions. I find that this is a material error of law.

 

12.          The Appellant did not attend the hearing in the First-tier Tribunal. The Respondent had accepted that she was a Christian. However the Respondent had not accepted her account of events in Pakistan. The Appellant had failed to address how she had returned to Pakistan in 2013. She had failed to address the inconsistencies in her evidence. The headnote to the country guidance case states as follows:

 

"1. Christians in Pakistan are a religious minority who, in general, suffer discrimination but this is not sufficient to amount to a real risk of persecution.

 

2. Unlike the position of Ahmadis, Christians in general are permitted to practise their faith, can attend church, participate in religious activities and have their own schools and hospitals.

 

3. Evangelism by its very nature involves some obligation to proselytise. Someone who seeks to broadcast their faith to strangers so as to encourage them to convert, may find themselves facing a charge of blasphemy. In that way, evangelical Christians face a greater risk than those Christians who are not publicly active. It will be for the judicial fact-finder to assess on a case by case basis whether, notwithstanding attendance at an evangelical church, it is important to the individual to behave in evangelical ways that may lead to a real risk of persecution.

 

4. Along with Christians, Sunnis, Shi'as, Ahmadis and Hindus may all be potentially charged with blasphemy. Those citizens who are more marginalised and occupy low standing social positions, may be less able to deal with the consequences of such proceedings.

 

5. The risk of becoming a victim of a blasphemy allegation will depend upon a number of factors and must be assessed on a case by case basis. Relevant factors will include the place of residence, whether it is an urban or rural area, and the individual's level of education, financial and employment status and level of public religious activity such as preaching. These factors are not exhaustive.

 

6. Non state agents who use blasphemy laws against Christians, are often motivated by spite, personal or business disputes, arguments over land and property. Certain political events may also trigger such accusations. A blasphemy allegation, without more, will not generally be enough to make out a claim under the Refugee Convention. It has to be actively followed either by the authorities in the form of charges being brought or by those making the complaint. If it is, or will be, actively pursued, then an applicant may be able to establish a real risk of harm in the home area and an insufficiency of state protection.

 

7. Like other women in Pakistan, Christian women, in general, face discrimination and may be at a heightened risk but this falls short of a generalised real risk. The need for a fact sensitive analysis is crucial in their case. Factors such as their age, place of residence and socio-economic milieu are all relevant factors when assessing the risk of abduction, conversions and forced marriages.

 

8. Relocation is normally a viable option unless an individual is accused of blasphemy which is being seriously pursued; in that situation there is, in general, no internal relocation alternative."

 

13.          In order to assess risk on return, it was incumbent on the judge to make findings regarding the Appellant's account of events in Pakistan. It was incumbent on him to make findings regarding her circumstances on return. In the absence of the Appellant, the Respondent did not have the opportunity to cross-examine the Appellant, and the Appellant had failed to address the inconsistencies in her witness statement. However, the judge simply accepted her evidence and found that she was "persecuted" on account of her Christian faith in Pakistan. He failed to address the reasons why the Respondent had not accepted the Appellant's account.

 

14.          I have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. There has been no testing of the Appellant's evidence. I cannot rely on the findings made by the First-tier Tribunal Judge as a basis for any remaking of the decision. H aving regard to the overriding objective, I therefore find that it is appropriate to remit this case to the First-tier Tribunal.

 

Notice of Decision

15.          The decision involves the making of a material error of law and I set the decision aside.

16.          The appeal is remitted to the First-tier Tribunal for rehearing.

 

Direction to the Appellant

 

There have now been two hearings in your asylum appeal which you have failed to attend. You have not given any reason for your failure to attend. You are directed to contact the Tribunal Service to inform them whether or not you are still pursuing your appeal against the Respondent's decision to refuse asylum, and whether you are intending to attend the rehearing of your appeal in the First-tier Tribunal. If you are now represented, your representatives are directed to contact the Tribunal to be put on record.

 

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

 

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

Signed Date 30 November 2017

 

 

Deputy Upper Tribunal Judge Chamberlain