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


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024003719 [2025] UKAITUR UI2024003719 (2 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2024003719.html
Cite as: [2025] UKAITUR UI2024003719

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI- 2024-003719

First-tier Tribunal Nos: HU/59617/2023 & LH/05528/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 2 May 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

 

Between

 

MR JAMIL AHMED

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr T Haddow instructed by Clyde Solicitors

For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

 

Heard at Edinburgh on 17 April 2025

DECISION AND REASONS

1.              The appellant appeals with permission against a decision of First-tier Tribunal Judge Mace promulgated on 3 June 2024 dismissing his appeal against a decision to refuse to revoke a deportation order against him and to refuse his protection claim.

2.              The appellant is a citizen of Pakistan. He is a foreign national criminal.

3.              On 21 October 2008 the appellant was convicted of unlawful sexual intercourse with a girl between 13 and 16 years of age. He was sentenced to a three-year Probation order and 240 hours of community service.

4.              On 13 November 2013 the appellant was further convicted of unlawful sexual intercourse with a girl between 13 and 16 years of age; intentionally or recklessly penetrating the vagina/ anus/ mouth of an older child. He was sentenced to 3 years and 6 months imprisonment with an extended period of two years. The total aggregate sentence was therefore 5 years and 6 months. He was also placed on the Sex Offenders Register for an indefinite period and made subject to a Sexual Offences Prevention Order. He did not appeal conviction or sentence.

5.              As a result of his conviction the appellant was made subject of a deportation order and his human rights claim was refused and certified. A Judicial Review by the appellant was withdrawn and he made further submissions, treated as a protection and human rights claim, which were refused on 27 April 2017. His appeal against the decision was dismissed on 29 December 2017. Permission to appeal to the Upper Tier was refused. Permission for Judicial Review against the decision to refuse permission was refused, and an oral Judicial Review permission application was refused at an oral hearing in February 2019.

6.              The appellant had made an application for leave based on his private and family life on 27 November 2018. A Stage 2 decision and deportation order was made on 20 July 2015. On 25 July 2023 the appellant's protection and human rights claims were refused. It was considered that his deportation would not breach Article 8 as the public interest in deporting him outweighs his right to family life.

7.              The appellant asserts that he has a well-founded fear of persecution and is at risk of suffering serious harm in Pakistan because knowledge of his crimes have become known in Pakistan and published in newspapers. In addition, a First Information Report ("FIR") has been made to the police in his local area on the basis of his crimes; a fatwa has also been issued. The appellant states that he is at risk of being prosecuted in Pakistan for these offences for which he has already been convicted, double jeopardy law applying in Pakistan. He also submits that he is at risk from religious fanatics as a result of the fatwa. It is also his case that there will be no sufficiency of protection for him against such groups in Pakistan and that he would not be able to relocate to an area where he would be safe.

8.              The Secretary of State does not accept his case and considers that in any event he is excluded from protection under the Refugee Convention by operation of Section 72 of the Nationality, Immigration and Asylum Act 2002. The appellant also claims that his removal from the United Kingdom would be a breach of his Article 8 rights as he has a partner and child in the United Kingdom.

9.              The Secretary of State's case is that the effect of his deportation would not make it unduly harsh for them to remain in the United Kingdom without him and that there were no very compelling circumstances which outweigh the very strong public interest in his deportation.

The Previous Decision

10.          As is recorded in the FtT's decision, in a decision of 28 December 2017, the previous FtT dismissed the appellant's appeal on human rights and Article 3 grounds subsequent to a decision to refuse to revoke a deportation order. The appellant did not rely on the Refugee Convention and accepted that he was excluded from Humanitarian Protection. The appellant claimed that he would be at risk on return to Pakistan as a result of persons becoming aware of his offending and making threats to harm him. He made reference to his father having obtained a newspaper containing the his picture and his address in Pakistan. He also claimed that a fatwa had been issued against him. There was also said to be leaflet in existence containing the same photograph as the newspaper article, which the appellant said was being distributed by local extremists. He did not know in what way they were extremists. It was noted that the appellant's wife had returned to Pakistan in 2015 and 2016 and stayed in his family home and her own family home. His wife stated at the hearing that she believed his life would be in danger if he returned.

11.          The previous FtT found that the documents produced were not reliable and placed no weight on them. The document referred to the appellant completing his sentence of "adultery". The second document also referred to the crime of adultery. The FtT found that if the appellant's crimes had reached the attention of a newspaper in Pakistan, the appellant's actual crimes would have been far more newsworthy that adultery. The documents were not accepted as genuine. The suggestion of threats from alleged religious organisations was entirely rejected as utterly self-serving. The alleged fatwa made no reference to the appellant's actual crimes. Submissions were made that the appellant's home area had a significant Pakistani community and that the Sunday Mail was likely to be a popular newspaper. This was the mechanism by which the appellant's convictions reached Pakistan. The FtT found this to be speculation and unsupported by evidence. Even if information had reached Pakistan, that did not mean that the appellant had been threatened. In any event, there would be little chance of the appellant being recognised if he went to a place where he was unknown. It was not accepted that the appellant was at risk and could not succeed under Article 3. Even if he was at risk, he could reasonably relocate.

12.          The appellant's appeal was dismissed on 22 December 2017. As noted above, applications wishing to appeal against that were not successful. The appellant then applied to have the deportation order against him revoked relying on new evidence, in particular an FIR issued in 2019 and the expert report of Mr Asad Ali Khan, an advocate of the High Courts in Pakistan, also qualified in the United Kingdom.

13.          It was Mr Khan's opinion that the newspaper article from the Daily Kashmir News is authentic as were the fatwa and the FIR. It was also his opinion that Pakistani national offenders who arrive on return will be interviewed and questioned, and it was likely that those convicted of heinous crimes such as terrorist activities or drug trafficking will be sent for interrogation to the local area police station at which point the appellant would face charges against him owing to the FIR and he would be at serious risk of prosecution and/or action taken by local religious fundamentalists who had obtained the fatwa.

14.          Mr Khan was also of the view that the appellant would not be safe in other parts of Pakistan, that he is at risk of being targeted elsewhere as he could not conceal his identity and would require a CNIC, nationality identity card, to access basic services in Pakistan which would allow non-state actors to trace him and that the authorities would no longer provide security or sufficient protection for him.

15.          The FtT found that:

(i)             the expert report did not engage specifically with the issues taken in respect of the documents from the previous decision, that is inaccuracies as to the nature of the appellant's offending in the UK, the documents in support were taken as part of the evidence as a whole including the previous findings as to credibility, the appellant having previously been found by a jury to have lied before a criminal court [44];

(ii)          weight was not to be placed on the FIR or the earlier documents [51] as they were not reliable;

(iii)        having had regard to the expert report that there was no adverse interest in the appellant in Pakistan from religious fanatics or anyone else but even if so he could live elsewhere; that the suggestion that he would be traced through the CNIC card system was speculative as was the conclusion that he faces being tried again [47] or that others would have the intention or desire to follow him elsewhere in Pakistan [49];

(iv)        although it was accepted it would be unduly harsh for the appellant's wife and younger child to relocate to Pakistan, it would not be unduly harsh for them to remain in the United Kingdom without him;

(v)          there is an absence of independent up-to-date evidence on the child's best interest [55];

(vi)        the report by the social worker Glen Meaden was now almost seven years old and conclusions were out of date [60] and that limited weight could be placed on the conclusions and observations of Mr Musendo's report of 22 January 2018 given the sons are now substantially older;

(vii)      whilst the exceptions to deportation did not apply, he was required to show there are very compelling circumstances such that he should not be deported under Section 117C(6) and that the appellant's expressions of remorse were entirely self-serving [86] in balancing the seriousness of this crime and that the only evidence of rehabilitation was that no further offence had been committed, was not satisfied there were very compelling circumstances such that he should not be deported.

16.          The appellant sought permission to appeal on ten grounds. On 23 August 2024 Upper Tribunal Judge Loughran granted permission.

The Hearing

17.          I heard submissions from Mr Haddow who relied primarily on the skeleton argument drafted by Mr G Hodgetts of Counsel. I also heard submissions from Ms Blackburn. In addition, I had before me a consolidated bundle of 3,505 pages, including at Part D additional evidence related to the appellant's father and an addendum report from Mr Khan. In summary, it is stated that the appellant's case that he had been summoned to court in respect of charges brought as a result of the FIR; and, that armed individuals came to the family home looking for him and an argument ensued. In the heat of the argument one of the armed individuals opened fire killing the appellant's father.

Preliminary Issue

18.          I raised the issue of the anonymity order. I indicated that it was my preliminary view that the anonymity order should be lifted given that it would serve no purpose. The appellant's crimes were a matter of public record and the First-tier Tribunal decision had not been anonymised. Further, if the appellant was to be believed, there having already been consequences in Pakistan and no proper purpose would be served by preserving anonymity.

19.          Mr Haddow did not seek to persuade me to retain the anonymity order, accepting that it would now appear to serve no great purpose. Ms Blackburn remained neutral on the matter.

20.          I am satisfied that it is necessary to lift the anonymity order as it is not justified. I announced that at the hearing and it then proceeded.

21.          Having heard submissions from both representatives, I reserved my decision. I did, however, indicate that were I to find an error of law the matter would have to be remitted to the First-tier Tribunal given that there was now a substantial amount of new evidence which needed to be taken into account.

The Law

22.          In assessing the grounds of appeal, I bear in mind that Ullah v SSHD [2024] EWCA Civ 201 at [26]. I also bear in mind what was held in Volpi v Volpi [2022] EWCA Civ 464 at [2] and what was in HA (Iraq) [2022] UKSC 22 at [72]. The decision must be read sensibly and holistically. Justice requires that the reasons enable it to be apparent to the parties why one has won and the other has lost: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at [16]. When reading the decision, I am entitled to assume that the reader is familiar with the issues involved and arguments advanced. Reasons for judgment will always be capable of having been better expressed and an appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract. 

23.          I bear in mind that this is a case to which Devaseelan and, for that matter, Tanveer Ahmed apply. Although the latter is not referred to in the First-tier Tribunal's decision expressly, it is clear from paragraphs 44 and 45 that she applied the principles - see the reverted to considering the FIR in the context of the evidence as a whole.

24.          Materially, the First-tier determination is the starting point. That includes credibility. Not only is a judge assumed to be aware of all the relevant legal principles she is also assumed to have applied them even if not expressly directed. That said, it is clear from the self-direction at [32] that the judge was aware of Devaseelan and she took the initial decision as her starting point. It is also clear from paragraph [44] that the judge was aware of the need to consider the documents as evidence as a whole including the previous findings on his credibility.

The grounds

25.          It is of note that in the grounds at [1.4] it is accepted by the appellant that Devaseelan is material.

26.          At the centre of the appellant's case are Pakistani documents and newspaper reports, originals of which do not appear to have been presented to the court; or, for that matter, to the expert. The expert says only that he saw the bundles produced which in turn rely on photocopies of newspapers and their translations and the articles in question being cut out rather than identified as being on a full page of the newspaper.

Ground 1

27.          It is averred that the judge erred in stating that the expert report "did not engage specifically with the issues taken with the documents in the previous decision, namely the inaccuracies as to the appellant's offending in the UK".

28.          The starting point for this issue is the first decision in which the judge concluded that the Pakistani newspaper report could not be reliable as it described the offence committed in Scotland, unlawful intercourse with a minor, being inconsistent with the description as adultery in the Pakistan newspaper report.

29.          I accept that the concept of "Zina" is Islamic, and for that matter, Pakistani law, covers both adultery and sex with a minor. It is unlawful intercourse, that is intercourse outside of marriage.

30.          The expert deals at length with the meaning of "Zina" at paragraphs [37] to [41]. It is also stated at paragraph [67(f)] that Zina is used as a generic term in Pakistan to refer to adultery and fornication. The expert also says [33] that the article from the Daily Kashmir News appears to be authentic.

31.          The report does not, however, address head-on the apparent discrepancies between the article referring to adultery and what was written in the Scottish newspapers as being referred to in the previous decision. What the report does not do is explain what precise words were used in the article. I accept that he states the newspaper article is written Urdu and that at [67(f)] he does state that Zina is used as a generic term in Pakistan to refer to adultery and fornication. He concludes:-

"With the greatest of respect, in relation to the contents of paragraph 46 of FtTJ's Clapham's determination and reasons promulgated on 28 December 2017 by the learned judge rejected the appellant's documentary evidence, I would observe and emphasise that Zina is a generic term used for a sexual offence in Pakistan".

32.          But, the expert did not explain what was written in Urdu although it is implicit that he proceeded on the basis of what does written. He does not, however, opine that there was a mistranslation. The judge did, however, take into account in assessing the documents, the previous credibility findings and, importantly, that the appellant had been found by a jury to have lied before a criminal court, having pleaded not guilty.

Ground 2

33.          It is averred that the judge failed to make rational findings on the FIR and failed to take into account the material factors. This ground is, to a degree, dependent on the previous ground in that the judge attaches weight for doubting the FIR on the basis that it was

"of no little coincidence that after the previous decision of the Tribunal drew attention to the 'incorrect offence' (sic) being referred to in the newspaper article, that the FIR now provided refers to the specific offence with details of which the appellant was convicted".

34.          There is some merit also in the submission that the judge did not engage with the expert's detailed analysis of the correct legal references in the FIR but she was entitled to view the document in the light of the other evidence and credibility findings.

35.          I note Ms Blackburn's submissions that the FIR is somewhat long after the event and that there is little evidence that it was in fact issued as opposed to being produced by the authorities, perhaps to order.

36.          That said, the judge raised another issue as to the concern of the FIR in that she found it inconsistent with a police officer knowing a friend in his village being able to provide information that an FIR had been lodged with the appellant's inability to give evidence as to who the "religious fanatics" who had distributed leaflets about him are. I consider that an irrational consideration. It is further irrational to conclude the expert referring to the police of being under a duty to register an FIR without delay being dated several years after the offending is a point against its authenticity; the point is that they are under a duty to register an FIR without delay on it being reported to them. That report may of course be several years after the offending.

Ground 3

37.          I now turn to ground 3. As Mr Haddow submitted, the First-tier Tribunal was under a duty to make findings about the reliability or credibility about the appellant's wife's evidence. Although she does refer to the wife's evidence in several places and at others doubts it, it is less clear whether she accepted [44] in concluding that the appellant was not at risk.

38.          As Ms Blackburn submitted, the judge rejected the wife's evidence at [68] in certain aspects of the human rights claim and while it is indicative that she was not persuaded by her evidence, there is no express finding as to whether she accepted it or not.

Grounds 4 and 5

39.          I now turn to grounds 4 and 5. The expert has assumed, on the basis of what evidence is unclear, that knowledge of the fatwa will be spread across Pakistan. At [43] he states:-

"Moreover the pamphlet/leaflet which has been produced in respect of the appellant (and has been distributed in Pakistan) is a tool to demonise the appellant and malign him. It also contains a photograph of the appellant and states on his return to Pakistan he will be punished in accordance with Sharia law. I see many such examples of propaganda material which are so clearly to be against private citizens. I have examined the appellant's documents and they bear all the traditional hallmarks of legal, propaganda and media documents in Pakistan which are used to victimise persons such as the appellant who are in difficulties with the law in the UK".

40.          This, however, does not explain why he assumed that it has been distributed other than simply being produced in the accepted format. Further, at paragraph [51] the expert makes two leaps. First, without explaining why, he considers that the crime of which the appellant has been accused and in respect of which an FIR has been issued, falls within the definition of heinous crimes such that he would be sent to the Passport Circle for joint interrogation and subsequently being removed to the local police station. Second, he states that he appears to assume, without explaining why, an FIR would be considered to be "a charge" which would record him to be returned to the local police station.

41.          That said, as Mr Haddow submitted, this is the expert's opinion. He is entitled to give his opinion, as an expert on how the Pakistani authorities would act. This is not undue speculation; it is what an expert is supposed to do.

42.          With regard to the risk of "double jeopardy" it is of note that although the expert refers to the possibility of the appellant being charged with the offence for which he had been convicted overseas and for which he had been punished, he does not come to a definite conclusion. The expert does, however, [46] say that his opinion is that the appellant must face the charges against him elaborated in the FIR at [48] and whilst it is technically correct that the appellant cannot as a result of his UK conviction be resentenced in Pakistan there is no guarantee that he will automatically be given the benefit of double jeopardy.

43.          It is not, however, an error for the judge not to deal with the conditions of detention [10.2] in the skeleton argument given the conclusion that he was not at risk of detention.

44.          Taking these grounds into account, I consider that, cumulatively, the judge has failed to reach sustainable conclusions with respect to the documents, the wife's evidence and the expert's opinion. Accordingly, for these reasons, I am satisfied that sufficient grounds were made out such that the decision in relation to Article 3 is not made out.

Article 8 grounds

45.          I have, nonetheless, gone on to consider the challenges to the judge's findings on Article 8. I consider the decision in Sicwebu v SSHD [2023] EWCA Civ 550 can be distinguished on the basis of its factual matrix. Whilst in that case the judge had concluded that a wife who had managed when an appellant was in prison and would therefore manage again failed to take into account her serious health problems which fluctuated significantly over time and failed to take into account that she may become unwell and unable to look after the child. That is not a consideration here. Also to be borne in mind is the age difference between the children. In Sicwebu they were young; in this case the younger child was 16 and 8 months. As Ms Blackburn submitted, there is no proper suggestion here that separation would be permanent. The child could visit Pakistan as could the wife. Further, in Sicwebu the Upper Tribunal Judge did not make any findings about the wife's evidence of the difficulties she would face, unlike the situation here, and failed to take into accounts specific to the child, N (see paragraphs 52 and 60 of Sicwebu in particular). Further, the period in prison was when the child was significantly younger.

Ground 7

46.          There is no merit in this ground. The judge was manifestly entitled to attach little weight to the social work reports given that they were at least six years old and the children were by the time of the appeal six years older. The older one was no longer a child and the younger was now 16, nearly 17.. A difference of six years in the context of a child ageing from 10 or 11 to 16 or 17 is a significant difference. The submission that she treated the report irrationally is misconceived and the passage relied upon - relating to the child stopping to go to football practice - is now significantly in the past. To that extent, any misunderstanding why he had not attended football sessions is no longer a relevant matter. There is no perversity in the reading of the social work report, at paragraph 68 she was entitled to conclude that the practical effects of the removal of the appellant given the child's age now would be significant or emotional.

Ground 8

47.          This ground is hopeless. It is sufficiently clear from the decision when read as a whole that the judge bore in mind that she had to consider first whether Exemption 1 or Exemption 2 were made out before going on to consider Section 117(6). She clearly did so, finding that removal would not come within the exemptions, before going on at [87] to direct herself in law as to what had to be considered if those tests were not met. That is in accordance with the law and it is manifest from the decision that the judge knew full well what the test was under Section 117C (5), and in respect of the exemptions.

Grounds 9 and 10

48.          The judge was entitled to conclude that there was no evidence of positive rehabilitation. This is precisely the case where the only evidence of rehabilitation is that no further offences have been committed that being the reasoning behind the letter from Police Scotland and indeed the other evidence which the judge relied on. It is incorrect to state that the change in reoffending risk to low is evidence of positive rehabilitation where that assessment, as noted above, was made precisely on the basis of an absence of convictions.

49.          The judge had the opportunity of assessing whether the appellant was truly remorseful for his actions concluding that he was not and to which she gave adequate and sustainable reasons. It is telling that there is no direct challenge to that conclusion.

50.          Having properly concluded that there was no evidence of positive rehabilitation, the judge cannot be said to have misapplied HA (Iraq).

51.          Further, and in any event, as Ms Blackburn submitted, rehabilitation is unlikely to attach much weight in a case where, as here, the judge had properly found that the appellant was an unremorseful sex offender against minors.

52.          For the reasons set out above I am satisfied that the decision with regard to Article 3 will need to be re-made. I am satisfied because of the matters raised in the additional bundles provided and in respect of which an application pursuant to Rule 15(2A) has been made, that the matter should be remitted to the First-tier Tribunal. In consequence, and as there may be findings made about where the appellant can live in Pakistan, and thus I set aside the article 8 findings also to be remade. As a child in this case will turn in 18 in October 2025, it may well be that by the time this case is heard again, that Exemption 2 will not be applicable.

Notice of Decision

(1)           The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.

(2)           I remit the decision to the First-tier Tribunal for a fresh decision on all issues.

 

Signed Date: 2 May 2025

Jeremy K H Rintoul

Judge of the Upper Tribunal

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