Mahmood v Secretary of State for the Home Department

This is the renewed application for permission to appeal against the decision of the Upper Tribunal on 2 May 2014 allowing the Secretary of State’s appeal against the decision of the First-tier Tribunal on 4 March 2014. The First-tier Tribunal allowed the appeal of the applicant, Raja Khalid Mahmood, against the refusal of leave to remain in this country on the basis of his family and private life. That decision was made by the Secretary of State on 11 June 2013. Another Upper Tribunal judge refused permission to appeal to this court in a decision dated 3 July 2014.

The background facts can be summarised shortly. The applicant arrived in this country in June 2006, aged 34. He obtained leave and a visa following an appeal against a previous refusal on the basis that he had had a settled family in Pakistan and would return there. In the course of those proceedings he did not mention the core basis of his present application, which was that his two sisters died in an earthquake in Pakistan in October 2005 in which his village had been destroyed. That, he stated, left him with no ties to Pakistan, particularly because his marriage had broken down and he had no contact with his son. He also felt he would not be able to secure employment on his return to Pakistan or find adequate accommodation.

Following the Secretary of State’s decision, the applicant appealed. The First-tier Tribunal allowed the appeal in the determination promulgated, as I have said, on 4 March 2014. Although the appeal was allowed, the First-tier Tribunal judge, Tribunal Judge Sweet, stated that no satisfactory explanation had been given as to why the earthquake and consequential family losses were not mentioned at the appeal hearing prior to the grant of leave and a visa to the applicant in 2006. The judge considered the credibility of the death certificates of the applicant’s mother and two sisters. He stated that there was clear objective evidence of an earthquake having taken place. He accepted the applicant’s account of being kept in a tented camp until his uncle, who was effectively the sponsor behind his obtaining a visa, was able to assist him. The First-tier judge held that the applicant qualified under paragraph 276ADE (vi) of the Immigration Rules and that if he was mistaken about that he would allow the appeal under article 8.

In the Upper Tribunal, the Secretary of State’s appeal came before Deputy Upper Tribunal Judge Juss. The Secretary of State contended that First-tier Tribunal Judge Sweet had erred in his approach to paragraph 276ADE and his assessment of whether it was unduly harsh to expect the applicant to return to Pakistan where he had spent the first 34 years of his life.

The Deputy Upper Tribunal Judge gave four reasons for concluding that the First-tier Tribunal judge erred in law. First, that, despite finding that there were serious failings in the evidence as to whether the applicant could relocate to Pakistan and whether he would have family members there, and not being satisfied that the applicant could give a satisfactory explanation as to why the earthquake and consequential loss had not been mentioned at the appeal hearing, he concluded that his appeal should be allowed.

Secondly, the First-tier Tribunal judge erred in having regard to the fact that an earthquake had in fact taken place as a reason for overlooking the evidential failings and the failures to mention facts now relied on at the appeal in 2006.

Thirdly, the judge made no finding as to the validity of the death certificates. He had not evaluated them in the context of Tanveer Ahmed, and the discrepancies in the evidence as to, for example, whether the applicant had flown to the United Kingdom from Lahore or from Islamabad, and whether his uncle had sent him the ticket or merely the money with which he bought the ticket.

Finally, Deputy Upper Tribunal Judge Juss stated that First-tier Tribunal Judge Sweet gave no explanation for his conclusion that, since the applicant had been in the United Kingdom for over seven years, it would be difficult for him to find employment in Pakistan.

The Deputy Upper Tribunal judge remade the decision and dismissed the appeal. He did so for essentially for the same reasons as he had given for concluding that the First-tier Tribunal had erred in law. He relied on the fact that neither the applicant nor his representative had mentioned the earthquake and the family loss at the March 2006 appeal hearing. He said that was such a fundamental failing that it went to the veracity of the claim, which he found to be a complete fabrication. Secondly, he said there was no evidence that the applicant and his wife did not have a viable relationship. The deputy judge also rejected the contention that there was no contact between the applicant and his wife and child. There was no evidence of any disagreement between them. Thirdly, he did not accept that the death certificates were genuine. He stated that he had to look at the evidence in the context of Tanveer Ahmed and the fact that the applicant had sought, by whatever means possible, to extend his stay in the United Kingdom in an unlawful manner. He also rejected the submissions that the applicant was involved in any meaningful way with his uncle’s charity or that he would not be able to resume employment in Pakistan.

The Deputy Upper Tribunal judge also concluded that, although the Article 8 issues had not been raised before him, the applicant could not have succeeded on the basis of his Article 8 rights. First, he was not entitled to remain under the Immigration Rules on the basis of his private life because he had not lived in this country for at least 20 years and, on the findings he had made, had not severed his ties with Pakistan. Although there was evidence of a private life in this country, and there was a private life, the evidence of that life was described as “weak and not such as to satisfy either the Immigration Rules or lead to success under the previous Article 8 jurisprudence”. He applied the decisions of Sales J, as he then was, in Nagre v SSHD [2013] EWHC 720 (Admin) and the Upper Tribunal Asylum and Immigration Chamber in MF (Nigeria) [2002] UKUT 00393. He referred to Nagre adding “a new proviso” whereby it would not always be necessary to move onto a second stage and consider article 8 proportionality apart from the provisions of the Immigration Rules.

The written grounds of appeal are that the approach taken in relation to Tanveer Ahmed and the documents cannot stand in the light of the decision of the Strasbourg court in Singh v Belgium (application no. 33210/11). It was held in that case by the Strasbourg court that there is an obligation on a state to verify the authenticity of documents relied on by an applicant and without doing so it is not open to the state to say they are not reliable so that Tanveer Ahmed is no longer good law.

Reliance was also placed and emphasised in his focused and clear submissions by Mr Sharma today on the fact that permission has been given to consider the status of Tanveer Ahmed in the cases of AM (Bangladesh) and MA (Bangladesh). Those cases differ not only in involving Bangladesh rather than Pakistan but also in involving questions of asylum rather than pure human rights. Mr Sharma argued that since those cases were to come before the court he thought in July this year it would be appropriate to have this case as a counter so that the continued relevance of Tanveer Ahmed could be considered in another scenario. He sought to distinguish the decision of PJ (Sri Lanka) [2014] EWCA Civ 1011 on the ground that that was dealing with a general approach to be adopted when local lawyers obtained documents from the domestic court, that in that case there were logistical difficulties because of the number of documents and the cost, whereas here there was a small number of documents, and because of the recognition in PJ that this is an issue to be considered on a fact-sensitive basis.

The second ground of appeal has, as often happens quite legitimately, been refined in the oral submissions. The written grounds were that Nagre is no longer good because it was expressly overruled in MM (Lebanon) [2014] EWCA Civ 985. That was not pursued. Mr Sharma was right not to pursue it. It was clear from the decision in Singh [2015] EWCA Civ 74 at 62, 64 and 67 that MM (Lebanon), which was relied on, does not in fact undermine the judgment of Sales J in Nagre, and in any event Sales J’s approach in Nagre had been endorsed in this court, presided over by the Master of the Rolls in MF (Nigeria) [2003] EWCA Civ 1192. What Mr Sharma submitted was that the Upper Tribunal was wrong to interfere with the First-tier Tribunal judge’s decision, that the decision was one that was open to him, and that the Upper Tribunal substituted its own decision without asking whether Tribunal Judge Sweet’s decision was open to him.

I reject this submission. The Upper Tribunal decision, between paragraphs 19 and 26 which I have summarised, gave clear reasons for concluding that the judge in the First-tier had erred in law. The Upper Tribunal (Immigration and Asylum Chamber) is an expert tribunal. It is (see the observations of Lord Carnwath in Jones v Supreme Court) entitled to take a broad view of what constitutes an error of law and to look closely at inferences from the factual material. In these circumstances I do not consider that it was not open to Deputy Upper Tribunal Judge Juss, a judge with considerable experience in Immigration law, to reach the conclusion that he did. I therefore, notwithstanding Mr Sharma’s able submissions, refuse this application.