In protection claims, even if some evidence is not credible, a holistic approach should be taken, says the Court of Appeal in WAS (Pakistan) and SSHD [2023] EWCA Civ 894
Introduction
In the case of WAS (Pakistan) and SSHD [2023] EWCA Civ 894, Court of Appeal confirmed that in protection claims, even if some evidence is not credible, a holistic approach should be taken.
Brief facts of the case
The Appellant initially entered the UK on a student visa, but his subsequent applications to stay (first as the spouse of a British national, and then as someone under humanitarian protection) were refused by the Home Office.
Why did the Appellant bring an appeal?
The Appellant appealed to the Court of Appeal because he believed the Upper Tribunal (UT) had wrongly dismissed his protection claim.
The Appellant was a member of the Muttahida Quami Movement (MQM), a political anti-government movement in Pakistan. Whilst living in the UK, he had attended numerous demonstrations over the years, including ones at Downing Street and in front of the Pakistan High Commission. He presented photographs of himself at these events in support of his appeal.
In addition to the photographs, he also provided screenshots from his Facebook account with images and posts of himself supporting the MQM; twitter activity; a witness statement from himself; and a letter from the head of the MQM in North London.
In their decision, the UT found that these images provided no identifying information; the letter from the head of the MQM listed different activities from the Appellant’s account; and that there was no information provided as to the frequency or publicity of his meetings with the MQM.
The UT had dismissed the case, finding that the Appellant had failed to establish what his activities were and whether they had come to the attention of the Pakistani authorities. Most damaging, the UT had found the Appellant to be “a witness lacking in credibility” and that the evidence was “exaggerated or unsupported.”
As the UT did not find the Appellant’s political activities to be genuine, they therefore found that he would not have to hide his political views if returned to Pakistan.
The grounds of appeal
The Appellant appealed to the Court of Appeal on the following two grounds:
- The UT had contradicted itself
In their judgement the UT had also agreed that the Pakistani authorities were monitoring and identifying dissidents, and that as such, there was in fact a “reasonable likelihood” that such a person would face persecution on return to Pakistan. Therefore their conclusion as noted above, was contradictory.
The case of YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 was also cited, where Sedley LJ said that if dissidents were suppressed by the government, and this was supported by objective evidence, then there was “a strong possibility” that demonstrators would be photographed and identified.
Furthermore, the Appellant’s representatives reminded the Court of Appeal that a genuine supporter cannot be expected to silence themselves in order to avoid persecution, in line with HJ (Iran), which is a landmark case that found that asylum seekers could not be reasonably expected to hide their sexual orientation (or other attributes) in order to avoid persecution in their home country.
- The UT had failed to properly consider the Appellant’s political commitment and that he was at risk from the Pakistan authorities in light of HJ (Iran))
It was submitted that the UT had incorrectly concluded that the Appellant was not a genuine supporter. He argued that the UT had made up their minds that the Appellant’s activity was self-serving and missed (or dismissed) evidence that contradicted their view, such as his political Facebook post in 2013.
Furthermore, according to his legal representatives, the UT had not been able to articulate how the Pakistani authorities would distinguish a “genuine” supporter from a supporter. Besides, they argued, “genuine” support was not required under the Refugee Convention.
Court of Appeal’s (CoA) decision
Lady Justice Elisabeth Laing, who gave the determination, acknowledged that she had not found this an easy case. While she respected the UT’s expertise, she saw various errors with their decision.
Regarding the first ground of appeal, the CoA found that the UT had imposed “too demanding a standard of proof” on the Appellant by finding that they had not provided enough evidence to demonstrate that Pakistani authorities were monitoring dissidents in the UK. In support of this, they referred to the expert report which was submitted by the Appellant which found that simply supporting the political movement was a risk factor, one did not need to be a senior member to be in danger. In their determination the UT had accepted that the Pakistani authorities were monitoring activities. But still found that insufficient evidence had been submitted.
The CoA ruled that the UT had allowed their belief that the Appellant exaggerated his role to push evidence to the periphery. As Lady Justice Laing wrote, “Findings that some aspects of a witness’s evidence are not credible should not, in a protection claim, be generalised to all his evidence” (italics added). The lower standard, more likely than not, in her view, must be considered by fact finders. For those reasons, she allowed the appeal on ground 1.
Regarding the second ground of appeal, Lady Justice Laing found that the UT had been so caught up with whether or not the Appellant’s political activities were genuine (or genuine enough) that they had overlooked whether he would be at risk on return to Pakistan. The First Tier Tribunal (FTT) had accepted that the Appellant had been active politically since 2009, long before his arrival in the UK. However, the UT had rejected this in their recent determination, without explaining why. Lady Justice Liang criticised the UT for “down-playing, if not ignoring” the evidence supporting this. Therefore, she allowed the appeal as well on ground 2.
Having allowed the appeal on both grounds, the Court of Appeal stated they were inclined to remit* the appeal, saying that it was for a specialist fact-finder to assess the evidence again.
*Remitting means sending the case back to either the FTT or UT to review the evidence again and make a new decision.
What does this mean for those making protection claims?
This case confirms that evidence presented for a humanitarian protection claim need to be considered in the round, and that simply because some evidence is found to not be credible, that should not detract from the credibility of other pieces of evidence.
If you have a current humanitarian protection application pending or would like to make one, please contact Descartes Solicitors for expert immigration advice. You can call us at 0208 995 3556 or email info@descartessolicitors.co.uk.
By Tiffany Carpenter