WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894 (26 July 2023)
In a difficult case, Elisabeth Laing LJ allowed the appeal of "WAS" against the dismissal of his asylum claim by the Upper Tribunal owing to the fact that UTJ McWilliam "failed properly" to consider the factors relevant to WAS's commitment to the notorious person of Altaf Hussain (founder of the Muttahida Qaumi Movement or "MQM") and the effect on risk to him from the Pakistani authorities applying the historic judgment in HJ (Iran) v SSHD [2010] UKSC 31. The appeal was also allowed on the basis that the UT's findings were contrary to the FTT's preserved findings and contrary to the UT's own conclusions. WAS entered the UK in June 2012 as student. In December 2015 he made an application for further leave to remain (as the spouse of a British citizen) which was refused in 2016. He then made a protection claim in October 2017 on the basis of his actual or perceived political opinion. He said that he was a member of the MQM, an opposition movement in Pakistan. The protection claim was refused in April 2018. The FTT dismissed his appeal in June 2018 and found that he was an active member of MQM in Pakistan for about 3 years from 2009 to 2012 and that his father is an active supporter of MQM. The FTT said that his credibility was damaged by the fact that he had not claimed asylum until October 2017 in circumstances where his political affiliations had not changed.
The FTT decided that was a current MQM member and was likely to continue to support the MQM should he return to Pakistan. It accepted WAS's 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. The UT dismissed a further appeal in May 2019 and he made an assertion in further representations that he had also been disinherited by his father. In a decision dated 18 November 2019, the SSHD accepted that WAS's further representations were a fresh claim for the purposes of paragraph 353 of the Immigration Rules but refused that claim. The appeal to the FTT was dismissed again and the FTT said that in light of the first FTT and UT decisions and applying Devaseelan [2002] UKIAT 00702 both tribunals had found that WAS was a low-level MQM member in London and would not be at risk on return to Pakistan. The UT gave WAS permission to appeal as to the second FTT determination. In a determination promulgated on 18 September 2020, the UT found a material error of law in the FTT's determination and set it aside. In sum, the UT held that while the FTT 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). The UT noted that there had been no challenge to the FTT's adverse credibility findings.
The UT directed that several findings of fact made by the FTT should be preserved. Those were the FTT's findings of fact about threats to his family in Pakistan' a finding about the receipt of financial support, and findings as to his involvement in MQM and his Facebook account so far as they related to his sur place activities up to the date of' the FTT hearing. The UT also decided hat it would retain the appeal and the decision would be re-made to determine whether WAS would face a real risk of persecution if removed to Pakistan on account of his actual or perceived involvement with the MQM London applying HJ and it would also consider, if necessary, the issue of internal re-location.
Preserved findings
In its preserved findings, the FTT considered that WAS had indeed shown that he was a member of MQM London and a committee member of the North London unit. There was also a photograph of Altaf Hussain on his Facebook account.
He was an active member in the sense of administration and organisational activities and attended some meetings and some demonstrations. But, on the lower standard of proof, he was not active politically in MQM London. The FTT decided that it had accepted WAS's evidence that a Facebook account for "Vick Shapman" (which sent a birthday message to Mr Altaf Hussain) was associated with him. However, that there was no evidence of any political content which would put him at risk in Pakistan and the account was apolitical.
Upper Tribunal
The final UT hearing was on 12 July 2021. Consequently, its decision ("Determination 4 in the Court of Appeal's judgment) was promulgated on 30 March 2022. Both parties had instructed counsel. WAS relied on three witness statements and he gave oral evidence.
The UT considered a variety of in-country information about Pakistan, including reports and news articles. Notably, Dr Owen Bennett-Jones, freelance journalist and writer, and a former BBC correspondent/presenter and author of "The Eye of the Storm" gave evidence at the hearing and gave oral evidence. The UT gave a brief overview of the MQM in its determination, noting that it was founded in 1984 to campaign for the rights of the Urdu-speaking Muslims, known as Muhajirs, who had left India for Pakistan in 1947 at the time of Partition. It is a secular party based in Karachi, and it promotes the rights of Muhajirs. MQM London boycotted the 2018 general election and MQM Pakistan won 7 seats and became a member of the governing coalition. It is the main opposition party in Sindh and Altaf Hussain was arrested in London on charges of encouraging terrorism in Pakistan. He had been the subject of two previous criminal investigations. But neither resulted in charges and he was acquitted. (The word Muhajir literally means refugee and was used instead of Muttahida until 1997.)
The UT took the view that Dr Owen Bennett-Jones's evidence that informers identified those responsible for media posts was speculative and insufficient to discharge even the lower "real risk" standard, although the UT did not rule out that it could happen.
The UT said that there was no evidence about or from returnees about information being provided to the authorities by members of MQM London. No such members had given evidence. The UT took into account the evidence about this in WAS's witness statement.
Expert evidence
Dr Owen Bennett-Jones gave evidence that MQM had started by representing refugees to Pakistan and their descendants. It had become violent, and had, in turn suffered violence. It survived in part by fears and is strong in the Sindh, where most of the refugees settled, particularly in Karachi and Hyderabad and its support as a coalition partner is generally needed by the government. Altaf Hussain had become estranged from the state after his speech in 2016 in which he denounced the Pakistan army and the idea of Pakistan as "a cancer". MQM supporters then rampaged through Karachi but the state decided to break MQM and relied on the Rangers to do that.
Altaf Hussain's 2016 speech prompted and the consequences which followed caused two factions to break away from the MQM, i.e. MQM London and MQM Pakistan. The latter said that he should be tried for treason. Since the speech, MQM London members have faced risks in Pakistan and they have been killed without trial. They tend to be tried in military, not civilian, courts. Many political activists in Pakistan are held without being charged. Dr Owen Bennett-Jones's sources in Karachi explain that the state targets MQM London members but this is difficult to corroborate.
Imran Khan's premiership (2018) imposed greater restrictions on the press and the 15-20 UK journalists writing for the media in Pakistan realise that their editors will not like it if they give prominence to MQM London. Dr Owen Bennett-Jones's instinct is that there are unreported cases. In 2016, the United Nations Human Rights Committee ("UNHRC") had expressed concern about 97 cases of enforced disappearances, nearly all of whom had been arrested in Karachi and many of whom were reported to be linked to the MQM. The state did not have a dispute with MQM Pakistan, so it was reasonable to infer that these were MQM London supporters.
In 2019, the UNHRC said that there had been 300 enforced disappearances since 2016. The true figures were probably significantly higher. Some of those who had disappeared were violent jihadis, but not recently. The numbers were down in recent years, probably reflecting the success of the campaign. Dr Owen Bennett-Jones stated that few MQM members in urban Sindh declare allegiance to Altaf Hussain. It is not possible for MQM London to have an open presence in Pakistan and those who express their support "face prison or worse". It was said that Pakistani authorities are now better at monitoring social media and a state organisation known as Inter-Services Public Relations ("ISPR") can identify foreign posts on social media, and give an article by a journalist to the dreaded Inter-Services Intelligence ("ISI"). ISPR can identify Facebook posts and social media posts form a foreign source. ISPR is primarily aimed at journalists in Pakistan and abroad. If a pro-Altaf Hussain tweet is posted, and its author cannot be identified, the state would ask an informer in MQM London. One of his own Tweets, Dr Bennett-Jones claimed, was picked up by ISPR which is primarily aimed at journalists in or outside Pakistan.
No evidence exited that the authorities had lists of the members of the two MQM factions but a person who regularly attends demonstrations outside the Pakistan High Commission is probably known by the authorities which would know if MQM London had organised a seminar. Not know everyone who attends would be known to the authorities, but persons who attended regularly would be identified. Dr Bennett-Jones also stated that coming to the ISI's attention determined risk to a MQM London member, and the risk would depend on the member's level of activity rather than on his seniority. WAS was from Hyderabad and it was plausible that he made contact with MQM London in London. While he was not very senior, as a committee member with a profile on social media, he was likely to have come to the attention of the ISI. If they have not done so already, someone in MQM London was likely to pass on this information to the ISI. It was likely that the authorities would be waiting for him at the airport. That there was no arrest warrant would make no difference.
Dr Bennett-Jones claimed to know that members passed on information to the authorities. If WAS was not detained on arrival, he would have to move to another part of Pakistan. He would have to go to Lahore and start again. He would have to be careful. It would be difficult to get a job. He would be picked up by the ISI. He could save himself by giving information about MQM London, denouncing Altaf Hussain and switching sides and if not he would be tortured or killed. If he continued his support of MQM London, it would be "game over". Dr Bennett-Jones's evidence was that switching sides was the only way to survive and no-one in Pakistan who was in his "right mind" would say they supported Altaf Hussain. Only very hard-core members would admit their support for him.
He said that the Pakistan High Commission review passport applications. Those made by MQM London members would definitely be of interest to the authorities. He was unable to prove this, but Dr Bennett-Jones opined that if WAS needed to apply for a passport, he would come to the attention of the authorities. Those who were arrested or prosecuted by the authorities were known as "target killers". Thus WAS could face a claim that he was a target killer even if that was not true and information about the number of MQM London target killers arrested would not be public. Most are processed by military courts—some are tortured and killed. Only high profile cases were publicised. The position was chaotic and those arrested and charged as target killers might be associated with the killings with which they were charged. It was difficult to say whether the label of "target killer" was an accurate description.
The Court of Appeal
Elisabeth Laing, Phillips and Baker LJJ unanimously allowed the appeal on both grounds.
WAS relied on the UT's findings in Determination 4 that the Pakistani authorities wanted to eliminate Altaf Hussain and his power base, that there was a well-resourced campaign against him and MQM London, that this extended to monitoring MQM London in London, that it was quite likely that the authorities in Pakistan would devote resources to identifying genuine supporters and members overseas, and that they would go to any lengths to ensure that he did not get any traction in Pakistan. WAS relied on the finding that a person identified as a supporter of MQM London would face a risk of persecution on return, and that a genuine supporter could not be expected to hide that to avoid persecution on return. Reliance was also placed in other determinations that he was an active member of MQM London in the sense of administration and organisational activities, who "attended some meetings and demonstrations" and a member of the committee of the North London unit. His case had been made out.
WAS argued that there was a reasonable likelihood that, on return to Pakistan, he would be identified as a supporter of MQM London in London and face serious risks. The UT had raised the standard of proof and required an undue level of corroboration as regards knowledge by the authorities in Pakistan of WAS's activities. The UT had given too much weight to its own sense that A's activity was self-serving.
Reliance was placed on Sedley LJ's statement in YB (Eritrea) v SSHD [2008] EWCA Civ 360 that:
18. … Where, as here, the tribunal has objective evidence which "paints a bleak picture of the suppression of political opponents" by a named government, it requires little or no evidence or speculation to arrive at a strong possibility – and perhaps more – that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups.
After having considered the appeal at length, Elisabeth Laing LJ said this:
77. I have not found this an easy case. Determination 4 is evidently the product of careful and thoughtful reading and analysis of the extensive evidence of the relevant political history and current conditions in Pakistan, and of a meticulous and thorough evaluation of A's evidence. The UT is an expert tribunal. It should be assumed to have understood, and correctly to have applied, the relevant law, unless it is clear that it has not done so. Nevertheless, after taking into account those considerations, and giving the appropriate respect to the UT's industry and expertise, I have reluctantly concluded that its reasoning is unsafe.
The parties agreed that WAS had to show not that he would be persecuted by reason of his political opinion, but that there was a serious, or real risk that he would be. There was also agreement that, if he was a genuine supporter of MQM London and of Altaf Hussain, he could not be required to hide that on his return to Pakistan in order to escape persecution.
There was some indirect support for the expert's evidence about the Pakistani authorities' knowledge about MQM London. They were aware of its activities in London and were committed to destroying Altaf Hussain and his power base. Since Altaf Hussain was in London, it was more likely that the authorities were monitoring activity by MQM London there. It was plausible that they would "invest resources in identifying genuine supporter/members overseas". They "would go to lengths' to ensure that Altaf Hussain's power base "did not gain traction in Pakistan". Support for him was a risk factor. Those identified by the authorities as associated with MQM London as "members supporters and workers" were at risk.
Elisabeth Laing LJ said that, on ground 1, three findings of the UT presented significant obstacles to the success of the appeal. First was its rejection of the expert's evidence that there was a real risk that MQM London members would give information to the Pakistani authorities to curry favour, and his evidence that those responsible for social media posts would be identified by informers. The second was that there was not enough evidence to enable the UT reasonably to draw conclusions about "the level of and the mechanics of monitoring" in the UK. The third was that while the security services could detect social media posts, they did not have the resources or capacity to detect all relevant posts, let alone to identify those responsible. Elisabeth Laing LJ said that in YB (Eritrea), Sedley LJ was not suggesting that a tribunal must infer successful covert activity by a foreign state in the circumstances which he described. In her view:
84. … He was, nevertheless, making a common-sense point, which is that a tribunal cannot be criticised if it is prepared to infer successful covert activity on the basis of limited direct evidence. Those observations have even more force in the light of the great changes since 2008 in the sophistication of such methods, in the availability of electronic evidence of all sorts, and in the ease of their transmission. To give one obvious example, which requires no insight into the covert methods which might be available to states, it is very easy for an apparently casual observer of any scene to collect a mass of photographs and/or recordings on his phone, without drawing any adverse attention to himself, and then to send them anywhere in the world.
85. I consider that, on this aspect of the case, the UT erred in law by losing sight of the fact that direct evidence about 'the level of and the mechanics of monitoring' in the United Kingdom is unlikely to be available to an asylum claimant or to a dissident organisation, and by imposing too demanding a standard of proof on A. The UT repeatedly said that A [i.e. WAS] had not "established" things, that "cogent evidence" of something was absent, and that parts of A's evidence were not supported.
Elisabeth Laing LJ stated that a related point was that the UT's approach was to posit two mutually exclusive alternatives: a tiny level of support for MQM London which was not capable of drawing the attention of the Pakistani authorities, and, therefore, of putting WAS at risk on return, and the level of support which he described in his exaggerated but nevertheless nebulous evidence. She held that:
86. If that was the UT's approach, its danger is to obscure a third possibility, which is that, on the UT's other findings, A did support, or could be perceived to support, MQM-L to an extent which might, to the lower standard, attract the attention of the authorities and therefore put him at risk. I consider that the UT's findings that A had exaggerated his role (which were open to it on the evidence) dominated the UT's analysis of potential risk; and that the UT erred in law in this respect. There were photographs of A at demonstrations, and the UT accepted that he had been to four outside Downing Street and one outside the Pakistan High Commission. The UT accepted that the authorities would keep an eye on the High Commission. There was also a photograph of AH on A's Facebook account.
Allowing the appeal on the first ground, she found a recurrent theme in Determination 4 that WAS's evidence about aspects of his claim was not supported by other evidence, and, by implication, for that reason alone, to be rejected, without the need to consider, to the lower standard, its intrinsic probability. She noted that on at least three occasions, the UT observed that there was "no cogent evidence" that something was the case. The court held as follows keeping in view the need for anxious scrutiny:
87. … That theme indicates a linked error. That error is that the UT treated the specific preserved findings that A was not credible about particular aspects of his claim, coupled with their own findings that he was not credible about other aspects of his claim, as a proxy for analysing the relationship between their own general findings about risk, A's evidence generally, and the uncontested evidence about A's role. It is a trite proposition that credibility is not 'a seamless robe', even if, on analysis, some, or most of the evidence proves to be incredible. Findings that some aspects of a witness's evidence are not credible should not, in a protection claim, be generalised to all his evidence. The fact-finder must also consider the intrinsic likelihood, to the lower standard, of the significant aspects of his claim.
The court's concern about ground 2 was that Determination 4 gave the impression that the UT's view that WAS had fabricated or embellished his role in order to bolster his asylum claim distracted it from asking, as it should have done, whether his affiliation with MQM London was genuine, or genuine enough, to mean that he would or might nevertheless be at risk on return to Pakistan, to the lower standard. Per Devaseelan, the starting point was the first FTT determination where the FTT found that WAS had been an active member of MQM in Pakistan from 2009, and in England from 2012. His claim was rejected, in part, because of this long-standing allegiance to MQM which long pre-dated his asylum claim in 2017. There was no suggestion that this affiliation was not genuine. Also in the second determination, the FTT apparently also found that WAS had been a member of MQM in Pakistan in 2009. Elisabeth Laing LJ held as follows:
91. In Determination 4, the UT departed from that starting point without, in my judgment, explaining why it did not accept that A was a member of MQM before he came to the United Kingdom. It did not accept that he was a member of MQM in the United Kingdom before 2016, although it acknowledged in paragraph 141 (see paragraph 62, above) that there were Facebook posts in 2013 showing 'nothing more than that [A] was at that time a supporter of MQM and AH (before the split)'. It did not accept his evidence that he had been taking an active part in the affairs of MQM since 2012 and attending some events since 2014. More fundamentally, without explaining why, it departed from the basic thrust of determination 1, which was that A had been a member of MQM in Pakistan since 2009 and in England since 2012, and that his exposure as a result was no different in 2017, which cast doubt on the credibility of his asylum claim in 2017. The UT turned that approach on its head, by downplaying, if not ignoring, A's earlier allegiance with MQM in order to find, in paragraph 146, that A 'had not established a genuine commitment to MQM-L', and that the activity since 2016 was for the purpose of improving his prospects on appeal. The unexplained contradiction between the approach in determination 1 and in determination 4, and the acknowledgement by the UT of evidence of support by A for MQM and for AH in 2013, before the split, and before his unsuccessful application in 2015, and long before his asylum claim, seriously undermine the safety of the UT's conclusions that A's support for MQM was not genuine.
As to remedy. She was inclined to remit the case on both points. She do not consider, in the light of the complications in this case, and of the apparent contradictions/deficiencies in WAS's evidence (for example, about when he joined MQM London in the UK), that it is obvious that there is only one right answer. It is for a specialist fact-finder, and not for the court, to assess these questions again. The parties, if so advised, were at liberty from making further written submissions about remedy, and, in particular, about whether the appeal should be remitted to the UT or to the FTT.
Comment
The Court of Appeal was unimpressed that the UT had become too preoccupied with the preserved findings that WAS was not credible about particular aspects of his claim and treated it as a proxy for analysing the relationship between its own general findings about risk. Elisabeth Laing LJ was quite emphatic in her view that findings that some aspects of a witness's evidence are not credible should not, in a protection claim, be generalised to all his evidence. Moreover, the fact-finder must also consider the intrinsic likelihood—to the lower standard—of the significant aspects of his claim.
On the issue of expert evidence, Dr Owen Bennett-Jones stated that few MQM members in urban Sindh declare allegiance to Altaf Hussain. He said that is not possible for MQM London to have an open presence in Pakistan and those who express their support "face prison or worse". Altaf Hussain, or "Altaf Bhai" as he is popularly known in Pakistan, is credited with being Pakistan's most feared power broker who controlled the megacity of Karachi from London, and it is well known that he is accused of crimes such as "murder, money laundering, and terrorism" but that "he's down, but not out." Altaf Hussain is still a cult figure in Karachi. Despite being cut down to size in recent years he still has some support and just recently on the grounds of the High Court of Sindh at Karachi, I heard one of his supporters chanting "Jeay Altaf Bhai" or "Long Live Altaf Bhai". But overall there is no doubt that his old powerful friends in Pakistan have now dumped him because he is too much baggage and is of no use to anyone anymore and is headed for the dustbin of history.