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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003785
	First-tier Tribunal No: PA/58506/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 1 ^st of April 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE R FRANTZIS

 

 

Between

 

R.R.

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Alban (Seren Legal Practice)

For the Respondent: Mr Thompson (Senior Home Office Presenting Officer)

 

 

Heard at Cardiff Civil Justice Centre on 7 March 2025 by CVP

 

 

Order Regarding Anonymity

 

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

 

 

DECISION AND REASONS

Introduction

1.              I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal ("FtT") because the underlying claim involves international protection issues in that the Appellant claims to fear persecution or serious harm on return to India. In reaching this decision, I am mindful of the fundamental principle of open justice but I am satisfied, taking the Appellant's case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.

2.              The Appellant appeals with permission against the decision, dated 3 ^rd June 2024 ("the Decision"), of the FtT to dismiss his appeal on all grounds.

Background

3.              The broad factual background to the appeal is not in dispute between the Parties. The Appellant asserts that he would be at risk on return to India owing to an ongoing criminal court case filed against him by his ex-wife. The Appellant claims that he has missed a number of court dates and fears he will be arrested and imprisoned on return to India. The Appellant argues that prison conditions in India risk a breach of his rights under Article 3 ECHR. The Appellant further argues that his arrest and detention would result in his wife and son becoming destitute with his wife at risk as a lone woman with a dependent child. The Respondent refused the Appellant's claim to protection.

Appeal to the First-tier Tribunal

4.              The Appellant appealed against the Respondent's refusal. Both Parties were represented at the appeal hearing. In the Decision the FtT stated that:

(i)      I find the Appellant has sought to remain in the UK for different reasons ... I find the Appellant originally claimed asylum but then said he did not fear anybody in India, his motivation was to stay in the UK to improve his son's prospects. He now claims he will be imprisoned on return to India [25]

(ii)    I find that there appears to be an ongoing criminal case against the Appellant brought by his ex-wife [NK] ... I find it is not credible he would have been unaware of any of the developments in the case which took place between 2017 and when he left India in 2019. [26]

(iii) The Appellant claims his first knowledge of the ongoing case brought by his ex-wife was when he received a WhatsApp message from his sister in January 2023...The Appellant has provided what he says is a photograph of the arrest warrant sent to his sister. No statement has been provided by the Appellant's sister to support this claim and she has not provided evidence of her communication with [NK]. Furthermore, the Appellant has not provided the WhatsApp communication which he says he received from his sister. It was the Appellant's oral evidence that his sister has a good relationship with his ex-wife and that they speak on the phone. He also said the case brought by his ex-wife resulted in the need to sell his family home and land, and his mother's suffering before her death. Given the circumstances, it seems unusual that the Appellant' sister has a good ongoing relationship with NK. When asked about this during the hearing the Appellant was unable to provide a credible explanation and no explanation has been provided by his sister. [27]

(iv) The photograph of the arrest warrant appears to be one page of a larger bundle. The typed writing is in English and is stated to be a Warrant of Arrest, it is dated 14 July 2022. No evidence has been provided which addresses why the document was sent to the Appellant's sister some 6 months after it was generated. A significant amount of the writing on the document is in Indian and this has not been translated despite the fact it has been in the Appellant's possession for a number of months. The Appellant's name does not appear in English on the document. In the absence of a translation, I attach little weight to this document and find the Appellant has not demonstrated he will be detained if returned to India. [28]

(v)    There is very little information about the basis of the ongoing court case or its likely outcomes. I find the available evidence does not support a conclusion that the outcome will be a term of imprisonment for the Appellant. [29]

(vi) In reaching my conclusions I have taken into account what is said about pre-trial detention and prisons in the Country Policy and Information Note - India. I find this supports a finding that there are issues with the number of people being held on detention and prison conditions in India, particularly overcrowding. However, the Appellant has failed to show that they are so poor that exposure to them would expose him to a real risk of serious harm or the very high level of suffering necessary to engage Article 3 of the ECHR [30] .

Appeal to the Upper Tribunal

5.              The Appellant contends that the FtT has erred in law in the following ways:

i.         In failing to apply the lower standard of proof and in failing to give reasoned findings;

ii.       In requiring corroborating evidence;

iii.     In failing to consider objective evidence;

iv.     In their assessment of the arrest warrant;

v.       In their assessment of s55 Nationality, Immigration and Asylum Act 2002.

6.              In a decision dated 19 ^th July 2024 the FtT refused to permission to appeal.

7.              In a decision stamped on 10 ^th September 2024, the Upper Tribunal granted permission. That permission was not limited although observations were made in respect of the strength of certain of the Grounds of Appeal.

8.              At the error of law hearing, Ms Alban relied, and expanded, upon the Grounds of Appeal. Mr Thompson in response submitted that the Decision must be read as a whole and that the FtT had come to reasoned and sustainable findings, demonstrably informed by all of the evidence. I mean no disrespect to either advocate by not setting out their submissions in full; I have considered them carefully.

Discussion

Grounds 1, 3 & 4

9.              It is convenient to take these Grounds of Appeal together in light of how Ms Alban presented the Appellant's case before me. Ms Alban's argument was that in light of the FtT's finding at [26] that there appears to be an ongoing criminal case against the Appellant brought by his ex-wife and given that he has missed court hearings and that there is a warrant for his arrest, it must follow to the lower standard that he will be arrested and detained upon return to India. Owing to prison conditions in India, the Appellant must, to the lower standard, succeed on Article 3 ECHR grounds. As such, Ms Alban contends, in finding to the contrary the FtT must have applied too high a standard of proof and/or failed to consider the evidence before them and/or failed to give adequate reasons for so finding.

10.          For the following reasons I do not find that the FtT has erred in law as contended for in Grounds, 1, 3 and 4 and by Ms Alban before me.

11.          It is clear that the FtT properly directed themselves as to the applicable standard of proof in matters concerning international protection namely "a basis lower than the civil standard of the balance of probabilities" and "real risk" [15, 31] and there is no suggestion in the Decision that the FtT has demurred from this approach.

12.          The FtT has made the following unchallenged reasoned findings which are adverse to the credibility of the Appellant's account to fear being arrested and detained on return to India:

                                i.             Having originally claimed asylum in July 2021 shortly after being detained by police (the Appellant's visit visa had expired on 1 ^st March 2020), the Appellant then stated in his substantive interview, which he has not sought to correct, that he did not fear anybody in India and that his motivation was to remain in the United Kingdom to improve his son's prospects [25]

                              ii.             there was a period of about two years between when the Appellant thought the case against him had been settled and when he left India in 2019. The court records indicate there were about 7 hearings during this time and the purpose of these hearings is described as 'appearance'. The Appellant claims to have been unaware of both these hearings and the fact that the case was ongoing. However, he did not appear to be suggesting he had trouble receiving communication about his case before 2017 and it is not credible he would have been unaware of any of the developments in the case which took place between 2017 and when he left India in 2019 [26];

                            iii.              the Appellant's delay in claiming asylum and the use of false details damages his credibility [19].

13.          As to the FtT's consideration of the arrest warrant specifically, Ms Alban crystallised her argument as follows: the FtT has erred in failing to link the FIR number (-118/11) and name S.D.J.M Patna on the arrest warrant to the documentation from the criminal case against the Appellant that it was accepted was ongoing. Neither the number nor the name is typed on the arrest warrant and I do not find the FtT has erred in their consideration of that document for the following reasons:

                                i.             First of all, in addition to the points taken as set above at [12], the FtT found that there was no evidence of the WhatApp message sent to the Appellant from his sister in January 2023 informing him that the court case was ongoing and that there was a warrant for his arrest. There was no evidence from the Appellant's sister of her communication with NK. It was unusual that the Appellant's has a good relationship with NK [27]. Whilst the Grounds of Appeal at 2.1 state that the FtT erred in requiring evidence in corroboration of the Appellant's account neither the Grounds, nor did Ms Alban before me, elucidate this point further. Ms Alban accepted this was not her strongest point and I agree with that pragmatic stance: there is no error in the findings of the FtT that evidence reasonably available to the Appellant was not placed before them;

                              ii.             Second, the FtT was entitled to take into account the fact that no evidence had been provided which addresses why the arrest warrant was sent to the Appellant's sister some 6 months after it was generated [28];

                            iii.              Third, the FtT rightly observes that a significant amount of the writing on the document has not been translated despite the fact it has been in the Appellant's possession for a number of months. There is, for example, untranslated writing above and below the handwritten number -118/11 rendering it absent that specific context;

                            iv.             Fourth, the FtT noted that the Appellant's name does not appear in English on the document [28];

                              v.             Fifth, the FtT makes the findings above in the context of noting that the photograph of the arrest warrant appears to be one page of a larger bundle which I note was not provided to the FtT;

                            vi.             Finally, I agree with the point made by Mr Thompson that the FtT was entitled to attach little weight to the arrest warrant in the absence of a certified translation. It was for the Appellant to demonstrate what the handwritten numbers and manuscript on the arrest warrant said and that they had been written at the time claimed. The evidence relied on by Ms Alban must be considered in the round in the context of the findings set out above. The FtT has not fallen into any material error of law.

14.          Contrary to Ms Alban's submission, I do not accept that the fact of an ongoing criminal case, regardless of the existence of an arrest warrant, would to the lower standard lead to the Appellant's detention and in not so finding the FtT has erred. Having accepted that the law in India allows someone with a legitimate cause or grievance to avail themselves of remedies available in criminal law, the FtT found that " There is very little information about the basis of the ongoing court case or its likely outcomes. I find the available evidence does not support a conclusion that the outcome will be a term of imprisonment for the Appellant". [26] Ms Alban relied upon the CPIN - India: Actors of Protection V. 2 June 2023 at 9.1.1, that pretrial detention was arbitrary and that 77% of the prison population were awaiting trial at the end of 2021 to support her contention that it was reasonably likely that the Appellant, with no access to legal advice or assistance, is reasonably likely to be detained. Having read the Decision it is evident that the FtT had regard to the CPIN and the arguments put on behalf of the Appellant [7, 9.1, 23, 30]. The evidence relied upon by Ms Alban does not support her assertion that the only conclusion open to the FtT was that the Appellant was reasonably likely to be detained: that 77% of the prison population are pre-trial is not the same as saying that 77% of those awaiting trial will be detained. Furthermore, as the Respondent contended before the FtT and Mr Thompson before me, the Appellant was not harmed or arrested between 2017 and 2019 despite being in India and appearing to have missed court hearings.

15.          As to the FtT's consideration of the background information from the USSD Report on Human Rights Practices of 2022 and prison conditions in India:

i.         First of all, for the reasons set out above the FtT was entitled to find that the Appellant had not shown that he was at real risk of detention and as such this complaint cannot be material;

ii.       Second, I note that it appears that the full report was not before the FtT. The report was referred to in the quotation from the CPIN of June 2023 found in the Appeal Skeleton Argument ("ASA") submitted on the part of the Appellant;

iii.     Third and in any event, the FtT was entitled to find on the evidence that the Appellant had not shown that the prison conditions in India were " so poor that exposure to them would expose him to a real risk of serious harm or the very high level of suffering necessary to engage Article 3 of the ECHR" [30]. The CPIN considered by the FtT reports from a number of sources, including the USSD Report, which cite overcrowding and at paragraph 9.2.1 notes a 2020 DFAT report that " Prison conditions vary from prison to prison". This was quoted in the ASA and the FtT's finding that the evidence " supports a finding that there are issues with the number of people being held on detention and prison conditions in India, particularly overcrowding" [30] but not such to amount to a breach of Article 3 ECHR is sustainable.

16.          I do not find that the only conclusion open to the FtT, in light of the evidence before the Tribunal and the findings and reasons set out in the Decision, was that the Appellant would be detained upon return to India and that he was at risk of treatment contrary to Article 3 ECHR. The FtT has not erred in their consideration and analysis of the evidence.

Grounds 2 and 5

17.          As I set above Ms Alban did not press Ground 2 and she was correct not to do so. There is no error in the findings of the FtT that evidence reasonably available to the Appellant was not placed before them.

18.          Insofar as Ground 5 is contingent upon a finding that the Appellant would find himself detained upon return to India, for sustainable reasons, the FtT has not found that reasonably likely to be the case and thus the argument is not made on out that basis.

19.          Although Ms Alban sought to advance that the FtT has erred in failing to consider the impact of the court case on the family's return to India and his son specifically, I do not find that there is merit in that argument:

i.         First of all, as set out above the FtT has made a finding that " There is very little information about the basis of the ongoing court case or its likely outcomes";

ii.       Second, at [38] the FtT demonstrably considers where the best interests of the Appellant's son lie;

iii.     Third, the FtT makes findings that the Appellant and his wife are nationals of India where they grew up with their families and lived for many years: they are completely familiar with the cultural of that society and speaks the language ... there are no very significant obstacles to their integration in India [34] and that the Appellant and his family will be able to live, work and form social networks in India [38].

Conclusion

20.          For the reasons set out above, there is no error of law in the Decision of the FtT.

Notice of Decision

The Decision of the FtT does not involve a material error of law and shall stand.

 

Roxanne Frantzis

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

28 ^th March 2025