WAS (Pakistan) v Secretary of State for the Home Department

In a protection appeal, the tribunal must apply the real-risk standard without demanding cogent direct evidence of a foreign state's covert monitoring where such evidence is unlikely to be available. It must assess the intrinsic likelihood of material evidence at the lower standard and must not allow justified adverse credibility findings or exaggeration to determine every aspect of the claim. Where earlier findings are the starting point, a later tribunal must explain any material departure from them. It must also determine whether an appellant's political affiliation is genuine enough to engage the principle that a genuine political supporter cannot be required to conceal that affiliation to avoid persecution.

The appellant, a Pakistani national, challenged the refusal of his fresh protection claim. He relied on his actual or perceived support for MQM-London and its leader, AH, and on political activities undertaken in the United Kingdom.

The First-tier Tribunal had made findings about his MQM involvement and social-media activity. A later Upper Tribunal decision set aside an intervening First-tier Tribunal determination for error of law, preserved specified findings, and retained the remaking. In determination 4, the Upper Tribunal accepted that those identified as MQM-L supporters could face persecution in Pakistan, but dismissed the appeal. It found that the appellant had exaggerated his role, was not genuinely committed to MQM-L, and was not reasonably likely to have come to the authorities’ attention.

The central issues were whether the Upper Tribunal had applied an unduly demanding evidential approach to detection by the Pakistani authorities, and whether it had properly assessed the appellant’s genuine political affiliation in light of earlier findings and HJ (Iran).

1. Appeal allowed on both grounds. Lady Justice Elisabeth Laing, with whom Phillips and Baker LJJ agreed, held that the Upper Tribunal’s reasoning was unsafe.

2. The governing standard was whether there was a serious or real risk of persecution. The Upper Tribunal had accepted significant evidence that the Pakistani authorities sought to eliminate AH and his power base, monitored MQM-L activity in London, and persecuted persons identified as supporters. It nevertheless erred by requiring an asylum claimant to establish, by cogent direct evidence, the level and mechanics of covert monitoring. Such evidence was inherently unlikely to be available. The common-sense observation in YB (Eritrea) [2008] EWCA Civ 360 supported an assessment based on limited direct evidence and reasonable inference.

3. The Upper Tribunal’s findings that the appellant exaggerated his role were open to it. But it treated the alternatives as either insignificant support or the exaggerated role he claimed. That obscured the material third possibility that he supported, or could be perceived to support, MQM-L sufficiently to attract attention and risk. Credibility findings are not a substitute for assessing the intrinsic likelihood of significant evidence at the lower standard. An adverse finding on some matters cannot automatically be generalised to all of the evidence.

4. The Upper Tribunal also failed to explain its departure from the earlier findings which, under Devaseelan [2002] UKIAT 00702, formed the starting point. Those findings, and Facebook evidence from before the asylum claim, materially bore on whether the appellant’s affiliation was genuine. Its conclusion that his activity was merely self-serving therefore lacked a safe foundation.

5. A genuine supporter of MQM-L or AH could not be required to conceal that support on return in order to avoid persecution, applying HJ (Iran) [2010] UKSC 31. The case required fresh specialist fact-finding. The court was inclined to remit the appeal, but reserved the forum and precise remedy for further written submissions.

• Court of Appeal (Civil Division) — allowed the appeal on both permitted grounds and indicated that the protection appeal should be remitted, subject to further submissions on the appropriate forum: [2023] EWCA Civ 894.
• Upper Tribunal (Immigration and Asylum Chamber), determination 4 — remade the appeal and dismissed the protection claim, finding no real risk on return.
• Upper Tribunal (Immigration and Asylum Chamber), determination 3 — found a material error of law in the second First-tier Tribunal determination, set it aside, preserved specified findings, and retained the remaking.
• First-tier Tribunal (Immigration and Asylum Chamber), determination 2 — dismissed the appeal against the refusal of the fresh claim.
• First-tier Tribunal (Immigration and Asylum Chamber), determination 1 — dismissed the original protection appeal; a later Upper Tribunal appeal was also dismissed.