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

Factual and Procedural Background

This appeal concerns the Upper Tribunal's ("UT") determination dated 22 July 2015, which allowed the appellant's appeal against the First-tier Tribunal's ("FTT") decision of 3 December 2013. The FTT had dismissed the appellant's appeal against the Respondent's refusal of his asylum claim by a refusal letter dated 19 February 2013.

The appellant, a national of Pakistan, originally entered the United Kingdom as a student on 10 April 2010, overstayed after his leave expired on 16 August 2011, and subsequently claimed asylum on 17 September 2012. The relevant ground for asylum was the risk of an honour killing arising from the appellant's reneging on a verbal engagement agreement to marry a cousin, which was arranged by family members.

The Respondent's refusal letter questioned the definiteness of the engagement and rejected the claim that the appellant faced persecution or risk of an honour killing due to the alleged breach of this engagement. The refusal letter noted a lack of evidence supporting the engagement and the claim of persecution, and found that internal relocation within Pakistan was possible and reasonable.

The appellant appealed to the FTT, relying on expert reports by Professor Christoph Bluth, which emphasized the cultural realities of honour killings in Pakistan, including the significance of verbal engagements and the lack of effective state protection or safe internal relocation options.

The FTT initially dismissed the appeal on 7 May 2013. The appellant was granted permission to appeal to the UT, which allowed the appeal on 8 July 2013 and remitted the case for re-hearing by the FTT. The FTT re-heard the case on 12 November 2013, heard oral evidence from the appellant, and again dismissed the appeal on 3 December 2013. The FTT found that the engagement was informal and not finalized, that there was no risk of dishonouring the family, and that the appellant was not at risk of an honour killing or future harm. It also found that internal relocation was possible.

Permission to appeal from the 3 December 2013 decision was refused by the FTT on 20 December 2013. The appellant renewed his application to the UT, which on 22 July 2015 allowed the appeal and remitted the matter to the FTT for re-hearing by a different judge, identifying a material legal error in the FTT's handling of the concession regarding the engagement and the expert evidence.

Legal Issues Presented

1. Whether the Upper Tribunal erred in law by remitting the case to the First-tier Tribunal instead of substituting the FTT’s decision and allowing the appellant’s appeal outright.
2. Whether the FTT erred in law by going behind the Respondent’s concession that the appellant had agreed to become engaged without giving notice to the parties.
3. The legal effect of the Respondent’s concession and the unchallenged expert evidence on the appellant’s risk of an honour killing and asylum claim.
4. The appropriateness of remitting factual issues regarding risk and internal relocation back to the FTT for determination.

Arguments of the Parties

Appellant's Arguments

• The UT was bound to allow the appeal outright because there were no outstanding legal issues, given the Respondent’s clear concession that the appellant had agreed to become engaged.
• The Respondent did not challenge the expert reports by Professor Bluth, which established that breaking an engagement—even a verbal one—can give rise to a risk of an honour killing.
• The combination of the concession and unchallenged expert evidence meant the UT should have substituted the FTT’s decision and allowed the appeal without a further hearing.
• Authorities cited supported the binding nature of factual concessions and the consequences of not challenging expert evidence.

Respondent's Arguments

• The FTT was entitled to question the concession and expert evidence, as whether a risk arises depends on factual matters, specifically whether the family seeks to pursue the appellant.
• The FTT found no evidence linking alleged attacks on the appellant and his father to the family involved in the engagement, undermining the risk claim.
• The FTT’s findings on internal relocation and risk were factual issues properly remitted for reconsideration.
• The UT’s decision to remit was appropriate and within its discretion, especially given the lack of notice to the parties about going behind the concession.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Carcabuk and Bla -v- Secretary of State for the Home Department [2000] Appeal No. 00TH01426 IAT	Tribunal should accept factual concessions unless exceptional circumstances arise; tribunal may question concessions but must give parties notice.	Cited to explain the nature of concessions and the requirement that tribunals should not go behind concessions without notice.
R(Ganidagli) -v- Immigration Appeal Tribunal [2001] INLR 479	Effect of concessions in immigration appeals.	Supported the appellant’s argument on the binding nature of concessions.
MS (Sri Lanka) -v- Secretary of State for the Home Department [2012] EWCA Civ 1548	Consequences of not challenging factual or expert evidence.	Referred to in support of the appellant’s position on expert evidence.
SI (expert evidence Kurd SM confirmed) Iraq CG [2008] UKAIT 00094	Weight to be accorded to expert evidence in asylum appeals; failure to adduce expert evidence by respondent does not increase value of appellant’s expert evidence; reasons required if tribunal departs from expert opinion.	Quoted extensively by the UT to frame the approach to expert evidence and to justify remitting the case.
Kalidas (agreed facts best practice) [2012] UKUT 00327 (IAC)	Judges do not normally look behind factual concessions except in exceptional circumstances with notice to parties.	Supported the UT’s finding that the FTT erred by going behind the concession without notice.
R -v- Matheson (1958) 1 WLR 474 CA Crim	General principles on evidential challenges.	Referenced in relation to consequences of not challenging evidence.
R -v- Brennan (2015) 1 WLR 2060	General principles on evidential challenges.	Referenced in relation to consequences of not challenging evidence.

Court's Reasoning and Analysis

The court identified the central legal issue as whether the UT erred by remitting the case rather than substituting the FTT’s decision. The court acknowledged the Respondent’s clear concession in the refusal letter that the appellant had agreed to become engaged and the unchallenged expert evidence that breaking even a verbal engagement can give rise to a risk of honour killing.

However, the court emphasised that the existence of a risk depends on factual circumstances, specifically whether the family whose honour is claimed to be violated would take action against the appellant. This is a matter of fact, not expert opinion.

The court noted that the FTT found no evidence linking the alleged attacks on the appellant and his father to the family involved in the engagement, and found that internal relocation within Pakistan was possible. These factual findings were potentially influenced by the FTT’s error in going behind the concession without notifying parties.

The court held that the FTT erred in law by going behind the concession without notice, depriving the appellant of the opportunity to address that issue. This procedural irregularity justified remission to the FTT for a fresh hearing by a different judge.

The court further explained that the UT was not bound to accept the concession or the expert evidence as determinative of risk, as the risk depends on factual determinations. The court also clarified that failure by the Respondent to challenge expert evidence does not automatically increase its weight beyond its proper merit.

Finally, the court observed that the parties had agreed that remission was the best course, and that the decision to remit was a discretionary one that was not irrational.

Holding and Implications

The court DISMISSED the appellant’s appeal against the UT’s decision to remit the matter to the FTT for re-hearing by a different judge.

The direct effect is that the appellant’s asylum claim will be reconsidered by the FTT with proper notice regarding the concession and with opportunity to address all relevant issues. No new legal precedent was established by this decision. The case underscores the importance of procedural fairness when tribunals consider concessions and expert evidence, and confirms the discretionary nature of remission in appeals.