MQM-linked man’s case sheds light on burden of proof in asylum cases

LONDON: A recent Court of Appeal judgement considering the case of a Pakistani man linked to Muttahida Qaumi Movement-London (MQM-L) said asylum seekers don’t need “direct evidence” that they are being surveilled.

The case centered on the application of an individual, who claimed he faced risk in Pakistan due to his involvement with the UK-based faction of Muttahida Qaumi Movement. The man has simply been identified by his initials, WAS.

The Upper Tribunal earlier acknowledged that if his activities came to the attention of the Pakistani authorities, he would be at risk upon return but argued that there was insufficient evidence to determine the extent of monitoring of MQM-L’s activities.

This made the applicant’s claim of potential identification speculative, and his appeal was consequently dismissed.

Court rules applicants do not have to give direct evidence to show they are being watched

Asylum applications go through a screening process at the Home Office, and, if rejected, may be appealed at the First-tier Tribunal. If it is refused again, the applicant may appeal at the Upper Tribunal.

An applicant has a last oppor-tunity of appeal at the Court of Appeal.

WAS entered the UK on June 19, 2012 as Tier 1 (general student) migrant and in December 2015 made an application for further leave to remain as the spouse of a British citizen.

The Secretary of State refused that application in February 2016. WAS then made a protection claim in October 2017 “on the basis of his actual or perceived political opinion”.

He said he was a member of MQM.

The Court of Appeal considered the evidence presented before the Upper Tribunal.

The Upper Tribunal had also noted the following, “The authorities are now better at monitoring social media.”

It said that a Pakistani state organisation can identify foreign posts on social media, and hand over an article by a journalist to investigation agencies.

If a pro-Altaf Hussain tweet is posted, and its author cannot be identified, the state would ask an informer in MQM-London, it said.

It also noted that the risk to a member of MQM-L would depend on whether he had come to the attention of intelligence agencies.

It observed that a person was from Hyderabad and it was plausible that he made contact with MQM-L in London. Even though 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 some intelligence agency.

It noted that if they had not done so already, someone in MQM-L was likely to pass on this information to intelligence agencies.

It was likely that the authorities would be waiting for that person at the airport. That there was no arrest warrant would make no difference.

The judgment noted that while there was no evidence that the authorities in Pakistan had a list of MQM-London members, it was reasonably likely that the authorities intended to monitor MQM-L activity in London.

The Court of Appeal said that the Upper Tribunal was not cautious enough about the knowledge of the Pakistani authorities and the resultant risk.

“Given A’s [the asylum applicant’s] characteristics, and the findings about the high level of risk to MQM-L supporters, the UT should have allowed the appeal,” the judgement noted.

It also noted, “It is very improbable that there would be any direct evidence of covert activity by the Pakistani authorities, whether it consisted of monitoring demonstrations, meetings and other acti­vities, monitoring social media, or the use of spies or informers.”

“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 asylum applicant],” Lady Justice Elisabeth Laing wrote, thereby allowing the appeal.

Published in Dawn, August 1st, 2023

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