Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00508/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
On 31 August 2016
Decision and Reasons Promulgated On 13 September 2016

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
SONAIMA KHADIM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Brown for Adam Solicitors
For the Respondent: Mr G Harrison Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Chambers promulgated on 6 November 2015 which dismissed the Appellant's appeal against the decision of the Respondent to remove the Appellant from the UK following the decision to refuse the Appellant's claim for asylum
Background
4. The Appellant was born on 9 May 1983 and is a national of Pakistan. She came to the UK on 22 March 2013 on a visit visa.
5. On 5 September 2013 she applied for leave to remain on the basis of her human rights. Her application was refused. She appealed that decision and her appeal came before First tier Tribunal Judge Herwald on 13 May 2014. The Judge heard evidence from the Appellant and her aunt in relation to her claim that she was at risk on return from her family of an 'honour killing' because she had given birth to a daughter outside of marriage while in the UK. He dismissed her appeal in a decision dated 29 May 2014 both under the Rules but also found that she did not have well-founded fear of persecution for a reason recognised by the Geneva Convention. He did not find that the Appellant or her aunt were credible witnesses as they had given contradictory accounts in respect of a number of key aspects of her claim which he noted had been conceded by counsel who represented the Appellant. He rejected at paragraph 21(o) the claim that there had been threats to the Appellants life or well being. He found that she was a resourceful woman who had previously run a business in Pakistan and had her own bank account and savings rejecting her claim that her account had been closed down. He found as a fact that the Appellant did not face a risk from her family on return but considered that in the alternative on the basis of his findings that she was a financially sound professional woman she could relocate and that would not be unduly harsh.
6. An application was made to appeal the decision on the basis only that the Judge had failed to adequately address the best interests of the children. The application for permission to appeal was refused on 20 June 2014.
7. On 15 July 2014 the Appellant claimed asylum. On 23 December 2014 a decision was made to refuse that application and remove the Appellant from the UK.
The Judge's Decision
8. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Chambers ("the Judge") dismissed the appeal against the Respondent's decision. The Judge found:
(a) The starting point of his decision was the guidance given in Devaseelan 2002 UKIAT 00702
(b) He summarized that the Appellants fear had been that on her return she would be the subject of an honour killing which was the same factual matrix as that which was placed before Judge Herwald on 20 June 2014.
(c) He found that the Judges conclusion after hearing evidence from the Appellant and her aunt was that he did not find them to be credible witnesses and made a finding that she was not at risk from her family on return. He did consider the alternative scenario and concluded that it was not unduly harsh for her to relocate.
(d) He noted that permission to appeal the decision was refused and the application was not renewed.
(e) He dismissed the appeal on all grounds.
9. Grounds of appeal were lodged which argued the Judge had failed to consider the fact that the Appellant would be persecuted by her immediate family and by society in general as having a child outside marriage was a serious deviation from the cultural norm.
10. On 6 January 2016 an Upper Tribunal Judge gave permission to appeal.
11. On 27 January 2016 a Rule 24 Notice was filed arguing that the Judge had directed himself appropriately given that the same issues were raised before him as before Judge Herwald.
12. At the hearing I heard submissions from Mr Brown on behalf of the Appellant that:
(a) The Judge failed to refer to the Country Guidance case at the time of his decision which was KA and Others (domestic violence - risk on return) Pakistan CG [2010] UKUT 216 (IAC)
(b) Judge Chambers essentially adopted the findings of Judge Herwald and failed to take account of the more recent decision in SM (lone women - ostracism) Pakistan [2016] UKUT 00067
(c) The grant of permission identified that there was no assessment of the risk to a mother and child where the child was born out of wedlock by reference to SM
(d) The risk to a single woman with an illegitimate child was not looked at in the CG cases and while there was a reference in the headnotes 5 and 6 of SM it was not clear if they were referring to a child out of wedlock.
13. On behalf of the Respondent Mr Harrison submitted that:
(a) He relied on the Rule 24 Notice.
14. In reply Mr Brown on behalf of the Appellant submitted:
(a) That as an assessment of the background material in relation to the position of woman in Pakistan and the risk to them of gender-based persecution paragraph 14 was not enough.
(b) He relied on the guidance set out at paragraph 73 of SM.
Finding on Material Error
15. Having heard those submissions, I reached the conclusion that the Tribunal made no material errors of law.
16. It is argued in the extremely brief grounds that the Judge failed to assess the risk to the Appellant not simply on the basis of risk from her family but from society in general as the mother of a child born out of wedlock.
17. I note that the Judge identified in paragraph 15 of his decision that the starting point in his determination was the guidance given in Devaseelan noting that 'the factual issues were the same as those raised again in the recent application and in this appeal.'
18. Judge Herwald heard evidence from the Appellant and her aunt in relation to her claim that she had been made the subject of threats by her family and in a detailed and well reasoned analysis at paragraphs 21 (a)-(p) set out why he came to the conclusion that the Appellant and her aunt had not given truthful evidence about her risk from her family and concluded at 21 (q) ' I do not find that this woman faces any fear from her family on return ..' .
19. His primary finding therefore was that the Appellant was not at risk of an honour crime from her family and I am satisfied that there was no reason or argument placed before the Judge to go behind that principal conclusion in relation to the risk from her family.
20. While I note that both Judge Herwald and Judge Chambers did not refer to any country guidance cases I remind myself that In HH (Afghanistan) v SSHD [2014] EWCA Civ 569, it was held that where the Upper Tribunal had considered the risks that an asylum seeker said he would face on return to Afghanistan, its failure to refer specifically to the country guidance case enumerating those risks was not an error, or a material error, of law. I am satisfied that Judge Herwald had considered all of the factors that were relevant to the risk on return whether he specifically referred to KA or not. While it suggested that Judge Chambers did not refer to SM the relevant facts which were summarised in the headnotes (iv)-(vi) as relevant to the issue of the risk for the Appellant as a lone female with a child born out of wedlock.
"iv. It will not normally be unduly harsh for educated, better off, or older women to seek internal relocation to a city. It helps if a woman has qualifications enabling her to get well-paid employment and pay for accommodation and childcare if required.
v. Where a single woman, with or without children, is ostracised by family members and other sources of possible social support because she is in an irregular situation, internal relocation will be more difficult and whether it is unduly harsh will be a question of fact in each case. (my bold)
vi. A single woman or female head of household who has no male protector or social network may be able to use the state domestic violence shelters for a short time, but the focus of such shelters is on reconciling people with their family networks, and places are in short supply and time limited. Privately run shelters may be more flexible, providing longer term support while the woman regularises her social situation, but again, places are limited.'
21. It cannot be argued that Judge Herwald ignored the fact that the Appellant would be returning to Pakistan as the mother of a child born out of wedlock as he specifically referred to that fact in paragraph 21 (o) of his decision. He concluded however as I indicated above that the Appellant would not be at risk on return to her family. He considered the alternative position and therefore I am satisfied took into account the risk from the wider community but recognised and indeed anticipated what would be said in SM that much depended on the social and particularly the financial circumstances of the Appellant. While not minimizing the challenges to her returning as a woman with a child he accepted was born out of wedlock he noted that she was a well educated woman who had a majority share in a successful business (paragraphs 16,21(o)-(q)) and such it would not be unreasonably harsh to expect her to relocate if she chose to.
22. I do not accept Mr Browns argument that SM does not deal with the position of single women who are mothers of illegitimate children from society in general as this is specifically referred to in paragraphs 67,79-80,82 and 98 and I am satisfied that there is nothing I the decision to suggest that a woman in the Appellants position could not return. I note that the Tribunal had before them a report from Dr Roger Ballard, a Consultant Anthropologist and Director of the Centre for Applied South Asian Studies. His report was entitled "Risk on return to Pakistan in the case of a single mother and her illegitimate children.'
23. In relation to that report their finding was at paragraphs 67 and 69:
67. In general, we accept Dr Ballard's written evidence that a female head of household in Pakistan with no husband or family backing, would be treated as kinless and a demimondaine, because of her inability to explain her circumstances truthfully to new friends and neighbours. His opinion was that such a person would have little difficulty in finding a room in a five star hotel but that without a respectable male guardian, she would be unable to find cheaper accommodation, and thus would be at risk of accepting an accommodation offer which she realised too late came with sexual strings attached. That observation was not sourced, and is not differentiated by age, social position, education or financial resources, as is the case in other generic reports before us. We treat that part of Dr Ballard's evidence with a degree of caution. We accept that accommodation is more readily available to women who are in a strong financial or social position, but we do not consider that the other country evidence, particularly the evidence of the Canadian IRB or the US State Department Report supports Dr Ballard's assertion that nothing short of a 5star hotel will do. ?
69. In so far as the risk in a woman's home area is concerned, we also accept his assertion that where her family will not accept a woman's return to them, she runs a higher risk of ostracism on the basis that her sin would be perceived as having been exceptionally serious; however, we treat that assertion with a degree of caution in relation to women who are able to make their way in larger cities because they are older, or educated, in a good financial position, or have a male guardian."
24. I note that SM is not a CG case but I am satisfied that there is nothing in that case that would have made a material outcome to the decision made by Judge Chambers as all of the factors that were accepted as being of relevance to the issue of relocation and the risk from the wider community as set out above had been considered by Judge Herwald: his starting point was that she could return without risk to her family but is she chose to she would because of her business acumen and savings be in a position to relocate to a larger city even as the lone mother of a child born out of wedlock.
25. I was therefore satisfied that the Judge's determination while brief when read as a whole set out findings that were sustainable and based on cogent reasoning.
CONCLUSION
26. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
27. The appeal is dismissed.

Signed Date 12.9.2016
Deputy Upper Tribunal Judge Birrell