Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01009/2015
AA/01011/2015
AA/01015/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision and Reasons Promulgated
On: 25 February 2016
On: 15 March 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL CHANA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellants
and

MRS T N
MR M K S
MR M S
(no anonymity directions made)
Respondent

Representation:
For the appellant: Ms H Naz, Solicitor
For the respondent: Ms C Johnstone, Senior Presenting Officer

DECISION AND REASONS
1. The appellant in this appeal is the Secretary of State for the Home Department. The respondents are nationals of Pakistan. However, for ease of reference, I shall continue to refer to the parties as they were referred to before the First-tier Tribunal. The first appellant is the main appellant and her dependent appellant’s appeals stand or fall with that of the main appellant. I shall therefore continue to refer to the first appellant as “the appellant” and consider her appeal.
2. The Secretary of State appealed to the Upper Tribunal against the decision of First-tier Judge Jerromes dated 24 March 2015 allowing their appeals.
3. Permission to appeal was granted by Designated First-tier Tribunal Judge Moray stating that it was arguable that the Judge has not taken proper account of the discrepancies in the first appellant’s evidence. The Judge also noted that at paragraph 51 of the decision, the Judge states that the discrepancies are minor but it is not clear which version of events he accepts. Furthermore, the judge did not explain at paragraph 56 for why he accepts that Qasim has any power in Pakistan.
The first-tier Tribunal’s findings
4. The First-tier Tribunal Judge made the following findings which I summarise. The Judge set out the appellant’s claim which was the following. The appellant is a national of Pakistan born on 10 November 1980 in Lahore. She has one sister and four brothers and she is the youngest child. Her father died in 1996 and her family has been described as wealthy. On the death of a father her eldest brother, Qasim (hereinafter “her brother”) became the head of the family and supported his two brothers and started to look after the land. Her other brother is in Hong Kong and her sister is married. After her father’s death, her brother tried to persuade her to terminate her studies because he did not want to spend money but her mother persuaded him otherwise and the appellant continued with her studies. She completed her first grade 2002 at which point her mother wanted her to marry and she received a proposal but her brother refused and insisted she continue with their studies which the appellant was happy to do.
5. The appellant started to work at an advertising company in Lahore as an assistant manager. She met her current husband (hereinafter “her husband”) who is subsequently married, in 2008 at a neighbour’s wedding in Pakistan which she attended with her mother. Her husband was also working at the same company as her, as a graphic designer. They started an affair in secret and he would send the second appellant messages on her mobile phone which her family did not know she had. Her husband was a member of a middle-class family and the appellant knew that her brother would refuse his proposal because of his background and because he came from a different clan. A proposal from her husband followed which was refused by her brother. Her brother then declared that he would find a husband for the appellant. A few days later he announced that he has a suitable husband for her which was one of his servants. Her mother objected saying that he was illiterate, backward and a servant. Her brother chose the servant because the servant would do whatever he was ordered to by her brother. He instructed the servant that he should not make a claim for the appellant’s share of her father’s estate.
6. The appellant went to her husband’s home which was three or four streets away but his parents told her not to come to their home because they would not be able to protect her. The appellant was verbally abused and beaten by her brother. She received some visible injuries but she was not taken to hospitals and she did not report the incident to the police. After that she was not allowed to return to work and her brother started watching her.
7. She continued to stay in touch with her husband through her mobile telephone. After a few days, a wedding was arranged with the servant which was s a total secret. She was beaten until she became almost unconscious and her brothers obtained her signature. After the wedding, she stayed at home and the marriage was never consummated because she made excuses. She was not allowed out unaccompanied. She remained in contact with her husband who advised her to ask her brother for permission to study abroad. A few days after the wedding, she asked her brother who initially disagreed and then relented and allowed to go on condition that the servant went with her, to so he could keep an eye on her.
8. Her husband put a in touch with the agent who helped her apply for a United Kingdom student lowercase that she did not see the servant between the wedding and applying for a visa but he would come to the house now and then because he was working for the family. She was granted lowercase that on 17 February 2012 and she left Pakistan with the servant on 23 February 2012 on a direct flight to the United Kingdom. Before she left Pakistan, her husband prepared divorce papers for her and her mother took delivery of the divorce papers in private. Her mother knew she wanted to marry her husband and kept this private from her brothers.
9. Whilst on the plane she asked the servant to put a stump print on the divorce paper. She carried a stamp with her on the plane. At first, he refused but agreed when she said she would report him to the police in the United Kingdom. She however lost the divorce papers when she was pregnant and moving from London to Manchester. The divorce was not sent anywhere to be legally registered either in the United Kingdom in Pakistan. She left the servant at the airport and went to Luton and has had no contact with him since. She was in fear of returning to Pakistan at this point because she had secured a divorce from the servant and her brother would have killed her. However, she did not claim asylum at that point because she did not know that she could.
10. The appellant started her studies at Bedford Shire studying international business management. She completed one semester and needed to pay the next semesters fees. She telephoned her brother who refused to pay because she had left the servant. He swore at her and threatened her and told her she should live with the servant. Sometime after this the appellant spoke to her mother who told her that her brother had said that if the appellant returns to Pakistan he will kill her. Her husband was threatened sometime in 2012 by her brother who had told him that if he marries the appellant he would be killed. No one in her husband’s family have been harmed.
11. The appellant husband then applied for a student via and entered the United Kingdom on 21 August 2012 and they started living together. Her husband was in fear of his life in Pakistan because he was being threatened by her brother. He commenced his studies in the United Kingdom but did not complete them. The appellant became pregnant and they married on 12 May 2013. She informed her sister and mother that she had married and that she was pregnant and there were happy for her but told us that she was in a safe country and there is no need to come back.
12. Her husband has tried to contact his family in Pakistan a few times but the told him he has put their lives in danger and they do not want to be contacted. The appellant’s brothers visited them when they found out he had come to the United Kingdom and threatened them but they told them they have nothing to do with their son.
13. The appellant gave birth to their son on 29 November 2013. She told her mother that she wanted to return to Pakistan. Her mother spoke to her brother and the appellant received a telephone call from him threatening to kill her if she ever returned. He told her that her son was the legitimate and she has put their name to shame and tainted their own. The appellant and her husband became scared and sought advice and claimed asylum on 20 December 2013. She cannot relocate anywhere within Pakistan because her brother can easily trace her and her family because of his power and wealth. Her brother is a very influential person and has strong connections with officials in Pakistan including the police and a member of the National Assembly who is his close friend. The authorities would find her through her national identity card using the NADRA system.
14. The Judge found that the appellant has proven to the low standard of proof the following. The appellant and her husband were threatened by her brother and the appellant was forced to marry servant and she managed to secure a divorce from him.
15. The discrepancies in the account regarding the occasion when the appellant went to her husband’s house or minor and do not affect the appellant’s credibility. Given her brother’s alleged connections it is not surprising that she did not report the matter to the police. Her injuries were sustained some months before she travelled to the United Kingdom and it is therefore not significant that she has not consulted a doctor in the United Kingdom. It has been considered that the appellant was not forced to live with the servant after the marriage and did not consummate the marriage.
16. It is also been taken into account that there are discrepancies in her account as to whether and how often she met the servant after the wedding but these inconsistencies are minor and do not undermine her general credibility. Although it is troubling that the divorce document has not been provided but to the lower standard of proof, her explanation that she has lost it has been accepted. The appellant and her husband are in fear of honour killing on return to Pakistan. On the lower standard of proof, it is accepted that the appellant did not know she could claim asylum when she first arrived in the United Kingdom. Her explanation that she waited until December 2013 because she was waiting for her family to calm down is accepted. On the lower standard of proof, it is accepted that when the appellant spoke to her brother about tuition fees. He had threatened to kill her sometime in 2012 and in November 2013.
17. Taking all the evidence in the round there is a real risk that the appellant will be killed by her brother in and honour killing and therefore issues of internal protection and internal relocation have been considered. In respect of internal protection her family cannot offer any protection she has dishonoured them and her husband’s family cannot provide them with protection. Therefore, she will not have sufficient protection from the authorities in Pakistan. It has been considered that the appellant and her husband are healthy and well educated and understand the language and culture of Pakistan and have the skills to gain employment. However, it is accepted that they will not be able to relocate to any other area of Pakistan as the appellant’s brother can trace her and her family because of his power and wealth and the NADRA system.
18. The Judge allowed the appellant’s appeal under the Refugee Convention and her dependents appeals were allowed under humanitarian protection grounds.
The grounds of appeal
19. The respondent in the grounds of appeal state the following which I summarise. In Ground one it is stated that the judge failed to resolve conflicts in the evidence. Several discrepancies in the evidence were relied upon in the respondent’s refusal letter and the Judge considered them to be minor discrepancies but has failed to resolve the conflicts in the evidence and therefore this is a material error of law.
20. Ground to states that the judge failed to provide adequate reasons. The Judge failed to provide adequate reasons for why it was accepted that the appellant’s brother has any influence or power in Pakistan.
Decision as to whether there is an error of law.
21. I have given anxious scrutiny to the determination of Immigration Judge Jerromes and have taken into account the respondent’s grounds of appeal.
22. The main complaint about the decision is that the Judge did not adequately consider all the evidence and make findings on alternative scenarios which were apparent in evidence and did not resolve the conflicts.
23. Much of the decision is about the appellant’s claim which is set out in detail. The Judge then went on to consider background evidence on honour killings in Pakistan also in detail. There could have been no dispute that honour killings happen in Pakistan and if the appellant demonstrated that she would be at risk of an honour killing on her return to Pakistan, she would have succeeded in her appeal. The question for the Judge to have addressed was whether the appellant would be the victim of an honour killing and whether her evidence was credible. Credibility was the main issue in this appeal.
24. The Judge’s findings started paragraph 50, which are in brief point form. In these findings, the judge accepts the appellant’s evidence in its entirety without adequately dealing with the inconsistencies and implausibility in the evidence. No reasons were given as to why the inconsistencies were, as she says, “minor” and why they did not undermine the appellant’s credibility. The Judge’s assessment of the evidence and reasoning is wholly inadequate.
25. The Judge also said that the appellant’s brother has such power and influence in Pakistan such as that the appellant cannot relocate anywhere within that country. No reasons were given for why the Judge believed this evidence and found that the appellant could not relocate anywhere within Pakistan.
26. I set aside the determination as being materially flawed. Given the passage of time since the last appeal hearing, I direct that the appeal be remitted to the First-tier Tribunal to be heard de novo before any First-tier Tribunal Judge other than Judge Jerromes.
27. The appeal is remitted to the First-tier Tribunal for findings of fact to be made.

DECISION
Appeal remitted to the First-tier Tribunal

Signed by,

Deputy Judge of the Upper Tribunal

………………………………………
Mrs S Chana Dated this 14th day of March 2017