Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01398/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower Birmingham
Decision & Reasons Promulgated
On 14th February 2017
On 23rd February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

the Secretary of State for the home department
Appellant

and

r s
(ANONYMITY DIRECTION made)
Respondent

Representation:

For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Mr I Ali of Counsel instructed by A S R Legal Solicitors

DECISION AND REASONS

Introduction and Background
1. The Secretary of State appealed against a decision of Judge Anthony of the First-tier Tribunal (the FtT) promulgated on 27th April 2015.
2. The Respondent before the Upper Tribunal was the Appellant before the FtT and I will refer to her as the Claimant.
3. The Claimant is a female citizen of Pakistan born in 1979. She has two dependent daughters born 1st December 2000 and 25th June 2003 respectively. The Claimant and her daughters arrived in the UK in July 2012 as visitors. They remained when their visas expired and in March 2013 the Claimant made an asylum and human rights claim.
4. The claim was refused on 9th January 2015 and the Claimant appealed to the FtT pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
5. The Claimant's asylum claim was made on the basis that she feared her violent and abusive husband if returned to Pakistan. The FtT noted that the Secretary of State accepted that the Claimant had been forced to marry her husband, and that he had subjected her to domestic and sexual abuse. The Secretary of State had also accepted that her husband left home in 2012 telling the Claimant that he was going to travel to the UK. It was accepted that when her husband had left, the Claimant made arrangements to obtain visas for herself and her daughters, and travelled to the UK to escape her husband. The Claimant had claimed that her husband was a member of Jumat-ut-Dawa but this was not accepted.
6. The FtT found that the Claimant had not had any contact with her husband or members of his family since 2012 and there were no ongoing threats to her from either her husband or his family because her husband was unaware of her whereabouts.
7. The FtT found that the Claimant, if returned to her home area, would face renewed hostility or continuing interest from her former husband, that she would be at risk from her husband of further domestic violence, and would be at risk of honour killing. The FtT found that it would be unduly harsh for the Claimant to relocate within Pakistan.
8. The FtT allowed the appeal and the Secretary of State was granted permission to appeal to the Upper Tribunal.
Error of Law
9. On 20th September 2016 I heard submissions from both parties in relation to error of law and concluded that the FtT decision must be set aside, with some findings preserved. Full details of the application for permission, the grant of permission, the submissions made by both parties, and my conclusions are contained in my decision promulgated on 29th September 2016. I set out below paragraphs 27-35 of my error of law decision;
27. The FtT made findings without giving adequate reasons and did not follow the guidance in Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC) the head note of which I set out below;
It is generally unnecessary and unhelpful for First-tier Tribunal judgments to rehearse every detail or issue raised in a case. This leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. It is, however, necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost.
28. At paragraph 28 the FtT finds that the Claimant has had no contact with her husband or members of his family since 2012 and that there are no ongoing threats to her. This is because her husband does not know where she is. The Claimant's case was that her husband left her in Pakistan to travel to the UK, and she then made an application for a visit visa and travelled to the UK with her two daughters.
29. At paragraph 29 the FtT concludes that if returned to her home area the Claimant would be subjected to renewed hostility or continuing interest from her husband, but given that there had been no contact since 2012, this is unreasoned. The FtT has not adequately analysed the evidence and made findings with reasons explaining those findings.
30. At paragraph 30, having found that the Claimant would be at risk from her husband of further domestic violence, the FtT finds that she would be at risk of honour killing. This conclusion is unreasoned. Reading the determination as a whole, I do not find any cogent reasons given for that conclusion. Mrs Bachu has pointed to an extract from the Claimant's witness statement, and replies to questions 197-205 of the interview summary. The FtT has not however analysed that evidence. It is relevant that during those questions, the Claimant accepted that nobody had told her that her brothers had sided with her husband.
31. I accept the submissions made by Mr Mills that in paragraphs 31 and 34, the FtT is reversing the burden of proof, in stating that no evidence was given as to whether the Claimant's family would be willing to support her. The burden of proof is on the Claimant to a reasonable degree of likelihood. It is for the Claimant to prove that her family would not support her, and the FtT accepts that no evidence was given on this point.
32. I find that the conclusions in paragraph 44 in relation to finding that the Claimant would face very significant obstacles if returned to Pakistan, are tainted by the findings made by the FtT that she would be at risk of persecution, ill-treatment, and honour killing, which findings were made without reasons being given.
33. The decision needs to be re-made. Having considered the Senior President's Practice Statements and in particular paragraph 7.3 which indicates that re-making a decision in the Upper Tribunal rather than remitting to the FtT will constitute the normal approach to determining appeals where an error of law is found, even if some further fact-finding is necessary, I have decided that this decision should be re-made by the Upper Tribunal.
34. I find that it is appropriate to hear further evidence from or on behalf of the Claimant. I find it appropriate to preserve some findings and they are as follows;
The Claimant was forced to marry her husband against her wishes.
The Claimant was subjected by her husband to physical and sexual abuse.
It is accepted that the husband left the family home in Pakistan and thereafter the Claimant obtained a visa to visit the United Kingdom.
It is not accepted that the Claimant's husband was a member of Jumat-ut-Dawa.
35. The issues to be decided by the Upper Tribunal at the next hearing are whether the Claimant is entitled to asylum or humanitarian protection, and whether her removal from the United Kingdom would breach Articles 3 and/or 8 of the 1950 Convention.
10. The hearing on 20th September 2016 was adjourned so that the decision could be re-made by the Upper Tribunal after further evidence was given.
Re-Making the Decision
The Law
11. The Claimant is entitled to asylum if she is outside her country of nationality and is recognised as a refugee as defined in regulation 2 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 as a person who falls within Article 1A of the 1951 Geneva Convention. The onus is on her to prove that she has a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group or political opinion), and is unable or, owing to such fear, unwilling to avail herself of the protection of the country of her nationality.
12. The Claimant would be eligible for humanitarian protection under paragraph 339C of the Immigration Rules if she does not qualify as a refugee, and establishes substantial grounds for believing that if she was removed from the United Kingdom, she would face a real risk of suffering serious harm, and is unable or, owing to such risk, unwilling to avail herself of the protection of the country of return.
13. The Claimant claims that to remove her from the United Kingdom would breach Articles 2 and 3 of the 1950 European Convention on Human Rights. The Claimant must therefore establish that there are substantial grounds for believing that returning her to Pakistan would create a real risk that she would be killed or subjected to torture or inhuman or degrading treatment or punishment.
14. The Claimant also relies upon Article 8 and she must therefore satisfy Appendix FM in relation to family life, or paragraph 276ADE(1) in relation to private life. If the Appellant contends that her appeal should be allowed pursuant to Article 8 outside the Immigration Rules, she must prove that she has established a family or private life that would engage Article 8, and the Tribunal must then decide whether the decision is in accordance with the law and necessary for one of the reasons given in Article 8(2), and whether the decision is in all the circumstances proportionate.
15. In relation to risk on return, the burden of proof is on the Claimant and can be described as a reasonable degree of likelihood which is a lower standard than the normal civil standard of the balance of probabilities. The Tribunal must consider the circumstances as at the date of hearing.
The Claimant's Claim
16. In summary the Claimant claims that she lived with her parents and siblings in the area of Mirpur. She was forced by her brothers and father to marry.
17. During their marriage her husband beat her and raped her. She was told by her family and her husband's parents that she must put up with this. Her husband's behaviour become worse after she gave birth to two daughters, as he wanted sons.
18. In 2012 the Claimant's husband told her that he was going away for a while to the UK. When he left the Claimant made arrangements to obtain visas for herself and her daughters and travelled to the UK in order to escape from her husband.
19. Since arriving in the UK the Claimant has had no contact with her husband nor her family. Her parents have passed away. She has four brothers and four sisters who live in the Mirpur area of Pakistan. She states that her brothers have not supported her and she believes that they are ashamed because she has left her husband. She fears that if returned to Pakistan she and her daughters would be killed or seriously harmed by her husband because she escaped from him. In the past as well as physically abusing her, her husband had physically abused his daughters and took them out of school.
20. It is therefore the Claimant's case that she would have no family support if she returned to Pakistan, and the police would be unable to protect her, and there would be no reasonable internal relocation option open to her.
The Refusal
21. The Respondent's reasons for refusing the application are contained in a decision dated 9th January 2015. In summary the Respondent accepted that the Claimant was forced into a marriage, that she had been physically and sexually abused, and that her husband had left the family home in 2012. Although he had told the Claimant he was travelling to the UK, the Respondent's records indicate that he did not apply for and was not granted a visa to the UK in 2012.
22. The application was refused because the Respondent believed that there was a sufficiency of protection from the authorities available for the Claimant in Pakistan, and she had a reasonable option of internal relocation.
The Upper Tribunal Hearing
Preliminary Issues
23. The Claimant attended the hearing. There were no difficulties in communication between the Claimant and interpreter in Urdu.
24. I ascertained that the Tribunal had received all documentation upon which the parties intended to rely, and that each party had served the other with any documentation upon which reliance was to be placed. The Tribunal had received the Respondent's bundle with Annexes A-D, the Appellant's bundle comprising 171 pages, and the Appellant's supplementary bundle comprising pages 172-322. The Tribunal had also received the Appellant's skeleton argument dated 5th December 2016, and Mr Mills submitted the Home Office Guidance on Women fearing Gender based Harm/Violence in Pakistan dated February 2016 and SM and MH (lone women - ostracism) Pakistan CG [2016] UKUT 00067 (IAC).
25. Mr Ali confirmed that asylum was claimed based upon the Claimant's membership of a particular social group, and in the alternative the Claimant claimed humanitarian protection pursuant to paragraph 339C. The Claimant wished to rely upon Articles 2, 3 and 8 of the 1950 Convention. With reference to Article 8 there was no reliance placed upon Appendix FM in relation to family life, but reliance was placed upon paragraph 276ADE(1)(vi) in relation to private life and the Claimant relied upon Article 8 outside the Immigration Rules.
Oral Evidence
26. The Claimant gave oral evidence and adopted her witness statement dated 6th February 2017 which sets out her claim. In summary the Claimant's evidence as contained in this statement confirms there has been no contact between herself and her husband since 2012, and neither her husband nor her family know that she is in the UK.
27. The Claimant's family would not support her because she has dishonoured the family by leaving her husband. She feared she will be killed if returned to Pakistan and referred to the very high rate of honour killings in that country. The Claimant also referred to new legislation in Pakistan, the Punjab Information of Temporary Residence Act 2015, whereby landlords/tenants need to contact their local police station. The Claimant feared that if she returned to Pakistan her new address would become known to her husband or family via the police.
28. The Claimant described the police force in Pakistan as corrupt and stated they would not be able to protect her. The Claimant would not be able to live anywhere else in Pakistan as she has no male support.
29. The Claimant is certain that her husband is in Pakistan as his father had passed away, and he would not allow his mother to live on her own. He would therefore be living in Mirpur area.
30. The Claimant confirmed that her daughters are doing well in school, the elder daughter is in her final year undertaking her GCSE examinations.
31. The Claimant was questioned by both representatives and I asked some questions by way of clarification. I have recorded all questions and answers in my Record of Proceedings and it is not necessary to reiterate them in full here. If relevant I will refer to the oral evidence when I set out my conclusions and reasons.
The Secretary of State's Submissions
32. Submitting that the appeal should be dismissed Mr Mills contended that the Respondent's guidance and country guidance case law indicated that the situation in Pakistan for women who had been subjected to domestic violence had improved.
33. Mr Mills contended that in general there was effective State protection likely to be available although it was necessary to examine each case individually.
34. Mr Mills submitted that the Claimant had not proved that she would not receive support from her family. While the Claimant had said in interview that she feared her husband and her brothers because her brothers sided with her husband, she had not contacted her brothers to confirm this was the case.
35. Mr Mills submitted that the Claimant had a subjective but not an objective fear of return. It had not been proved that there was a risk of honour killing in this case. If the Claimant had assistance from her family it would not be unduly harsh for her to relocate.
36. If the Tribunal found that the Claimant would not have family support, Mr Mills submitted that it would still be possible for the Claimant to have a reasonable internal relocation option. The Claimant's education was relevant. In her oral evidence she had claimed to have left school at 13 or 14 years of age, but had submitted a witness statement stating that she attended school until 16 or 17 years of age. Mr Mills pointed out that in oral evidence the Claimant had confirmed that she had employment in a beauty salon in Pakistan for three years prior to her marriage, which took place in 1999. The Claimant's children would attend school if the family returned to Pakistan, which would mean that the Claimant could take up employment.
37. Mr Mills pointed out that in some circumstances shelters would be available for women who had been subjected to domestic violence, as confirmed in SM and MH.
38. Mr Mills also pointed out that SM and MH confirmed that women in Pakistan could legally divorce their husbands, and could start divorce proceedings from the country of refuge via a third party with the help of lawyers in Pakistan. I was also asked to note that assistance packages would be available for those who voluntarily return. Mr Mills therefore submitted that the Claimant did have a reasonable internal relocation option.
39. With reference to Article 8 I was asked to note that both children had been resident in the UK for less than seven years. Mr Mills submitted that if it was found that it would not be unduly harsh for the Claimant to relocate, then the Claimant could not succeed with reference to paragraph 276ADE(1)(vi) as she would be unable to prove very significant obstacles to her integration into Pakistan.
40. With reference to Article 8 outside the rules, Mr Mills pointed out that little weight must be attached to private life established when individuals have been in the UK without leave.
The Claimant's Submissions
41. Mr Ali relied upon his written skeleton argument. He referred to the fifth paragraph of the head note to SM and MH, contending that this applied to the Claimant in that she had been ostracised by family members and because she is in an irregular situation, internal relocation relation would be more difficult.
42. Mr Ali submitted that the Claimant would be at risk if returned because she had shamed her family and her husband by leaving.
43. Mr Ali pointed that in answer to question 45 of her interview, the Claimant had confirmed she had not wanted to marry, but was pressurised to do so by her brother.
44. Mr Ali submitted that the Claimant is credible, and it was not disputed that she had been physically and sexually abused during her marriage. She had therefore already been subject to persecution.
45. The Claimant had said in interview that she had asked her siblings for help and they had refused. I was therefore asked to find that she would not have family support. She would not have any male protector or guardian. The Claimant only had a basic education and comes from a poor family. This would make internal relocation more difficult.
46. Mr Ali submitted that if the Claimant approached the police, they would not offer adequate protection and would attempt to take her back to her husband. Mr Ali pointed out that there is an expert report at pages 290-322 of the Appellant's bundle and asked that I take that into account.
47. I was asked to allow the appeal on the basis that the Claimant would be at risk if returned to Pakistan.
48. With reference to Article 8, Mr Ali submitted that the best interests of the Claimant's daughters would be to remain in the UK where they care currently in education, and there is considerable evidence within the Appellant's bundle, of the progress they are making at school.
49. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
50. I have taken into account all the oral and documentary evidence placed before me, together with the submissions made by both representatives. I take into account the lower standard of proof that applies, which can be described as a reasonable degree of likelihood, and I accept that it is important that I view the Claimant's account in the context of conditions in Pakistan. This I have done by considering the background evidence and country guidance case law.
51. I have considered the evidence in the round, and with anxious scrutiny.
52. It is common ground that the Claimant is a citizen of Pakistan with two teenage daughters, and that she and her daughters have been resident in the UK since they arrived as visitors in July 2012.
53. Findings preserved from the FtT hearing, confirm that the Claimant was forced by her family to marry her husband, and that throughout the marriage, she was raped and physically beaten. Her marriage took place in 1999.
54. I accept that the Claimant fled to the UK in July 2012, when her husband left the family home. She lived with her husband in the Mirpur area, where her siblings also live.
55. I find as a fact, that the Claimant has not contacted her husband since coming to the UK, and she believes that he does not know of her whereabouts. I accept that she is frightened of her husband, and I also accept that the Claimant has not contacted her family since her arrival in this country. She believes that they too are not aware of her whereabouts. I accept that the Claimant believes that her brothers would feel ashamed because she left her husband, and it was a marriage that her family were instrumental in arranging.
56. I set out below paragraph 339K of the Immigration Rules which I find is relevant in this appeal;
339K. The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.
57. The Claimant has been subjected to what I find to be persecution or serious harm from her husband, in that it has been accepted that she received physical and sexual abuse, including rape. Therefore I regard that as a serious indication of her well-founded fear of persecution, and I have to consider whether there are good reasons to consider that such persecution or serious harm would not be repeated if she returned to her home.
58. I do not find that there are good reasons to consider that such harm would not occur again. The behaviour of her husband continued throughout the marriage. I am satisfied to the lower standard of proof, that if the Claimant returned to her husband, having left him and taken her daughters with her, without stating her whereabouts, that behaviour would be repeated. In my view it would be a source of shame to her husband, and also to her brothers, that she left her husband and fled to another country.
59. The Claimant did not receive any assistance from the police during her marriage, but she did not report her husband's behaviour to them. Her explanation for that is that there would be no point in making such a report. I am satisfied to the lower standard of proof that the Claimant's husband would be at the former matrimonial home. I accept the point made by the Claimant that he would be unlikely to leave his widowed mother to live alone. The Respondent's records indicate that the Claimant's husband did not in fact travel to the UK in 2012 although he told the Claimant that he was doing so.
60. The Claimant would be returning as a lone female with two teenage daughters. I am satisfied that she would not have family support. I do not find that this is speculation on the Claimant's part. I note in answer to question 61 of her interview which took place as long ago as 1st May 2013, that the Claimant said "I even ran from my siblings. Whenever I asked for support from them they refused". The Claimant also made this point at paragraph 27 of a witness statement she prepared dated 19th March 2015 which was before the FtT.
61. I therefore find that in the past, the Claimant has asked her family for support and it was not forthcoming.
62. The Claimant would be returned as a female with no male protector or guardian. I set out below paragraph 34 of AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC);
34. The starting point in assessing whether the Appellant would be given sufficient protection if returned to Pakistan is to consider whether there is systemic insufficiency of State protection. In relation to Pakistan, having regard to the case of AH and also to the case of KA and Others (domestic violence - risk on return) Pakistan CG [2010] UKUT 216 (IAC), it cannot be said that such a general insufficiency of State protection has been established. Neither party submitted that there was, nor do we find, that the background evidence before us demonstrates such an insufficiency.
63. However I also set out paragraphs 2 and 3 to the head note of AW;
2. Notwithstanding systemic sufficiency of State protection, a Claimant may still have a well-founded fear of persecution if authorities know or ought to know of circumstances particular to his/her case giving rise to the fear, but are unlikely to provide the additional protection the particular circumstances reasonably require.
3. In considering whether an Appellant's particular circumstances give rise to a need for additional protection, particular account must be taken of past persecution (if any) so as to ensure the question posed is whether there are good reasons to consider that such persecution (and past lack of sufficient protection) will not be repeated.
64. I have also taken into account when considering sufficiency of protection, the Respondent's own guidance and I set out below section 3 which is the policy summary;
3.1.1 Although there have been a number of legislative and other measures undertaken to improve the situation of women in Pakistan in recent years, gender based violence against women remains a serious problem.
3.1.2 Although some police may be unwilling to offer it, in general effective State protection is likely to be available for women fearing gender based violence. However, each case needs to be carefully considered on its facts.
3.1.3 Internal relocation to avoid risk from gender based violence may be viable in some cases depending on the family, social and educational situation of the woman in question.
3.1.4 A grant of asylum will be appropriate for a woman who fears gender based violence where they have demonstrated:
(i) a real risk of continuing hostility such as to raise a real risk of serious harm in her former home area; and
(ii) that they would have no effective protection in their home area against such a risk; and
(iii) they are unable to relocate elsewhere in Pakistan.
65. I have also considered the Respondent's guidance at section 10 on police attitudes and responses to violence against women and find it is appropriate to set out 10.1.1 and 10.1.2 below;
10.1.1 The USSD Human Rights Report for 2014 stated that 'women who try to report abuse faced serious challenges ... Police and judges were sometimes reluctant to take action in domestic violence cases, viewing them as family problems. Instead of filing charges, police typically responded by encouraging the parties to reconcile. Authorities usually returned abused women to their abusive family members'. The same report also noted that 'There were reports that police and security forces raped women. The government rarely took action against those responsible'.
10.1.2 The Aurat Foundation concurred, stating 'Dispute within marriage are largely seen as private matters by the police that are better resolved within the home ... Repeat offenders [of domestic violence] are mostly admonished and counseled before the woman complainant is sent back home to/with him'. The Aurat Foundation added that 'Protection orders may be issued in rare cases where the accused has a prior criminal record or is considered particularly dangerous, after a woman gives an application in court that her safety is compromised. This is however, not common practice for most VAW (Violence Against Women) cases'.
66. I have placed some weight upon the expert report prepared by Olivia Holden who was asked by the Claimant's representatives to produce a report addressing risk on return and what could happen with children, especially in light of the Secretary of State's argument that the Claimant could benefit from a women's shelter. The expert stated at paragraphs 51 and 52;
51. I have no doubt in affirming that although measures by the State to fight police corruption and collusion with criminal gangs, have recently been adopted, vulnerable individuals, cannot reasonably expect to avail the help and protection from the police.
52. As individuals without family support and social connections in Pakistan it is to be expected that the Appellant and her children will attract the unwanted attention of the police. As a result the Appellant will be in a situation of likely danger for either being tracked down by their own family members, or being made the object of undue pressure.
67. At paragraph 58 the expert stated that the Appellant and her children would be at risk of destitution if returned to Pakistan if the Appellant lived separately from her husband, and there would be a consequent risk of losing custody of her daughters, and she would be exposed to violence and honour killing, and exposed to an accusation of adultery.
68. I have considered with care the country guidance case law and background evidence. I conclude that the Claimant would be at risk from her husband if returned to her home area. She would be returning with no family support and with no accommodation. It would not be reasonable to expect her return to her husband's home, and resume family life, given the acceptance that this has involved years of physical brutality and rape.
69. I am satisfied that the Claimant in the past has requested family support and this has been refused, and for that reason I conclude that she would not have family support if she returned.
70. Although there is a general sufficiency of protection within Pakistan, I find in a case such as this, where the risk is of domestic violence between husband and wife, that the police would not take appropriate action and would encourage the parties to reconcile, and would attempt to return the Claimant to her husband if she made a complaint. I place weight upon the Respondent's own guidance on this issue, in particular section 10.1.1 and 10.1.2.
71. For the reasons given above I find that the Claimant would be at risk at her home area and she would not have a sufficiency of protection from the State.
72. I therefore turn to consider whether the Claimant has an option of reasonable internal relocation, or whether this would be unduly harsh.
73. In considering internal relocation I have followed the guidance in SM and MH. This confirms that where there is a risk of persecution or serious harm in her home area for a single woman or female head of household there may be an internal relocation option to one of Pakistan's larger cities. This will depend on the family, social and educational situation of the woman in question. It would not normally be unduly harsh to expect a single woman or female head of household to relocate internally within Pakistan if she can access support from family members or a male guardian in the place of relocation. 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 helping her to get well paid employment and pay for accommodation and childcare if required.
74. The Claimant will not have family support and will not have a male guardian in the place of relocation. She has a basic education and has had no work experience since she married in 1999. She could therefore not be described as educated, or 'better off'. She does not have qualifications which would help her to get well paid employment.
75. I do not find that the State domestic violence shelters would be of assistance to the Claimant. The focus of these shelters is on reconciling people with their family networks, and I do not find that the Appellant would wish to be reconciled with her husband, and places in the shelters are in short supply and time limited. Privately run shelters are more flexible providing longer term support, but again places are limited. The domestic violence shelters do not always allow older children to enter and stay with their mothers. There is therefore a risk of separation of the Claimant from her teenage daughters.
76. Applying the guidance in SM and MH to the Claimant's situation, I find in the absence of family support, qualifications, and lack of a male guardian, that it would be unduly harsh for the Claimant and her daughters to attempt to relocate within Pakistan.
77. I conclude that the Claimant has a well-founded fear of persecution and she is therefore entitled to a grant of asylum. She is therefore not entitled to a grant of humanitarian protection.
78. Mention was made by Mr Ali of Article 2 of the 1950 Convention at the commencement of the hearing, but I do not find that the high threshold is met, although I do find that the Claimant would be at risk of treatment that is prohibited by Article 3. Therefore the appeal is also allowed in relation to Article 3 of the 1950 Convention, for the reasons given when considering the asylum aspect of this appeal.
79. Because I find that the Claimant would be at risk if returned to Pakistan, and she has no reasonable option of internal relocation, I also find that she satisfies paragraph 276ADE(1)(vi) in that there would be very significant obstacles to her reintegration into Pakistan, given the circumstances of herself and her daughters. Therefore the appeal is also allowed with reference to Article 8. It is not necessary to go on and consider Article 8 outside the Immigration Rules.
Notice of Decision
The decision of the FtT is set aside. I substitute a fresh decision.

The Claimant's appeal is allowed on asylum grounds.

The Claimant is not entitled to humanitarian protection.

The Claimant's appeal is allowed on human rights grounds in relation to Articles 3 and 8.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

The Claimant is granted anonymity throughout these proceedings unless and until directed otherwise. No report of these proceedings shall directly or indirectly identify her or any members of her family. Failure to comply with this direction could lead to a contempt of court.

Signed Date: 17th February 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

No fee has been paid or is payable. There is no fee award.

Signed Date: 17th February 2017

Deputy Upper Tribunal Judge M A Hall