Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03300/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 31 August 2016
On 22 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

Ms Nadia [J]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Eaton of Counsel
For the Respondent: Mrs R Pettersen, a Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. This is an appeal by the appellant against the decision of Judge of the First-tier Tribunal Spencer ("the Immigration Judge"). In a decision promulgated on 11 July 2016 the Immigration Judge dismissed the appellant's appeal against the respondent's decision to refuse her international protection. The appellant had previously been detained under the Fast Track procedure but complains that there were procedural irregularities in the statement taken whilst she was in detention.

2. Judge of the First-tier Tribunal Dineen (Judge Dineen) thought that the grounds raised in an application for permission to appeal to the Upper Tribunal dated 25 July 2016 were at least arguable in the following respects:
(1) it was arguable that the appellant had correctly submitted in her grounds that no weight should be placed on a statement made whilst in detention;
(2) it was also arguable that an adverse credibility finding, based on the original statement in interview which should not have been admitted, should also not be allowed to stand since that statement should not have been given weight;
(3) it was also arguable in that it was not a legitimate criticism of the appellant, for the purposes of section 8(5) of the Asylum Treatment of Claimants Act 2004 ("2004 Act") that she had failed to make her asylum claim before being served with a notice curtailing her leave since this may have been based on a misunderstanding of the facts;
(4) finally, it was arguable that the Immigration Judge had taken an approach to internal relocation without reference to country guidance and, in particular, the head note in the leading case of SM (no reference given). Having been accused of adultery, which was a criminal offence in Pakistan, it was arguable that the appellant will be subject to adverse forces from her parents and her husband's parents. It was thought by Judge Dineen that the Immigration Judge had erred in finding that the appellant had made no claim to being assisted by a Mr Umair.
The Hearing

3. On 10 August 2016 Directions were sent out of a standard type indicating that the Upper Tribunal would not entertain evidence not before the First-tier Tribunal (FtT). A notice of hearing accompanied those directions indicating that the hearing was set for 31 August 2016 at 10.00am.

4. Both parties were represented at the hearing. Full details are contained in the Tribunal file.

5. Mr Eaton went straight to the grounds. First, he drew my attention to the fact that in paragraph 35 of the Immigration Judge's decision the Immigration Judge had found the appellant to be "broadly consistent", although he went on to point out certain specific concerns about her evidence. The Immigration Judge was criticised for finding (at paragraph 38 of his decision) that Section 8(5) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 applied. The appellant had separated from her husband in May 2014 and her leave was curtailed in August 2014. The Immigration Judge had been wrong to find that the appellant would necessarily have been aware of the curtailment of her leave on the basis that she "must" have realised that this followed from her separation from her husband. That section provides that a failure by a claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claimant relies wholly on matters arising after the notification, would be a matter justifying an adverse credibility finding. Apparently, the Immigration Judge here found that the appellant's credibility had been damaged and he had rejected her evidence that she did not realise her visa would or may be affected by the separation. The Immigration Judge found that she was "an intelligent lady" who ought to have been aware that her separation would affect her entitlement to remain in the UK. It had been accepted that she was entitled to enter the UK because of her relationship with Mr Abbas. The Immigration Judge found that the appellant chose not to investigate her immigration status and Section 8(5) was therefore engaged. It was submitted that the respondent's criticism of the appellant in paragraph 31 of the refusal was that the appellant should have contacted the Home Office not that she knew or ought to have known of a formal termination of her leave. It was submitted that was not the situation Section 8(5) was aimed at.

6. In addition, it was argued that the appellant was at risk on return to Pakistan as she could not return to her parents' or her parents-in-law's homes. She should, therefore, have been recognised as having a genuine fear of return, following the breakdown of her relationship with Kazam. However, the respondent had gone on to find that following a breakdown of the relationship with Kazam she had deliberately delayed her asylum claim and this was the type of behaviour which should be considered under Section 8(2). It was submitted that this was also incorrect. There was no evidence that the appellant had deliberately delayed in bringing forward her claim to asylum after the curtailment of leave decision had been served. Having found that no curtailment of leave decision was had been served, Section 8 (5) could not be relied on at all, Mr Eaton submitted. The most that could be said was that this was a late claim.

7. Mr Eaton's second ground for attacking the decision of the Immigration Judge also related to paragraphs 35-37 of his decision. The Immigration Judge found that accusations of adultery had been made but that they were private accusations, in the sense that they were not made public whilst she was in Pakistan. The Immigration Judge found that she had given inconsistent accounts and that the appellant would not be shamed in public in Pakistan as the accusations would not be evade public. According to the Immigration Judge, any public accusations of adultery would have been referred to by the appellant in her interview. Mr Eaton was critical of the Immigration Judge's findings in relation to the adultery allegations. He pointed out that in paragraph 11 of her witness statement the appellant says that in June 2013 her partner abused her and cursed her "in public". Kazam's own father had accused the appellant of having an affair with someone and she had been publicly named and shamed. No police or law enforcement agency could do anything to prevent her suffering inhuman punishment. She had been treated as an adulterer. Mr Eaton drew my attention to the fact that the key difference between the first alleged adultery and the second is that, in relation to the second, this was made public in 2014. Hence, the appellant was potentially guilty of a criminal offence, with much more serious consequences.

8. Mr Eaton than went on to outline ground 2, that is, that the Immigration Judge erred in his approach to the appellant's first witness statement, which had been drafted at a time when she was unlawfully detained. I was referred to the leading case of Lord Chancellor v Detention Action [2015] EWCA Civ 840 in which the Court of Appeal had found the Fast Track rules to be unfair and unjust. The appellant had previously been detained and the respondent's Fast Track procedure. The appellant had also been interviewed by the respondent. Following the judgment in the above case, her detention was ruled unlawful. I was referred to the judgment and specifically the judgment of the Master of the Rolls in where he suggested (at paragraph 45) that in his view the time limits that have been set for applicants to provide evidence un support of their claims, made it impossible for there to be a fair hearing of their appeals in the significant number of cases. The safeguards which the respondent and the Lord Chancellor relied on were insufficient. The system was therefore "structurally" unfair and unjust. The scheme did not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues raised and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention. A lawful scheme must properly reflect both the need to allow an appellant to put his case and process that application as quickly as possible consistent with fairness and justice. I was referred to paragraph 36 of the decision in this case, where the Immigration Judge had relied on certain answers the appellant had given to questions asked whilst she was in detention. He was, in Mr Eaton's submission, wrong to have done so.

9. Next, Mr Eaton expanded on his submissions in relation to ground 3. This states that the Immigration Judge erred in relying on Section 8(5) of the 2004 Act when he stated that the appellant had damaged her credibility by failing to make an asylum claim before being notified of the curtailment of leave decision. It is "trite" in Mr Eaton's view that a statutory provision should be construed narrowly. If she was never aware that her leave had been revoked or curtailed how could she, in Mr Eaton's submissions, be said to have acted in a manner which damaged her credibility.

10. The final ground, ground 4, related to the Immigration Judge's approach to internal relocation. In SM (lone women - ostracism) [2016] UKUT 67 (IAC) the Upper Tribunal found that a "single woman" in Pakistan without children is "ostracised" by family members. This makes it "difficult" for her to relocate and it may be unduly harsh to require her to do so therefore. It is a question of fact in each case whether it would be unduly harsh to require the appellant to relocate. The case of SM was the most recent case that Mr Eaton had been able to find on the matter. In the head note it highlights the difficulties in internal relocation. The "first mistake" the Immigration Judge made, he submitted, was to limit his assessment to the home area when in fact the appellant had been alleged to have committed a criminal offence which may be punishable throughout Pakistan. The Federal Police Service had connections throughout the country and would probably arrest her on arrival at the airport. Her family had supported the Pakistan People's Party (PPP) and family members in Islamabad would be informed what had happened. The appellant was an adulteress, or suspected adulteress, and would be treated accordingly.

11. Ms Pettersen, on the other hand, thought that the respondent's refusal was sound and the Immigration Judge had correctly decided that the appellant had failed to establish that she had done anything which would offend against the Islamic principles under which Pakistan society operates. As far as the allegation of adultery was concerned the appellant's father-in-law did not appear to know that she was in England. It was not clear that any accusation of adultery had been made and the Immigration Judge had been correct to find that she did not qualify for asylum/human rights' protection. There had been a failure to refer to any earlier incidents when the appellant had originally been spoken to. The Immigration Judge had not erred in finding that the appellant did not qualify as a refugee / person in need.

12. I was referred to certain criticisms by the Court of Appeal of the system of asylum detention but the Immigration Judge had not recorded any submission or answer in interview which would be inadmissible. In the absence of such submission, the Immigration Judge was entitled to consider the interview, giving it such weight as he saw fit. The grounds of appeal appeared to be wide ranging. The judge had taken into account the allegation of adultery in 2014. However, the Immigration Judge had correctly applied Section 8 of the 2004 Act, albeit that the wrong sub-section (sub-section (5)) had been referred to. This was a late claim and its lateness damaged the appellant's credibility. The Immigration Judge had made clear findings and come to clear overall conclusions at paragraphs 43-44. It was not reasonably likely that the appellant would face continuing hostility from her family members. There was no real risk of harm and she could safely relocate to another part of Pakistan. There was no material error of law identified and the criticisms really amounted to no more than a disagreement with the FTT's conclusions, which were robust and sustainable.

13. In response, that the appellant submitted that the respondent's criticism of ground 4 (the internal relocation ground) was based on a false premise. The appellant did not accept that she would necessarily be safe anywhere in Pakistan. It was accepted that adultery raises the possibility of a criminal charge in Pakistan and the appellant was subject to this risk. The Immigration Judge, having wrongly rejected her appeal, I was invited to remit the matter back to the FtT.

14. Both sides seemed to agree that fresh findings would be necessary if I was to find a material error law in this case.

Discussion

15. The appellant is a Pakistani citizen born on 13 January 1986. On 29 November 2010, she married Kazam Roza Abbas, a Tier 4 Migrant, also a citizen of Pakistan. Abbas was studying in the UK. The appellant came to the UK as the spouse of a person present and settled here. Her leave was subsequently curtailed, it would seem, because of her relationship breaking down. Notice of the appellant's curtailment of leave was given on 8 August 2014 and on 4 February 2015 she was served with Form IS151A informing her that her immigration status was such that she was liable to detention and removal. The appellant then applied for asylum on the basis that her in-laws spread word about the community that she is an adulteress.

16. An initial appeal went to Yarl's Wood, but that her detention there was subsequently found to be unlawful.

17. At the hearing before me on 31 August 2016 the appellant argued that the Immigration Judge had been wrong to attach significant weight to the appellant's delay in claiming asylum. Section 8(5) of the 2004 Act provides that a failure by a claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claimant relies wholly on matters arising after the notification, must be considered by the deciding authority as a matter damaging the claimant's credibility. It was pointed out in the oral submissions made by Mr Eaton that in fact the appellant had raised concerns over the conduct of her in-laws prior to being notified of an adverse immigration decision (i.e. the decision to curtail her leave). It was argued that the Immigration Judge had been wrong to even refer to this.

18. It is not clear when the appellant is said to have been notified by her father-in-law that she had been accused of adultery. It seems that she was warned by her sister in April 2015 that if she returned to Pakistan she would need to go into hiding.

19. There seems to have been an argument as to the extent to which it was proper for the Immigration Judge to take account of certain admissions made in interview but, as the respondent pointed out at the hearing before the Upper Tribunal, the Immigration Judge had rejected the appellant's account of having been alleged to have been an adulteress. At paragraphs 35-36 the Immigration Judge rejected her account and there appears to have been no submission before him that the Immigration Judge had been wrong to take account of all or part of the interviews. The Immigration Judge found numerous inconsistencies in the evidence (see for example paragraph 37 of his decision). It seems that although the evidence as a whole was consistent it was severely lacking in detail. In such circumstances the Immigration Judge was entitled to reject it.

20. It is not clear from the chronology presented to me that the appellant did notify the respondent at the earliest opportunity of her potential claim based on the allegations of adultery. I consider that these are serious allegations and that in Pakistan she would have faced a degree of discrimination, indeed, it would be reasonably likely to cross the threshold for persecution in certain circumstances. However, the question is: whether those circumstances existed here? The Immigration Judge fully considered the objective evidence and the case law, including the leading case of SN and HM. His decision appears to have been thoroughly reasoned and to have considered the appellant's account against that background evidence. The Immigration Judge concluded that the appellant would not be personally at risk, for the reasons he gave.

21. It submitted that her father-in-law was "connected with the FIA", part of the Federal Police Service. It was alleged that given his high-level connections there would be no safe place where she could go and therefore there was no realistic internal flight alternative to claiming asylum/international human rights protection. It was said as well that the appellant had family members in Islamabad, presumably from her husband's side.

22. The finding that the appellant could relocate within Pakistan also appears sound, despite these submissions. The Immigration Judge found the appellant to be a highly intelligent and well educated lady who had demonstrated her ability to find employment, access health care and so forth whilst she had been in the UK. In his view, she would be able to relocate to a safe place in Pakistan. At paragraph 45 of his decision the Immigration Judge took account of the difficulties in relocating but concluded that it was not unduly harsh to require her to relocate to an area (which, he concluded existed) where she would not fear persecution.

Conclusion

23. A technical deficiency exists in relation to the treatment of Section 8(5) of the 2004 Act. However, as the respondent submitted, the decision overall was sound. It took account of the correct legal principles and applied those principles to the findings made. There is no material error of law in the decision of the FTT.

Notice of Decision

The decision of the First-tier Tribunal does not contain any material error of law and accordingly this appeal is dismissed. The FTT's decision to dismiss the appeal against the respondent's decision stands.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hanbury