Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06027/2015

THE IMMIGRATION ACTS

Heard at: Liverpool
Decision & Reasons Promulgated
On: 4th April 2017
On: 7th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SH + 1
(anonymity direction made)
Appellant
And

Secretary of State for the Home Department
Respondent

For the Appellant: Ms Anderson, Anderson & Moores
For the Respondent: Mr A. McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Pakistan born in 1985. Her dependent is her son, who was born in the UK and is now 4 years old. The Appellant appeals with permission1 the decision of the First-tier Tribunal (Judge Sharkett) to dismiss her protection and human rights appeal.

Anonymity Order

2. This is an asylum claim involving a child. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

“Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and Decision of the First-tier Tribunal

3. It was the Appellant’s assertion that she and her son faced a real risk of “honour” killing should she be returned to Pakistan. She had come to the United Kingdom as a student, and whilst here had entered into a relationship with a Pakistani man, identified in this determination as ‘T’. They had moved in together and she had fallen pregnant. It is her case that they had not married. Her family in Pakistan had found out about this and had threatened to kill her and the child. They had wanted her to marry someone else and they were very angry. It is said that when T was removed to Pakistan, her family set upon him and beat him up, and that he was only saved from the intervention of people in the street. The Appellant asserted that as an illegitimate child her son would face a risk of harm or death from her family; even if he managed to avoid this, he would face serious societal discrimination and the legal consequences of his illegitimacy, for instance in registering for an identity card, in accessing education and health services. She claimed that her family would be able to find her wherever she and the child tried to live in Pakistan.

4. The Respondent dismissed the entire claim for want of credibility. The refusal letter also raised issues of sufficiency of protection and internal flight, but I am told that when the matter came before Judge Sharkett in August 2016 the parties were in agreement that the central issue was credibility: if the Appellant could discharge the burden of proof to the relatively low standard of “reasonable likelihood”, her appeal would be allowed.

5. Judge Sharkett heard evidence from the Appellant, and her friend who attended to support her. She was provided with a bundle of documents including what purported to be a medical report relating to the assault in Pakistan on T, and evidence that her family had place an advertisement in a Pakistani newspaper seeking information about her whereabouts. The Respondent supplied the transcript of the interview conducted with the Appellant and a copy of a determination made by the First-tier Tribunal (Judge Karagaratnam) in respect of T. In a long and detailed decision Judge Sharkett made the following findings:

The Appellant did not give birth to her child out of wedlock. There were numerous inconsistencies in the evidence about this matter and it was not accepted that this couple would choose not to protect themselves and their child by contracting a nikah

The claim that her family were pressuring her to marry someone in Pakistan was rejected as inconsistent with the evidence that they had paid for and supported her decision to continue her studies in the UK

The Appellant’s family did not threaten to kill her in February 2013. The Appellant had attended the hearing in T’s appeal in December of that year and had made no mention of those threats despite fear of honour killing being the centrepiece of T’s case

The Appellant was not afraid of returning to Pakistan. She had gone there for a friend’s wedding in November 2012 and it is not credible that she would have done so if she were in fear of her family

T was not assaulted in the manner described. There are significant inconsistencies and implausibilities in the evidence about this alleged assault. Nor is it accepted that he has gone missing or been murdered by her family. Although the Appellant denies any recent contact with him, and has put in a request to the Red Cross to find him, she has not pursued any of the more obvious routes like sending him an email, asking his family or friends, or asking the police in Pakistan to find him

The Appellant’s family are not looking for her

6. Overall the Tribunal concluded that the Appellant was not telling the truth and rejected the protection claim. The findings of fact then informed the Article 8 assessment. At paragraph 104 the Tribunal found that if returned to Pakistan the Appellant would have the support of her family and that she and her son would be able to resume life as a family unit with T. The Tribunal rejected the notion that the child would be at risk on return and found it to be in his best interests to remain with his mother. Even if the relationship with T was no longer subsisting, the Appellant was an educated and resourceful woman and she had not demonstrated that it would be unduly harsh if she were to relocate within the country. The appeal was dismissed on all grounds.

The Appeal

7. Ground 1 of the written grounds is that the “judge has not applied the law”. Multiple errors are alleged, including a “failure to apply the Borders Act 2007”, that the “judge did not apply the refugee convention” and that the “judge breached Article 6 Human Rights Act 1998” (sic). Under the heading “judge did not follow correct procedure”, Ground 2 submits that the welfare of the child was not assessed, nor the best interests’ principle applied. It is submitted that the immigration rules have not been followed and that the decision is not in accordance with those rules.

8. Setting aside the legal inaccuracies in the drafting, vague and un-particularised grounds such these are of no assistance to the Tribunal, nor more importantly, to the Appellant. There is no explanation as to what any of the alleged misdirections or procedural errors actually were. I do not therefore propose to deal with any of these alleged deficiencies in the determination, bar the specific matters raised in Ms Anderson’s oral submissions.

9. Ground 3 alleges that “there was significant evidence which was not considered”. I deal with this matter below.

10. The application for permission was out of time. The grounds therefore request an extension of time on the grounds that the Appellant was seriously unwell during the period that the appeal was supposed to have been lodged. The grounds say that upon receipt of the decision of the First-tier Tribunal the Appellant “attempted suicide” and that this “suicide attempt was directly attributable to the decision of the tribunal”. It was on this basis that Judge Ford was prepared to admit the application and extend time. I do not say that he was wrong to do so; I would however make the following observations. The Appellant has submitted a statement in which she claims that she was depressed and panicking when she got the decision, and that she considered drinking bleach but did not do so because she thought about her son. That is what is described as a “suicide attempt” by the drafter of the grounds. I consider it is wholly inappropriate that the grounds attribute the Appellant’s claimed behaviour to the decision of the First-tier Tribunal. There was no medical evidence at all to support that conclusion, nor was there any evidence at all that the Appellant actually received any treatment or intervention from mental health services. That this is so is indicative of the way that this appeal has been presented overall.

Discussion and Findings

11. In her oral submissions Ms Anderson took issue with the protection findings made by the First-tier Tribunal. She submitted that the Tribunal had failed to take into account the Respondent’s guidance on the position of women in Pakistan and the fact that “honour” based violence exists.

12. There is no basis at all for the suggestion that Judge Sharkett was unaware of the country background situation. The determination makes express reference to the country guidance (for instance at 61 and 107) and to the submissions made by the Appellant’s counsel about the prevalence of violence against women (at 58). None of the negative credibility findings were premised on the account being implausible in the context of the general human rights situation in Pakistan. The account was rejected because it was internally inconsistent. Numerous cogent reasons were given for each of the findings made. None of those could have been affected by a more explicit reference to the Respondent’s CIG. Indeed most of the findings concerned claimed events in the UK.

13. Ms Anderson repeatedly made reference to the “fact” that the Appellant has had a baby out of wedlock. She premised her submissions on s55, the Refugee Convention and Article 8 on this assertion.

14. The difficulty with this ground is that Judge Sharkett, like Judge Karagaratnam before her, expressly rejected the claim that the Appellant and T were unmarried. T’s appeal was heard in December 2013. He heard evidence from T and the Appellant on what was essentially the same factual matrix as that presented in this appeal: T’s claim was that he and the Appellant were at risk because they had a child together outside of wedlock. Judge Karagaratnam noted that T repeatedly referred to the Appellant as his “wife” and found it incredible that these two people, who claimed the intention to marry within three days of meeting and moving in together, had not in fact done so. There was no satisfactory or credible explanation as to why they had not contracted a nikah. Judge Sharkett had regard to those findings and then went on to make her own assessment of the evidence. She noted that the explanations advanced as to why the couple had not married were markedly inconsistent. The Appellant had said that they wanted to marry but they were happy with their baby and so “did not treat marriage as a priority”; then she said that marriage was just about having a piece of paper and so they debated whether it was necessary; she also said that they did not marry after she fell pregnant because in Islam it is forbidden to marry when pregnant; finally she volunteered at the hearing (having never mentioned it before) that they had tried to get married before T was removed from the country but were unable to do so because he was in detention. Judge Sharkett further gave reasons why the entire account was not credible. The Appellant claimed to be from a traditional Pakistani family and that as a result of her upbringing she considered it “shameful” that she and T were not married. This evidence was difficult to square with her claim that within three days of meeting this man she had moved in with him and was having a sexual relationship with him. It further raised the question as to why, if she considered it to be shameful that they were not married, the couple did not go through the relatively straightforward procedural requirements of a nikah, particularly where they might have had reason to think that they would face problems from their respective families if they did not.

15. I am satisfied that these were all good reasons to support the finding that the couple had in fact married. The approach taken was wholly in accordance with the principles set out in Devaseelan [2002] UKIAT 00702. Before me Ms Anderson submitted that in fact there was another reason why the marriage had not taken place. The Appellant and T had tried to marry but had been told by the Imam that because T did not have any papers they could not do it there. Apart from the fact this is post-decision evidence and so inadmissible in the context of an ‘error of law’ hearing, this is yet another conflicting explanation to add to the list compiled by Judge Sharkett in her decision. It did not assist the Appellant’s case in any way that this “evidence” was volunteered by way of Ms Anderson’s submissions.

16. Finally Ms Anderson submitted that the risk assessment in the determination was flawed for a failure to consider the alternative position. It might be that the couple were married, but that since it was a love marriage they faced “honour” based violence from their families. Mr McVeety strongly objected to this ground. He pointed out that it not for the Tribunal to speculate about alternative possible scenarios where appellants might be at risk. I agree. The Appellant had squarely put her case on the basis that her son was illegitimate, and it was from this assertion that all the other evidence - and alleged risks – arose. If the couple were in fact married, there was no case left to assess. Had the Appellant couched her evidence in the alternative (ie “my parents are angry because they think I have had a baby outside of wedlock or they believe that I have married without their consent”) that would be a different matter, and there would indeed be an omission in the risk assessment. Ms Anderson was however unable to take me to where that alternative case might have been put.

17. Ground 3 alleges that there was “significant evidence” that was not considered by the Tribunal. This primarily related to medical/educational evidence about the Appellant’s son and the ‘best interest’ assessment. The grounds state that the child suffers from “speech, language and behavioural problems” and that he was under investigation for several physical issues including urinary tract infection and testicular abnormality. It was this ground that persuaded Judge Ford to grant permission. Ms Anderson submitted that the determination does not address any of these matters and that the Judge should have considered the child’s mental and physical impairments when considering whether it would be in his best interests to send him to Pakistan. She submitted that in accordance with s55 the Judge should have “treated the child as British” and given consideration to the “fact” that as an illegitimate child he would not have access to the education and health systems in Pakistan. She submitted that the child is “about to be diagnosed with epilepsy”.

18. These submissions were at best misconceived, and at worst deliberately misleading.

19. First, neither of the Appellant’s bundles that were before the First-tier Tribunal contain any medical evidence relating to the Appellant’s son. The Tribunal was asked to rely on extensive written grounds provided by the Appellant’s then representatives Duncan Lewis Solicitors. These written submissions make no mention of the little boy having any difficulties. In her own witness statement the Appellant mentions that she has several medical complaints which are being treated by the NHS, but says nothing about any issues arising in respect of her son. There is then little wonder that Judge Sharkett does not address any of these matters, since she did not know about them. In her submissions Ms Anderson referred to several letters from various hospitals and agencies giving the Appellant appointments for her son. These are in the file. They were submitted to the Tribunal in an envelope postmarked the 18th November 2016, only a few weeks after Ms Anderson submitted the application for permission to appeal. I presume since she was then on record that these documents were forwarded to the Tribunal by Ms Anderson herself, and she likely therefore understood that these were not documents seen by Judge Sharkett. It cannot be an error of law for a judge not to address matters of which she was not aware.

20. I would note for the sake of completeness that none of the letters belatedly relied upon give any explanation of what issues the little boy actually has, how serious his condition might be or how it might have changed the decision of the Tribunal.

21. Finally, Ms Anderson took issue with the overall Article 8 assessment. These submissions were predicated on her assertion, returned to repeatedly, that this was a woman at risk for having transgressed the social norms of her culture. It was variously submitted that the Appellant’s removal would be disproportionate because she and her child would have to live alone, they had no protection and would face discrimination. All of these matters were flatly rejected by the Tribunal. On the findings made by the Tribunal, the Appellant can return to her family in Pakistan, or alternatively, establish a separate family unit with T. Ms Anderson has been unable to identify any arguable error of law in respect of those core findings of the Tribunal and it follows that this appeal must be dismissed.

Decisions

22. The determination of the First-tier Tribunal does not contain an error of law and it is upheld.

23. There is an order for anonymity.

Upper Tribunal Judge Bruce
5th April 2017