Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA063872015

THE IMMIGRATION ACTS

Heard at Centre City Tower Birmingham
Decision & Reasons Promulgated
On 21st April 2016
On 14th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

ms saira rashid
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Stephen Vokes (Counsel)
For the Respondent: Mr David Mills (HOPO)

DETERMINATION AND REASONS

1. This is an appeal against a determination of First-tier Tribunal Judge Boylan-Kemp, promulgated on 12th August 2015, following a hearing at Birmingham Sheldon Court on 10th July 2015. In the determination, the judge allowed the appeal of the Appellant, whereupon the Appellant applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a citizen of Pakistan, and was born on 20th November 1980. She is a female. She first arrived in the UK on 10th March 2013 on a visitor's visa which was valid until 26th August 2013. She then claimed asylum shortly before the expiry of her visit visa on 6th August 2013. She was referred to the Coventry Law Centre. They have acted for her ever since. The asylum claim was rejected on 27th March 2015 together with the claim for humanitarian protection under paragraph 339C of HC 395. The reasons given by the Respondent were that it was not accepted that her claim that she feared persecution and ill-treatment from her father on account of her refusal to marry her cousin, the chosen spouse by her family, would put her in difficulty.
3. In fact, the refusal letter notes how the visit visa was initially refused on 23rd May 2012 because it was considered that the Appellant was not a genuine visitor to the UK. It was considered that she would not leave the UK at the end of the visit. The Appellant then appealed that decision and a visa was granted only after her winning her appeal on 26th February 2013. The Respondent rejected the Appellant's claim that her father arranged her marriage to her paternal cousin while she was in the UK. Indeed, the Respondent Home Secretary placed particular weight on the fact that the Appellant failed to mention in the witness statement that two wedding invitations had been received by family in the UK and that names were spelt incorrectly on these invitations.
4. Furthermore, the Respondent also placed weight upon the fact that all the letters submitted as evidence of the Appellant's father's intentions towards her of her family members and are therefore self-serving. The Appellant did contact the forced marriages unit but no further investigation was carried out and therefore little weight could be placed upon this fact. The Respondent did not accept that the Appellant did not know about arranged marriages being very common within Pakistan. Moreover, it was not accepted that the Appellant's father mistakenly alerted her as to the marriage prior to her leaving the UK. Quite simply, the claim that the Appellant's father was out to kill her was rejected.
5. In any event, the Appellant would be able to relocate internally if necessary and it will be reasonable for her to do so because she spoke the language of the country, had been educated there, and had relevant work experience skills, being a teacher in a school in Pakistan.
The Judge's Findings
6. The judge found that the inconsistencies in the documents in relation to the spelling of the names and so on did not mean that the documents were not genuine or that they were created purely for the purpose of the appeal because in that case "the invitations would have been identical and the names would have been spelt correctly to ensure that there were no questions raised as to their validity" (see paragraph 43).
7. On the other hand, the judge did find that it was highly likely that the Appellant would have an arranged marriage "due to this being the norm within her culture, but I am not persuaded that the Appellant would have known specifically about the arranged marriage between herself and a paternal cousin". This is because, as the judge concluded, "I found the Appellant to be a credible witness and her evidence was that she did not know about her father's plans in advance of the receipt of the invitation" (paragraph 46).
8. Finally, the way that the judge treated the evidence of the Appellant's relatives was to say that,
"although I appreciate that the majority of the Appellant's evidence as to the individual risk to her is from her own relatives and is therefore to a degree self-serving, I do not see what other evidence she could have provided in this respect ..." (see paragraph 53).
9. The outstanding issue, in these circumstances, therefore, remained as to the possibility of internal relocation for the Appellant, given that a finding of risk of persecution had been found with respect to her. The judge held that, although the submission from the Respondent Secretary of State was that the Appellant had excelled in her employment, was reasonably well educated, and there should be no reason as to why she could not relocate internally within Pakistan, as a lone woman the Appellant could not reasonably do so. The way in which the judge came to this conclusion was after first concluding that,
"I am not persuaded by the assertion that the Appellant's father would be able to find the Appellant easily if she were to relocate elsewhere in Pakistan as there has been no evidence provided to suggest her father has such a powerful reach" (paragraph 58).
It was after this that the judge concluded that,
"however, I do find that requiring her to relocate as a single female in Pakistan without any familial support available to her would be unreasonable and would be unduly harsh. Therefore, I find internal relocation would not be a viable option for the Appellant" (paragraph 58).
10. The appeal was allowed.
Grounds of Application
11. The grounds of application state that there has been no consideration by the judge of the availability of shelters and the possibility of internal relocation, given the judge's findings that the Appellant's father could not relocate her elsewhere in Pakistan and that she has the ability to find employment in Pakistan. She was a teacher. The refusal letter made this clear. This oral context ought to have been considered by the judge.
12. On 27th August 2015, permission to appeal was granted on the basis that the judge ought to have considered the guidance in the country guidance case and to have assessed the possibility of internal relocation in that context.
Submissions
13. At the hearing before me on 21st April 2016, Mr Mills, appearing on behalf of the Respondent Secretary of State, stated that the oral challenge here is to the availability and reasonableness of internal relocation for a woman for whom there would not be a risk of ill-treatment in any part of the country. Mr Mills, in a dextrous and skilful submission before me, stated that, although the operative country guidance case at the time of the determination was KM (Pakistan) [2012] UKUT 216, the Upper Tribunal had since then provided a guidance in the case of SM (lone woman - ostracism) Pakistan [2016] UKUT 67. Whilst it was accepted that this decision was obviously not available before the judge, there is evidence that was put before the Tribunal in the latter case, which would have been publicly available for consideration by Judge Boylan-Kemp, but which was overlooked, such that it could not reasonably have been concluded that the Appellant could not access the availability of shelters in another part of the country or in another part of Lahore. The hearing before Judge Boylan-Kemp was, after all, on 10th July 2015. The case of SM [2016] UKUT 67 was heard even before then by the Upper Tribunal on 21st May 2015, and judgment then only subsequently promulgated on 2nd February 2016.
14. Second, and no less importantly, Mr Mills submitted that, even if that evidence was not before the Tribunal of Judge Boylan-Kemp, nevertheless, the judge does not really deal with the issue of the reasonableness or internal relocation by demonstrating any substantive engagement for the facts on the ground. All that the judge states (at paragraph 58) is that, "I do find that requiring her to relocate as a single female in Pakistan without any familial support available to her would be unreasonable and unduly harsh". This, was a conclusion, however. It was not the provision of reasoning behind that conclusion.
15. Third, a proper analysis was particularly important in a case such as this, where the judge had already found that the Appellant's father was not such a powerful person as to be able to reach out to the Appellant in another part of the country. All the more so, therefore, that the judge should have considered whether, without familial support being available to her, the Appellant could relocate safely somewhere else, including in the same city. What SM (lone woman - ostracism) Pakistan [2016] UKUT 67 now made clear was that, (as suggested in head note 4) that,
"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 her accommodation and childcare if required".
Such a change, submitted Mr Mills, required the judge to provide more than just a conclusion in his decision, on the facts before him, than simply a conclusion at paragraph 58.
16. For his part, Mr Stephen Vokes submitted that there could be no error of law in the determination of Judge Boylan-Kemp. This was for the following reasons. First, it was elementary law that a decision maker can only decide upon the materials that were before the decision maker. There is no suggestion that any of the objective material which was before the Upper Tribunal in 2015 where it heard SM on 21st May 2015, was equally available for consideration before the Tribunal of Judge Boylan-Kemp. The judge decided on the evidence before him. He could not be criticised for that.
17. Second, the judge had stated, in the preceding paragraphs, before paragraph 58, the materials that demonstrated the difficulties in internal relocation, and not least by reference to the case of KA (Pakistan) [2012] UKUT 216. All there could be, therefore, is a "reasons challenge", but this was unsustainable. Mr Stephen Vokes directed my attention to the established case of Slimani (Algeria) [2001] UKIAT 00009, where Mr Justice Collins had stated that, "the realities that it is quite impossible to set out a detailed checklist of what must be done in all cases". His Lordship stated that,
"the only guidance needed is that the conclusions reached must be justified and it must be clear that any adverse findings in particular are based on evidence put before the Adjudicator or the Tribunal and a proper explanation must be given to show why the conclusions on the issues of substance had been reached. We have no wish to encourage lengthy decisions. Succinctness is a virtue ..." (at paragraph 10).
18. Third, a consideration of the judge's determination demonstrates how he did get to grips with the facts of the case. At paragraph 34 the judge observes the Respondent Home Secretary's case that the Appellant would be able to relocate internally if necessary and that it would be reasonable for her to do so. At paragraph 36 onwards the judge begins to give his reasons. At paragraph 51 the judge observes that "the Appellant had a very good job in Pakistan and that she had held this position for a number of years before taking an agreed short break to come to the UK to visit her cousin" (paragraph 51). At paragraph 53 the judge deals with the majority of the Appellant's evidence being from her relatives and concludes that not much more could have been provided. At paragraph 55 the judge stated that, "I find there is nothing to suggest that the Appellant would find sufficiency of protection but rather that she would fall into the general rule that protection was unavailable for women fearing gender based violence". At paragraph 56, which is a key paragraph in the determination, the judge observes that the refusal letter had dealt with the issue of internal relocation at paragraph 29 through to 36,
"and concludes that it will not be unreasonable for the Appellant to relocate to Lahore as she will be able to fly into one of three international airports in Pakistan and that she will be able to access State support shelters and crisis centres provided for women".
This is because the Appellant spoke the language of the country and had already demonstrated considerable personal fortitude in relocating to a country where she did not speak the language fluently.
19. The judge had dealt with all these matters before concluding that internal relocation was not reasonable and would be unduly harsh given that the Appellant was a single female in Pakistan (a matter accepted in the Respondent's bundle at paragraph 1.3.14 with respect to the difficulties regarding internal relocation for women).
20. Mr. Vokes also referred to a section from the Human Rights Commission in Pakistan (at paragraph 2.4.1) which confirms that it is difficult for a single woman to live alone in Pakistan given the need generally speaking for economic dependency. Mr Vokes submitted that this section plainly showed that internal relocation would be unduly harsh in this case.
21. In reply Mr Mills stated that the author of the report from Human Rights Commission in Pakistan had expressed this is an opinion and that the "qualification" to this by the UK Government was set out in the "Policy Summary" of the Respondent's evidence at page 87, where there is a section that makes its clear that, "each case needs to be carefully considered on its fact" and that, "internal relocation to avoid risk for gender based violence may be viable in some limited cases". Generally, shelters produced effective protection elsewhere. The Appellant could find such protection elsehwhere.
22. Second, the judge actually agrees (at paragraph 58) that the availability of shelters elsewhere will provide her with protection, because her father would not have a reach powerful enough to get to her, but the only question was whether this would be unduly harsh or not.
23. Third, in that event, the only issue was whether she could relocate, and in deciding that she could not, the judge provided no reasoning. It is important for the losing party to know why they have lost. The Respondent Secretary of State cannot be sure of that.
Error of Law
24. I am satisfied that the making of the evidence by the judge involved the making of an error of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. My reasons are as follows.
25. First, the judge (at paragraph 58) simply reached the conclusion, and does not provide reasons for why she concludes that "a single female in Pakistan without any familial support available to her" would not find it reasonable to relocate.
26. Second, the error of law is all the more glaring given that the only basis upon which the judge shows an analysis of the feasibility of internal relocation is her statement (at paragraph 54) that the "Policy Summary" (which appears at page 57 of the Appellant's bundle), is to the effect that, "effective protection is, in general, unlikely to be available for women fearing gender based violence. However, each case needs to be carefully considered on its facts". The judge did not consider this case "carefully" on its own facts. Indeed, what the judge went on to say was that, "I find there is nothing to suggest that the Appellant would find sufficient protection but rather she would fall into the general rule that protection was unavailable for women fearing gender based violence" (at paragraph 55). To that extent, the judge avoided consideration of the circumstances in which, after considering each case carefully on its own facts, it could be said whether or not the possibility of internal relocation was indeed available on the facts of this case. That is an important point because on the judge's own finding, she had earlier stated that, "I have given weight to the fact that the Appellant had a very good job in Pakistan and that she had held this position for a number of years ..." (paragraph 51). In these circumstances, if anyone was likely to find internal relocation (particularly in circumstances where the threat to her from her family did not extent to all parts of the country), it would be a woman in the Appellant's position. The matter needed proper consideration.
27. Thirdly, the "Policy Summary" (which appears at page 87 of the bundle) also makes it clear that, "internal relocation to avoid risk for gender based violence may be viable in some limited cases". The judge should have considered whether this was one such limited kind of case. This was particularly important, given that (at the risk of reputation) the judge had found that the Appellant's father would not be able to trace her away from her locality, and the Appellant was a person who had held "a very good job in Pakistan". In the absence of proper reasoning in this respect undermined the findings made by the judge.
Re-Making the Decision
28. I remade the decision on the basis of the findings of the original judge, the evidence before her, and the submissions that I have heard today. I note that both Mr Vokes for the Appellant and Mr Mills for the Respondent Secretary of State, were agreed, that in the event of my finding there to be an error of law, I should proceed to remake the decision. This indeed is the normal course of action under Practice Statement 7.2 which enjoins the Upper Tribunal to proceed to remake the decision subject to the exceptions set out therein. I am dismissing this appeal for the following reasons.
29. First, fundamental to the Appellant's situation is the fact that she "had a very good job in Pakistan and that she had held this position for a number of years ..." (see paragraph 51 of the original judge's determination). It is also fundamental that the Appellant's father would not be able to find the Appellant easily "if she were to relocate elsewhere in Pakistan as there has been no evidence provided to suggest her father has such a powerful reach" (paragraph 58 of the original determination). In this context, even were the position to have been considered at the time of the original judge's determination it was incumbent upon her to have regard to the "policy summary" which states (at paragraph 1.3.15) that, "educational and professional women may find it possible to support themselves in alternative locations". This is an Appellant who speaks the language of her country and has already demonstrated considerable dexterity and resourcefulness in coming to a country like the UK, the language of which she does not use as her first language. Shelters and crisis centres are available in Lahore as they are in other major cities in Pakistan.
30. I note Mr Vokes' submission before me, made passionately and with vigour that the case of KA [2010] UKUT 216 made it clear that "young adult women are likely to find it more difficult to live alone than others" (paragraph 240). However, to say that it is more likely to be in difficulty, is not to say that all cases are going to be presented with a difficulty making relocation unduly harsh, particularly in circumstances where it is already recognised that a critical feature in the ability of being able to relocate is educational and professional attainment. Added to this is the fact that the Appellant faces no persecution from her father away from her locality. It is for the Appellant to demonstrate why she would not be able to find internal relocation, given that the basis of refugee law is the provision of surrogate protection, which means that international protection can only be accessed if the country of nationality is unable to provide essentially, and on the facts of this case, it is plain that such sanctuary can be provided, particularly for an educated and professional young woman, in circumstances that are by no means unique in a country like Pakistan for such women.
31. Second, but more importantly, in remaking the decision this Tribunal now has to consider the position that appertains at this moment in time, and that position is the one dictated by the latest operative jurisprudence in this jurisdiction, namely, the case of SM (lone woman - ostracism) Pakistan [2016] UKUT 67, which makes it clear that internal relocation may be an option in one of the Pakistan's larger cities, and that this depends on the social and educational situation of the woman in question.
32. The Appellant is a person who has excelled in her employment and is reasonably well educated. The case of SM makes it clear that,
"it will not normally be unduly harsh for educated, better off, or older women to seek internal relocation to a city. It helps if the woman has qualifications enabling her to get well paid employment and pay for accommodation and childcare if required".
There is nothing to suggest here why this would not be the case. If anything, the facts of this case suggest that this is an Appellant who already, was not only educated, but in professional employment. Were she to go into a shelter, there is no reason why, upon leaving the shelter subsequently down the line, she would not, in a country where women teachers are far and between, be able to get employment in a school again. Her track record suggests that she would. There is also the possibility that the Appellant could enter a privately run shelter, and the case of SM makes it clear that these could provide longer term support while the woman regularises her social situation.
33. It is vitally important to recognise that there are variations with respect to the position of single women across Pakistan. These are in relation to the age, prosperity and educational status of the women in question. This was recognised in SM when the Tribunal referred to the expert report of an assistant professor from the Metropolitan College of Denver who had stated that, "Pakistan has [a] very sharp rural and urban divide", and that it would depend on which problems and in what context they are living (see paragraph 56 of SM). Urban centres are more individualistic, more literate, and have better infrastructure and transportation facilities "and plenty of job opportunities i.e. skilled or unskilled" (see paragraph 56). It is also the case that a province like the Punjab, where Lahore is located is "more educated than liberal" (see paragraph 56 at page 14 of the determination).
34. In short, if one were to apply SM (lone women - ostracism) CG [2016] UKUT 67, it is plain that this Appellant can, on the lower standard, find internal relocation without any difficulty that is viable and reasonable for her to do. This latest country guidance case makes it clear that,
"educated women, those with marketable employment skills, and older women, may well be able to relocate to a city and live alone: the risk of ostracism leading to destitution is not the same in that case. It is more likely that those who reach the United Kingdom would fall into the latter category" (see paragraph 72).
35. In SM, the Tribunal held that there was no risk, on the facts of that case, of ill-treatment to the Appellant in Lahore, and the Tribunal went on to say that, if the risk were to exist in the Appellant's home area in Lahore, we do not consider that she has discharged the burden upon her of showing that she could not relocate to another part of Pakistan where she would be safe.
36. For all these reasons, this appeal must be dismissed.
37. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original Immigration Judge. I remake the decision as follows. This appeal is dismissed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 11th June 2016