Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA066812014
aa080882014
aa066822014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 14 March 2016
On 14 June 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

kr (first appellant)
ss (second appellant)
mk (third appellant)
(ANONYMITY DIRECTION MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Miss Mair, instructed by Ahmad & Williams, Solicitors
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellants are citizens of Pakistan. The appellant SS is the mother of the appellant KR and the third appellant is the son-in-law of SS. The first and third appellants are married. The appellants were refused asylum in the United Kingdom and directions were made for their removal to Pakistan. They appealed against the decisions to the First-tier Tribunal (Judge Bircher) which, in a decision and reasons promulgated on 15 January 2015 dismissed the appeals. The appellants now appeal, with permission, to the Upper Tribunal.
2. Granting permission, Judge McWilliam considered that it was arguable that the judge had not taken into account copies of a letter from a Jirga council, the original of which the parties agree had been sent to but lost by the respondent. This letter purportedly confirmed that there had been a meeting of the Jirga council to resolve a dispute which had arisen between the appellants and a family (N) whose daughter had eloped as a member of the appellant's family. There had been an altercation involving gunfire and the N family had announced that they would "take two of the daughters of [SS] as compensation for their daughter eloping. They also said they would kill her son and their own daughter." [Decision, 42]. It is the case of the appellants that the,
"Jirga decided that two of the [daughters of SS] must be handed over to the N family and returned for the elopement of their daughter with the first appellant's son. The Jirga allowed a period of three and six months for the handing over of the daughters to them."
3. Judge Bircher dealt with this letter from the Jirga council at [12 - 19]. He was satisfied the original letter had been sent to the respondent and lost by her. He notes at [13] that "because the 'original' was not before me and has not been authenticated by either side I am not in a position to identify it as an original document." She noted there had been some delay in the appeals already [18] and concluded that, "whilst the 'original' letter may prove to be an important piece of evidence it was only one of the pieces of evidence before me." At [19], the judge wrote,
"I was satisfied that notwithstanding the missing 'original' Jirga document there was sufficient evidence before me to enable me to deal with the case fairly and justly and the request for an adjournment [to obtain the original, regarded as a hopeless quest by Judge Bircher] was therefore rejected."
4. The judge's adjudication upon the adjournment application and her comments about the "original" letter beg an important question. The judge had before her copies of the "original" but she makes no further reference to the letter in her decision. She describes the "original" letter as potentially being "an important piece of evidence". But she does not indicate what weight, if any, she has attached to the copy letter. The decision leaves the strong impression that, in the absence of the "original" letter, the copy letter was given no weight at all in the judge's assessment of the evidence. That approach would appear to have led the judge into legal error. The judge had to deal with the evidence before her and weigh it accordingly. The judge has proceeded at [65] to find that there had been no "Jirga council meeting in which an order was given for the first appellant's husband to hand over two of his daughters to the injured ... family." Although she does, indeed, refer to other evidence the role, if any, played by the contents of the copy letter relating to the Jirga council meeting remains entirely unclear. It may well be the case that the other evidence simply outweighed the probative value of the Jirga council copy letter but, if that was the case, the judge should have said so.
5. However, notwithstanding the fact that the judge appears to have made an error of law, I find there are no grounds for setting aside her decision. At [80] - [81], the judge dealt with the question of internal flight. The appellant had claimed that SS would be subjected to domestic violence from her estranged husband the judge had rejected that claim of domestic violence. The Jirga council letter has no bearing on the judge's analysis; the judge's findings on domestic violence are discrete and, in my opinion, soundly reasoned. The judge's basis for assessing internal flight, therefore, rested on the fact that SS would be able to resume her relationship with her husband in Pakistan upon her return there. If that were not possible and the marriage had broken down, then SS "will have the benefit of returning to Pakistan with the children but also, significantly with her son-in-law who can adopt the role of the head of the household." The judge went on to conclude as regards internal flight:
"Alternatively the Tribunal in KA held that single women with children could live in larger cities within Pakistan where they would not experience the same level of societal discrimination that can occur in smaller towns or the rural areas of Pakistan. It would not be unreasonable to expect the appellant and her children to internally relocate to another area of Pakistan in accordance with the case law of Januzi."
6. Miss Mair, for the appellants, accepted that before me that the internal flight findings form part of the core findings of this decision. She argued, however, that the family would still face the real risk of violence in Pakistan on account of the history of domestic violence between SS and her husband. As I have noted above, the judge has rejected that account of domestic violence. It follows that, even if the judge had accepted that appellants' account of the elopement and the Jirga council meeting and decision, the appellants' appeals would still fall to be dismissed because the appellants would be able to avail themselves of internal flight within Pakistan to a larger city where they might live without the threat of violence. That finding remains sound notwithstanding the difficulties Judge Bircher may have encountered over the Jirga council copy letter. I have decided, notwithstanding the judge's error in law, to exercise my discretion not to set aside this decision. Accordingly, the appeal is dismissed.
Notice of Decision

These appeals are dismissed.

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

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 9 June 2016

Upper Tribunal Judge Clive Lane

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 9 June 2016

Upper Tribunal Judge Clive Lane