Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08168/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 30th July 2016
On: 2nd August 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

MS
(anonymity direction made)
Appellant
And

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms A. Faryl, Counsel instructed by IAS (Manchester)
For the Respondent: Mr G. Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a female national of Pakistan born in 1981.

Anonymity Order
2. 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 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"
The Appeal
3. In a determination dated the 13th January 2016 the First-tier Tribunal (Judge McDade) allowed the Appellant's appeal against a decision to reject her protection claim. The Secretary of State brought an appeal to the Upper Tribunal and by way of decision promulgated on the 20th April 2016 I found the decision to contain an error of law and set it aside, albeit preserving many findings of fact1. This decision concerns the remaking of that decision.
Background and Matters in Issue
4. The basis of the Appellant's claim was that she had a well-founded fear of "honour" based violence in Pakistan. She had grown up in Karachi with her parents and siblings. She remained in education until she was 17 and thereafter operated a beauty parlour from the family home. In approximately 2011 she formed a relationship online with a man in the UK. This man proposed marriage to her. She eventually persuaded her father to allow her to come to the UK to meet with this man. Her sister, who was supposed to chaperone her, was refused a visa and she ended up coming alone. The real life relationship was very different to the online version. The Appellant's Intended treated her badly and withdrew his offer of marriage. The Appellant confided in her sister who informed other members of the family that she was living alone in the UK, having been rejected. The Appellant's brothers were very angry. They had always opposed her coming her and now they perceived that the family had been "shamed" and that it was her fault. In 2015 the Appellant's father died and her brother [I] became head of the family. He, and the next in line, have made numerous threats to the Appellant that if she returns to Karachi they will kill her. These threats were accepted by the First-tier Tribunal to be genuine indictors of objective risk and it was on this basis that the appeal was allowed.
5. The Secretary of State successfully appealed on the ground that the First-tier Tribunal had not properly considered the question of internal flight. It was common ground that the Appellant could not succeed in her appeal if there was another area of Pakistan in which she could safely, and reasonably, live. The Secretary of State's 'reasons for refusal letter' had suggested that it was open to this young woman to establish herself in another part of the country. She was educated and resourceful; she had run her own business whilst in Karachi and she could replicate its success elsewhere. If she had any difficulty in re-establishing herself she could receive support from a state-funded shelter. The First-tier Tribunal had found, with reference to the United States' State Department Report 2014, that these shelters "could hardly be described as a place of safety" and had allowed the appeal. I found there to be an error in approach.
6. The first error was that the Tribunal had not directed itself to the extensive consideration of internal flight in the then extant country guidance case of KA & Others (domestic violence - risk on return) Pakistan CG [2010] UKUT 216 (IAC) and the central conclusion reached:
"... the network of women's shelters (comprising government-run shelters (Darul Amans) and private and Islamic women's crisis centres) in general affords effective protection for women victims of domestic violence"
Whilst it was of course open to the First-tier Tribunal to consider and make findings on evidence that post-dated that decision, the findings in KA should have been the starting point, particularly since the Respondent had placed direct reliance on them.
7. The second error was that the decision did not adequately address the central point made by the Respondent, which was that this was a young woman who had run her own business in Pakistan. The determination had described her as neither "professional nor highly educated"; this did not appear to take into account the evidence that she had herself given. For instance, in her visa application form the Appellant had written:
"I am a sole proprietor, currently running my own hair and beauty salon business under the name of 'Glamorous Look' in Karachi, Pakistan. My monthly income from my business is PKR 60,000"
8. The findings on internal flight were set aside. On the 15th June 2016 the matter came back before me for those findings to be re-made.
The Re-Made Decision
The Legal Framework
9. Article 8 of the Qualification Directive2 reads:
1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.
10. In SSHD v AH (Sudan) [2007] UKHL 49 the House of Lords make clear that the question of whether internal flight is "reasonable" is not to be equated with the test under Article 3 ECHR. Lord Bingham refers [at 5] to his own guidance in Januzi [2006] UKHL 5:
"In paragraph 21 of my opinion in Januzi I summarised the correct approach to the problem of internal relocation in terms with which all my noble and learned friends agreed:
'The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so?.There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department, [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls? All must depend on a fair assessment of the relevant facts'.
Although specifically directed to a secondary issue in the case, these observations are plainly of general application. It is not easy to see how the rule could be more simply or clearly expressed. It is, or should be, evidence that the enquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There is no warrant for excluding, or giving priority to, consideration of the applicant's way of life in the place of persecution. There is no warrant for excluding, or giving priority to consideration of conditions generally prevailing in the home country. I do not underestimate the difficulty of making decisions in some cases. But the difficulty lies in applying the test, not in expressing it. The humanitarian object of the Refugee Convention is to secure a reasonable measure of protection for those with a well-founded fear of persecution in their home country or some part of it; it is not to procure a general levelling-up of living standards around the world, desirable though of course that is."
11. At [20] Baroness Hale cites with approval the UNHCR view that the test is whether the individual will be able to live a "relatively normal life without undue hardship", itself a formulation approved by their Lordships in Januzi3:
"As the UNHCR put it in their very helpful intervention in this case:
'?the correct approach when considering the reasonableness of IRA [internal relocation alternative] is to assess all the circumstances of the individual's case holistically and with specific reference to the individual's personal circumstances (including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities). This assessment is to be made in the context of the conditions in the place of relocation (including basic human rights, security conditions, socio-economic conditions, accommodation, access to health care facilities), in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual could live a relatively normal life without undue hardship'.
I do not understand there to be any difference between this approach and that commended by Lord Bingham in paragraph 5 of his opinion. Very little, apart from the conditions in the country to which the claimant has fled, is ruled out."
12. The assessment on the individual characteristics of the claimant must include her personal history, and its relevance in the society in which she is relocating. See for instance VNM v SSHD [2006] EWCA Civ 47 [per Wilson LJ at 25]:
"... it is obvious that the reasonableness of her relocation in a different part of Kenya requires consideration of the practicability of her settling elsewhere; consideration of her ability convincingly to present to those in her new milieu a false history relating to herself and to her daughter, including the latter's paternity, and a false explanation for their arrival there; and, in the light of her substantial psychological vulnerability, consideration of her ability to sustain beyond the short term a reasonable life for them both on that false basis".
13. At the time of the First-tier Tribunal decision the applicable country guidance was KA (supra). By the time that the decision came to be re-made before me the decision in SM (Lone Women - ostracism) Pakistan [2016] UKUT 67 (IAC) was available. The headnote summarises its helpful guidance:
(1) Save as herein set out, the existing country guidance in SN and HM (Divorced women - risk on return) Pakistan CG [2004] UKIAT 00283 and in KA and Others (domestic violence - risk on return) Pakistan CG [2010] UKUT 216 (IAC) remains valid.
(2) Where a risk of persecution or serious harm exists in her home area for a single woman or a female head of household, there may be an internal relocation option to one of Pakistan's larger cities, depending on the family, social and educational situation of the woman in question.
(3) It will not be 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.
(4) 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 accommodation and childcare if required.
(5) Where a single woman, with or without children, is ostracised by family members and other sources of possible social support because she is in an irregular situation, internal relocation will be more difficult and whether it is unduly harsh will be a question of fact in each case.
(6) A single woman or female head of household who has no male protector or social network may be able to use the state domestic violence shelters for a short time, but the focus of such shelters is on reconciling people with their family networks, and places are in short supply and time limited. Privately run shelters may be more flexible, providing longer term support while the woman regularises her social situation, but again, places are limited.
(7) Domestic violence shelters are available for women at risk but where they are used by women with children, such shelters do not always allow older children to enter and stay with their mothers. The risk of temporary separation, and the proportionality of such separation, is likely to differ depending on the age and sex of a woman's children: male children may be removed from their mothers at the age of 5 and placed in an orphanage or a madrasa until the family situation has been regularised (see KA and Others (domestic violence risk on return) Pakistan CG [2010] UKUT 216 (IAC)). Such temporary separation will not always be disproportionate or unduly harsh: that is a question of fact in each case.
(8) Women in Pakistan are legally permitted to divorce their husbands and may institute divorce proceedings from the country of refuge, via a third party and with the help of lawyers in Pakistan, reducing the risk of family reprisals. A woman who does so and returns with a new partner or husband will have access to male protection and is unlikely, outside her home area, to be at risk of ostracism, still less of persecution or serious harm.
The Factual Matrix
14. It is accepted that the Appellant has a well-founded fear of persecution in Karachi for reasons of her membership of a particular social group, namely women in Pakistan.
15. At the resumed hearing on the 15th June 2016 I heard further evidence from the Appellant. She adopted her statements dated 25th September 2015 and 2nd June 2016. I have also had regard to the Appellant's interview record, her SEF statement, and to the evidence given before the First-tier Tribunal.
16. In respect of her education the Appellant agreed that she had attended school until she was approximately 17. She started when she was about 5 or 6 at a free of charge state school. She states that she enjoyed school, but was "not a bright student". She passed her matriculation with the bare minimum of marks. It was open to her to attend college after she left, but her father did not allow her to because she had not done well enough at school. After she left she stayed at home and helped her mother with housework and cooking. After her mother died her elder brother's wife took charge of such matters, and the Appellant continued to assist her.
17. As I note above the Appellant had already disclosed her involvement in the beauty parlour before she ever claimed asylum: she had relied upon it in the course of her marriage visa application. She was asked about it at interview. She stated that it wasn't a big business, there were 5-6 girls working under her including her sister. In her most recent statement she had given more detail:
"I used to enjoy with my friends making ourselves up. We all taught ourselves how to put make up on and also basic hair cutting and attempts at styling.

Because I enjoyed doing this, I suggested to my father about setting up a parlour at home for me to do this. I said that it may at least give us as a family a bit more money. It took my father some time to agree to this. My younger sister Naila was also keen to be involved in this and was also involved from the start.

It was my Dad who bought the things we needed, make up and mirrors and lights. And we used a ground floor room in our house.

We started this in around 2012, calling it 'Glamourous Look'. I also asked some of my friends to be involved, who I knew were good at this. This all depended on how busy things became. And it did become popular in our local area, being at its most busy around both Eids and for local weddings and parties".
18. In her oral evidence the Appellant confirmed that the business start-up costs had been provided by her father and that he had continued to support her where necessary, for instance buying equipment. The other girls who worked there were all friends. They would work different hours depending on how busy it was.
19. The Appellant does not accept that her success could be easily replicated elsewhere in Pakistan:
"The Home Office have said that because of this parlour, I can easily do something similar in another part of Pakistan and support myself independently. This is incorrect. As I have said before, in Pakistan it is just not acceptable for a single woman to rent a room. No one would be prepared to rent a room to me. I would need to have a male member of the family, a husband or father or brother, with me to be able to do this. As a single woman, I would not be able to do this alone. So how could I be able to start up anything like any business, no matter how small, it I am not able to find somewhere to live first?"
20. As to where she might go in Pakistan the Appellant avers that she has never lived outside of Karachi. She could not go to Rawalpindi, Islamabad, Lahore or Haripur because she has family living in all of these cities and she would be afraid that her brothers would find her there. At her asylum interview she said that her brother was involved in "transport" and that he knew a lot of people. Her brother [I] is in the MQM and he has a lot of connections.
Findings
21. I find the Appellant to be a credible witness. In this I concur with the assessment made by the First-tier Tribunal. Her evidence was clear and consistent. There was nothing therein that I found to be implausible either generally, or in light of the country background material. I assess the facts presented against the country guidance given in SM and the appropriate legal framework.
22. The Appellant does have a basic level of education, having graduated from school following matriculation. She states that she did not get good grades, and I find this claim to be consistent with the fact that instead of progressing to university (like other middle class girls might be expected to do), she instead remained at home and opened a beauty parlour. I accept that she does not have any qualifications bar her 'matric'.
23. I accept that after she left school the Appellant operated a beauty parlour from her family home. From what she said I do not understand this to have been an informal arrangement (ie just friends popping in); rather it was a properly equipped salon. She said that her father bought special lights, mirrors and other equipment. She and her sister worked their pretty much full time, with other girls working as and when required. She has therefore gained some experience not just of beauty work, but of running a business. I accept that she has had no other form of employment.
24. I accept that the Appellant is estranged from her family in Pakistan. She has no partner and as such would be returning alone.
25. I have not been provided with any particular evidence relating to the Appellant's mental state or medical history. She avers in her statements that she has been suffering from depression and in view of her recent history I do not doubt that she is feeling low. She was tricked by a man whom she thought she loved, was treated badly by him, has been disowned and threatened by her own family and has lost her greatest ally, her father. In those circumstances I see no reason to reject her evidence that she is very sad and "terrified" at the prospect of returning to Pakistan to establish herself in a strange city. I accept, in light of the background material, that she is very apprehensive about how she will be viewed by others in Pakistani society.
26. Against these findings on the Appellant's personal characteristics I assess the likely circumstances that she would be living in should she return to Pakistan.
27. The Secretary of State submits that the Appellant can avail herself of internal flight a) because she is educated, b) she has a skill and experience of running her own business, c) she is from a city and d) in the last resort she can avail herself of the protection of a shelter.
28. I deal with the questions of the shelters first. The findings of the Tribunal in SM are clear. Whilst there are places available for women at risk, these shelters are massively oversubscribed. Places are in short supply and stays are time limited. The focus of such institutions is reconciling the woman in question with her family. The accepted evidence before the Tribunal was that entry to these places is "taboo" in Pakistani society and women who enter them are likely to be harshly judged [see for instance the Aurat Foundation evidence cited in the 2015 Country Information and Guidance' at paragraph 50 SM]. I am satisfied that there is a possibility that the Appellant would be able to access such a shelter, but her stay would very likely be time limited. Internal flight is only an alternative to international protection if it is a durable solution. Entry to a shelter would be unlikely to be of anything other than short term assistance to this Appellant.
29. The more likely scenario is that she will be compelled, sooner or later, to live alone in a large city. The Appellant has averred that she has close family members (her sister, brother-in-law, uncles) in a number of major cities but obviously there are other cities and large towns in which she could try and live. I accept that from the outset, her journey to independence would be overshadowed by her subjective fear of discovery. All of the evidence considered by the Tribunal in SM indicated that it might be possible for a young woman to live on her own, for instance by renting an apartment, but even the most positive of the respondents, the Warwick University Law Professor cited in the CIG, agreed that it would be "difficult" [at 57] and that a lower/middle class woman attempting to break away from her family would face "danger" [at 56]. The nature of these dangers is elucidated at by Professor Ballard who believes that a woman who cannot afford to pay for high-class accommodation "would be at risk of accepting an accommodation offer which she realises too late came with sexual strings attached". This evidence is given against the background of the material inter alia in the CIG to the effect that young women living on their own without a male guardian are viewed with suspicion. Those seen to be estranged from their families run a significant risk of being viewed as "dishonourable" ie sexually 'immoral'. I therefore further accept that in addition to her subjective fear of discovery by her family the Appellant would be living with the stigma of being a woman without a male relative.
30. All the sources identify class, education, wealth and greater age as protective factors. The Appellant has none of these on her side. She may be from a relatively middle class family - as she describes it - but this is going to be of little assistance to her in negotiating life in a strange city with no qualifications, capital or connections to call upon. I accept that it will be near to impossible for the Appellant to set up her own business against this background. On the basis of the accepted evidence in SM I am satisfied that her fears about finding safe and affordable premises are well-founded. It is questionable how she would build a client base in a community which viewed her with suspicion.
31. I have considered the alternative, that she seek employment as a beautician in another company. This would appear to be her least worse option. I have given careful consideration to the likelihood of the Appellant managing to do that. Although I do not have any specific evidence on the availability of such work I bear in mind the following factors. The Appellant has no qualifications, and would have to give herself a reference, since her father has passed away. Any prospective employer is likely to be interested to know why a young Pathan woman from Karachi is now seeking employment whilst apparently living alone. A prospective employer may be concerned about how such an employee would be viewed by the clients. Even if she managed to secure such employment it is likely to be relatively low paid and insecure work. I cannot be satisfied that it would be sufficient for the Appellant to live on her own in a city. Nor would such employment offer the Appellant protection from gossip, innuendo, unwanted sexual advances or worse. Having considered all of these factors I am satisfied that the Appellant would find it very difficult to lead anything like a normal life upon return to Pakistan. To put it another way, internal flight would be unduly harsh in all the circumstances.
32. It follows that the appeal must be allowed.
Decisions
33. The determination of the First-tier Tribunal is set aside to the extent identified above.
34. The decision in the appeal is re-made as follows:
The appeal is allowed on asylum and human rights grounds. The Appellant is not entitled to humanitarian protection because she is a refugee.
35. There is an anonymity order in force.

Upper Tribunal Judge Bruce
29th July 2016