Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/10026/2012
AA/10028/2012

THE IMMIGRATION ACTS

Heard at Bradford
Determination Sent
On 11 April 2013
On 14 June 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

s a
H A
(anonymity order made)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr Tete, instructed by Kirklees Law Centre
For the Respondent: Mrs R Pettersen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellants, S A and H A, were born on 11 June 1987 and 25 March 2010 respectively and are citizens of Pakistan. The appellant had claimed asylum in the United Kingdom on 6 September 2012 but her claim had been refused and a decision made on 19 October 2012 for her to be removed from the United Kingdom by way of directions under paragraphs 8-10 of Schedule 2 of the Immigration Act 1971. The appellant appealed to the First-tier Tribunal which, in a determination promulgated on 21 January 2013, had dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. There are five grounds of appeal. The first ground asserts that the First-tier Tribunal (Judge Sarsfield) had failed to consider evidence or had made a mistake as to material facts. The respondent had accepted that the appellant had suffered from ill-treatment at the hands of her husband although the extent of the ill-treatment and the claimed ongoing threat from the husband were disputed. The appellant asserted that she could not return to her home area of Pakistan or, indeed, anywhere else within Pakistan as her husband would find her, take away her son (the second appellant) and she would be at real risk of death or ill-treatment. The grounds assert that, at [22], the judge had recorded that the appellant “Has a degree and worked as a teacher ... the appellant has had her stepfather to look after her from a very early age and her own words – ‘He’s rich’.” The grounds note that the appellant had stated in her SEF interview (question 51) that NZ was her stepfather. At question 53, the appellant had said, “[NZ] is not supportive any more as I am against my husband.”
3. The respondent filed a reply under Rule 24 on 15 February 2013. At [4] of that reply the respondent asserts:
“The grounds argue that the judge has overlooked evidence in relation to the (now lack of) financial support from the stepfather. This, on careful reading of the determination, cannot be so concluded. The grounds argue that the judge implies financial support may be available upon return. This is not so. Paragraph 20(a) makes clear the judge finds no evidence of any current support. Nor, with reference to paragraph 22, does the judge find that family support would be forthcoming. The criticism of the expert [Dr Shah] is based on the expert report in the Appellant’s claim that she is not from a wealthy family but she appears not to take into account the history with the stepfather. The judge is therefore passing comment on the select evidence before the expert – not the stepfather would support upon return (sic).”
4. At [20(a)] the judge found that “There was no evidence of any current financial support from [the appellant’s father-in-law, mother or other family] ....” Having considered the evidence and the First-tier Tribunal determination very carefully, I find that I agree with the submission made in the respondent’s reply. Judge Sarsfield did not find that there was evidence to show that the stepfather or any other family member would in the future support the appellant upon her return to Pakistan. Rather, he is at [22] commenting on the failure of the expert, Dr Shah, to have regard to all the evidence before him in preparing his report. That evidence included the appellant’s claim that her “rich” stepfather had supported her in the past. I do not find that the judge has misunderstood the evidence or ignored part of the appellant’s evidence.
5. The second ground asserts that the judge has “not asked himself the correct questions with respect to internal relocation.” Referring to KA (Pakistan) CG [2010] UKUT 216, the grounds assert that it is “important to examine more closely what services exist by way of crisis centres, shelters or refuges” for women in Pakistan who have been the victims of domestic violence and notes that “a range of factors such as class, age, health education and child responsibilities etc.” should be taken into account. It is asserted that the judge has failed to adopt a “fact sensitive approach” in his approach to and analysis of internal relocation. She has a son who has behavioural difficulties and she is without family or friends to support her. She has no experience of independent living. She continues to receive counselling and emotional support and advice in the United Kingdom. It is asserted that the judge has exaggerated the appellant’s Bachelor of Arts qualification and has applied “UK educational standards” to what the appellant had described as “basic studies in Islamic Quran and other topics.” The appellant’s teaching in Pakistan had not been on a professional basis; she had worked voluntarily in a college.
6. The Rule 24 reply at [5] asserts that,
“The grounds also argue that the judge has placed undue weight on the appellant’s educational and work experience. Again, with reference to paragraph 22, this is not so. That the judge finds the appellant has the education and work experience to find employment is a finding entirely open to him to make on the evidence. The fact the appellant undertook voluntary rather than paid teaching does not undermine the finding that this puts her in good stead to get future employment. Likewise, her education – whether or not her BA degree is not comparable to a UK degree is not critical. The appellant must hold a degree award in Pakistan and thus [sic] puts her at an educational advantage in comparison to the vast majority of the population.”
7. At [23] the judge wrote:
“Dr Shah confirms that the appellant is not the subject of any police investigation and will not face hostility because of any immoral behaviour. He says internal relocation in big cities is a possibility and there are shelters available. The police are more willing to investigate in cases where there has been physical violence – as in this instance – and do take action. He says it is unlikely that the appellant’s husband or either family will try to find her in another city. I have considered the issue of relocation and the principles and additional guidance in the case of Januzi [2006] UKHL 5 which incorporate the criteria in Rule 339O. Pakistan is a large country with several large cities. Supporter systems and protection are available.”
8. The appellant has stated unequivocally in answer to question 25 at the asylum interview that she “did a BA in Islamic studies.” In his report, Dr Shah [18] records that “[The appellant’s] education level is not very high: it is matriculation, i.e. education up to tenth class in high school (equivalent to GCSE in England).” The appellant refers in her evidence to having been away at college and working on a campus. It is difficult to reconcile the appellant’s evidence with what Dr Shah has said about her education. On the face of the evidence, I find that Judge Sarsfield was entitled to conclude that there was a discrepancy between the appellant’s evidence and the contents of Mr Shah’s report and further to find that the appellant had a higher level of education than that which Dr Shah had taken as the basis of his risk assessment. I have no reason to doubt that the judge was aware of the differences in the education systems of the United Kingdom and Pakistan but I do not see why he should be criticised for taking at face value what the appellant had said in her own evidence. It follows from the judge’s findings that he was entitled to find that the appellant (with her BA degree and teaching experience, albeit on a voluntary basis) would be better placed to find a job outside her home area of Pakistan than Dr Shah considered to be the case.
9. Ground 4 asserts that the judge made findings that “are inconsistent with the evidence about the appellant’s ability to live independently.” At [22] the judge had found that “[The appellant’s] ability to settle in the UK and look after her son on her own whilst also pregnant, is experience that would assist her in looking after him and surviving and another aspect that is not covered [in Dr Shah’s report].” The grounds assert that the appellant had faced homelessness in the United Kingdom had she not enjoyed the assistance of NASS.
10. For better or for worse, the appellant has had to live independently with her child while she has been in the United Kingdom. She has received support and counselling but the fact that she has required for those services here, where they are available at little or no cost and where she has been living in an entirely foreign environment where she does not speak the language and where she may have struggled to get to grips with different social and cultural norms, does not, in my opinion, indicate that she would have any such need for similar support in her country of nationality, Pakistan. I find that it was open to the judge in considering internal flight to take into account the fact that the appellant was a relatively well-educated woman who had lived independently in the United Kingdom.
11. Ground 5 asserts that the judge failed to take account of evidence (a letter from Lynne Hirrington) a parent support worker. That letter, which was in the papers before the judge, confirms the support the second appellant is receiving and also details the behavioural problems he has which appear to result from the domestic violence suffered by the first appellant. At [6], the judge stated that he had “considered all grounds of appeal open to the appellant and the documents available.” In the light of that statement, I have no reason to believe that the judge has failed to consider any particular item of evidence. I find that there was no need for the judge to refer to each and every item of evidence in his determination. He was aware of the child’s behavioural problems and I note that very little appears to have been made of those problems in either the oral evidence adduced to the First-tier Tribunal or in the submissions of the appellants’ Counsel (Miss Pickering) at that hearing,. I am satisfied that the judge has considered all relevant evidence relating to both appellants in reaching his conclusions as to internal flight within Pakistan.
12. Ground 6 asserts that the judge has failed to address evidence concerning the best interests of the child [the second appellant] (see Section 55 of the Borders, Citizenship and Immigration Act 2009). The grounds assert that it would “not be in [the second appellant’s] best interests to be removed from the UK. It is not in accordance with his general wellbeing and promoting his welfare to do so.”
13. This ground is without merit. The judge considered Section 55 at [29]. He refers also to ZH (Tanzania) 2011 UKSC 4. He makes the valid point at [30] that “whilst prospects in the UK may be better than in Pakistan and there may be more and better services and facilities available, the appellants are not UK citizens.” He also found that there is “no medical evidence of any serious problems and medical care is available in Pakistan. Education is available too. [The second appellant] is not at school in the UK. He is young enough to adapt to life in Pakistan; the family could return as one unit.” Those observations clearly indicate that the judge has taken proper account of Section 55 in reaching his determination. He might have added that the best interests of the child are satisfied by the second appellant remaining with his mother and that there is no prospect that they will be separated as a consequence of the decisions to remove both of them to Pakistan. The grounds make no reference to the importance of a child growing up in a country of his or her nationality and with access to their own culture. The judge’s findings in respect of Section 55 were clearly open to him on the evidence.
14. For the reasons I have given above, I find that the judge has not erred in law such that his determination should be set aside. The appeal is dismissed accordingly.
DECISION
15. This appeal is dismissed.

Signed Date 2 June 2013

Upper Tribunal Judge Clive Lane