Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
AA/11070/2015
AA/11073/2015
AA/11074/2015
AA/11075/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 5th December 2016
On : 7th December 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant

And

L H + 3
(anonymity direction made)
Respondent

For the Appellant: Mr Harrison, Senior Home Office Presenting Officer
For the Respondent: Mr Ahmad, Counsel instructed by MA Consultants, London

DECISION AND REASONS

1. The Respondent is a female national of Pakistan. Her three dependents are her three children, born 2003 2007, and 2008. On the 24th March 2016 the First-tier Tribunal (Judge L.A.L Paul) allowed her appeal on human rights and asylum grounds. The Secretary of State for the Home Department now has permission to appeal1 against that decision.

Anonymity Order

2. This case concerns a claim for international protection and three minors. 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 him or any member of his 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 Matters in Issue

3. The Respondent had advanced a complex account of gender based violence. She had variously claimed as part of her asylum case that she had suffered psychological and physical abuse at the hands of an aunt, an uncle, her husband, her brother-in-law and some men of unknown identity connected to her brother-in-law. She stated that her brother-in-law had lodged an FIR with the police in Pakistan accusing her of adultery.

4. The Judge rejected a good deal of that. He did not accept, to the lower standard, that as a teenager the Respondent had been raped by her uncle or abused by her aunt. That was because she had given inconsistent evidence about that part of her claim. Nor did he accept that she had been raped by her brother-in-law. Her evidence about that had also been judged unreliable. The evidence about the FIR did not establish any risk since the Respondent could conclusively prove to the Pakistani police that she had been in the United Kingdom at the time that she was alleged to be having an affair in Pakistan. Furthermore there were reasons to doubt the authenticity of the FIR itself.

5. All of that said, the First-tier Tribunal did find that there were some elements of the claim that were true. It was accepted that the Respondent has been the victim of sustained domestic violence at the hands of her husband. It was, "in particular" persuaded by the evidence of two independent witnesses, Mrs Joanne Jervis, the Safeguarding and Pastoral Manager at Higher Failsworth Primary School and Mrs Gilliam Hall from 'Resolve Oldham - Counselling Service for children Affected by Domestic Violence and Sexual Abuse'. Accepting their evidence about the accounts given by the children, the Judge was satisfied that the Respondent had indeed been subjected to harm as claimed. Implicit in that finding was a finding of current risk. The determination proceeds to consider internal flight. The Tribunal directs itself to consider the findings of the Upper Tribunal in various country guidance cases on Pakistani women. Having done so it notes that on the evidence it is very likely that the Respondent's two sons would be separated from her and that this would be contrary to the best interests of the children. The father would be favoured by the Pakistani courts in disputes over custody. She is estranged from her own family, would have nowhere to live and would have no family support. This would strengthen his already strong claim. In all the circumstances the appeal was allowed.

6. The Secretary of State for the Home Department appeals on the following grounds:

i) The Judge bases his positive finding as to domestic violence on the evidence of Mrs Jervis and Mrs Hall but fails to set out what their qualifications were, what their evidence was, or why it should be afforded any weight;

ii) There were no reasons given for the finding that the Respondent was estranged from her family;

iii) Failure to evaluate internal flight on the particular facts of the case.

My Findings

7. I am not satisfied that there was any error in the determination setting out the evidence of Mrs Jervis and Mrs Hall in the way that it does. Although the Judge could have set it out in greater detail the documents which he refers to were available to both parties (although not, perhaps, Mr Tufan when he drafted the grounds) and so the reasoning is readily understandable. In a letter dated 5th October 2015 Mrs Jervis confirms that she has worked very closely with this family since February 2015 and that she has personally made referrals to other agencies in respect of the children's social care and the Respondent's mental health. She writes that the children, although generally withdrawn and quiet, have made disclosures to her about their experiences in Pakistan. They are very worried about their mother and each of them is taking on a caring role for her. They were referred to Gillian Hall because of the domestic abuse that they have been subjected to. Mrs Jervis also writes that she supported the Respondent in attending A&E when she had expressed an intention to take her own life. In an addendum dated 12th February 2016 Mrs Jervis adds that the children are now very settled at school and are a pleasure to teach. The two younger children have continued to express concerns about what might happen if their father and his family should find them. The report from Gillian Hall dated 11th January 2016 is expressed in similar terms. She has been providing them with one-to-one counselling since October 2015. It was this evidence which led the Tribunal to conclude, at paragraph 49:

"[the children] have each received specialist counselling and independently revealed that they have 'real and current fears that their father or their father's brother may kill them should the family return to Pakistan'"

8. I find that the reasoning is clear. The Respondent may have been an unreliable witness about a great many things, but about the violence she claims to have experienced at the hands of her husband in Pakistan, there is significant independent corroboration from her children, who have made their own disclosures to professionals in the United Kingdom. As to the expertise and objectivity of Mrs Jervis and Mrs Hall, it does not appear that either was put in issue by the Home Office Presenting Officer with conduct of the case before the First-tier Tribunal. That being the case the Secretary of State cannot now reasonably criticise the Tribunal for apparently accepting it. In any event the author of the grounds does not advance any reason why the evidence of these professionals should be doubted.

9. As to the general approach to the evidence, it would appear to be the Secretary of State's case that the Tribunal was not logically entitled to accept any part of the account, where it had already rejected so much. That is not a sustainable argument. It is plainly open to the Tribunal to reject an appellant's evidence about certain matters, whilst placing reliance on others: see for instance Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11. These were paradigm Karanakaran findings. As the determination states at paragraph 50:

"Fundamentally I find that the basis of the appellant's claim is true, but she has tried to unnecessarily strengthen and embellish her claim with additional information that I have found not to be true".

The Tribunal was, on the evidence before it, entitled to accept the account of domestic violence in Pakistan, and indeed the claim that the Respondent was estranged from her family, as it does at paragraph 53 and 56.

10. As to the question of internal flight, again this was a finding open to the Tribunal. True, the fact that the Respondent is "relatively well educated" does not feature in the analysis, but it is difficult to see how such an education (she continued a year past matric) could possibly be of any significant assistance given that she would be a lone female victim of domestic violence with no money, no connections, no support and three children. That two of those children are older boys - and so would be denied entrance to a Dar ul-Amaan with their mother - was a factor of some significance as far as the First-tier Tribunal was concerned. That is reasoning that I would endorse. It appears to me on those facts it clearly would be unduly harsh to expect the Respondent to try and internally relocate.

Decisions

11. The decision of the First-tier Tribunal contains no material error of law and it is upheld.

12. There is a direction for anonymity.

Upper Tribunal Judge Bruce
6th December 2016