Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/11342/2014
AA/11404/2014
AA/11405/2014

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 21 September 2015
On 8 October 2015

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

GT
MF
GN
(anonymity direction made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: No Representative
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer

DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/2698 as amended) in order to protect the anonymity of the appellants who claim asylum and two of whom are children. This order prohibits the disclosure directly or indirectly (including by the parties) of the identity of any of the appellants. Any disclosure and breach of this order may amount to a contempt of court. This order shall remain in force unless revoked or varied by a Tribunal or court.
Introduction
2. The appellants are citizens of Pakistan who were born on 5 November 1973, 10 December 2005 and 10 September 2009 respectively. The first Appellant is the mother of the second and third appellants.
3. The appellants arrived in the United Kingdom on 2 July 2014 and were granted leave as visitors valid until 2 January 2015. On 20 August 2014, the first appellant applied for asylum with the second and third appellants as her dependants. The basis of the first appellant's claim was that she was a victim of domestic violence by her husband. This had occurred before they had left Pakistan to come to the UK and a final incident, in her mother's home in the UK, on 4 or 5 August 2014 had resulted in the police being called. He had left before the police arrived and some ten days later he had called the appellant and threatened to harm her on return to Pakistan including threatening to throw acid in her face and take the children.
4. The appellant claimed asylum and a screening interview was held on 20 August 2014 and a full asylum interview on 25 November 2014. On 4 December 2014, the Secretary of State refused the appellant's claim for asylum and humanitarian protection and under Arts 2, 3 and 8 of the ECHR. On 5 December 2014, the Secretary of State made a decisions refusing to vary the leave of each appellant and also made decisions to remove each of them to Pakistan by way of directions under s.47 of the Immigration, Asylum and Nationality Act 2006.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal. Her appeal was heard by Judge Suffield-Thompson on 31 March 2015. At that hearing, in addition to the documentary evidence, the judge heard oral evidence from the appellant, the appellant's mother and the appellant's sister. In her determination promulgated on 7 April 2015, Judge Suffield-Thompson dismissed each of the appellants' appeals. First, she rejected the first appellant's account that she was a victim of domestic violence. Secondly, in any event, she concluded that the first appellant could safely and reasonably internally relocate within Pakistan. Thirdly, she dismissed the appeal under Art 8.
The Appeal to the Upper Tribunal
6. The appellants sought permission to appeal to the Upper Tribunal. The grounds are somewhat discursive. First, they argue that the judge erred in law in reaching her adverse credibility finding. Secondly, they argue that the judge erred in law in concluding that internal relocation was a possibility. Thirdly, they argue that the judge failed to have regard to the second and third appellants' best interests and s.55 of the Borders, Citizenship and Immigration Act 2009.
7. On 12 May 2015, the First-tier Tribunal (Judge Cruthers) granted the appellants permission to appeal. Principally, he granted permission on the basis that the judge had arguably failed to consider the best interests of the second and third appellants. His reasons were as follows:
"3. Unfortunately, the 6 pages of grounds on which the appellant seek permission to appeal takes a scatter-gun approach (rather than focussing on allegedly significant alleged errors of law). Without restricting this grant, I record my suspicion that there is little substance in the vast majority of the complaints made in the grounds. But it may be that the judge did err in some of the ways alleged.
4. In particular, the judge's treatment of article 8 of the European Convention on Human Rights seems confined to the last sentence in her paragraph 57. I therefore consider it arguable, as per paragraph 2 of the grounds, that the judge has failed to sufficiently factor in the best interests of the two minor appellants (ie the second and third appellants - the children of the first appellant).
5. The appellants should not take this grant of permission as any indication that the appeals will ultimately be successful. I suspect that even with the operation of section 55 of the Borders, Citizenship and Immigration Act 2009, this is the sort of case that is unlikely to succeed by reference to article 8. But because I cannot be sufficiently confident of that, it is appropriate to grant permission at this stage."
8. On 4 June 2015, the respondent filed a Rule 24 notice opposing the appellants' appeals stating that:
"In summary, the respondent will submit inter alia that the Judge of the First-tier Tribunal directed himself (sic) appropriately. The Secretary of State considers that the grounds are in reality a disagreement with the findings of the judge. He (sic) did not find the appellant credible and gave clear and sound reasons for that conclusion. His (sic) other findings must be viewed in that light."
9. Thus, the appeal was listed for hearing on 21 September 2015 before me.
The Hearing
10. Prior to the date of hearing, on 17 September 2015, the first appellant (in person) made a paper application to adjourn the hearing on the basis that her representative was unable to prepare for the hearing and represent her.
11. On 18 September 2015, a Judge of the Upper Tribunal refused that application on the basis that there was no reason to believe that the first appellant had not had sufficient time to consult with her representative.
12. On 18 September 2015, the appellants' representative, Bukhari Chambers faxed to the Tribunal a letter indicating that they were no longer instructed to represent the appellant and that the appellant intended to attend court and represent herself.
13. At the hearing, the appellant was not represented. No further application for an adjournment was made.
14. The first appellant indicated that she was happy to continue without an interpreter at the hearing and it was clear as the hearing progressed that the appellant spoke and understood English. She was, however, assisted by her sister who sat with her and, at times, aided the first appellant. I explained to the first appellant the purpose of the hearing which was to identify whether the First-tier Tribunal's decision to dismiss the appellants' appeals involved the making of an error of law and should be set aside. The purpose of the hearing was not to reconsider the merits of the first appellant's claim.
15. In the circumstances, I indicated that it might be helpful if the Home Office Presenting Officer, Mr Diwnycz made his submissions first and then the first appellant responded. With the agreement of the first appellant, the hearing proceeded in that way.
Discussion
16. The appellants' first challenge is to the judge's adverse credibility finding, namely that she did not accept that the first appellant had been a victim of domestic violence.
17. The first appellant claimed that she had been a victim of abuse from both her husband and mother-in-law over a long period of time. She claimed that she had only had the courage to do something about it when she came to the UK in 2014 on a family visit with her two children and husband.
18. In her determination, Judge Suffield-Thompson set out at length the first appellant's case and the written and oral evidence from the first appellant, her mother and her sister given at the hearing.
19. At para 37, the judge noted the absence of any supporting evidence concerning the incidents or injuries she claimed:
"37. This is not a case where the Appellant left Pakistan fearing for her life. She came on a planned visit with her husband and then stayed with her mother once her husband had left. Despite the fact that the Appellant claimed asylum in this measured way she has not produced any supporting documentary evidence, in particular medical, about her marriage. There is no letter from Mrs. Osmani who, she states, she very close too and who knew of the abuse. There are no medical notes relating to the alleged miscarriage where she states that her husband kicked her. The Appellant has had sufficient time to contact her doctor and ask for these notes to be sent over to the UK. Again she alleges she has been burnt by her husband but there is nothing from a doctor to corroborate her scarring from this incident. Both of these documents I find would be accessible to the Appellant and would have been easy to obtain for the hearing. The Appellant states that she took her son to hospital after the cricket bat attack on her by her husband and yet there are no records before me about the child's head injury."
20. The grounds argue that the judge, in taking the absence of supporting evidence into account, failed to have regard to the fact that the first appellant came to the UK not in order to claim asylum and so did not come, so to speak, equipped with the documents. The point made by the judge, however, remained open to her, namely that, despite the time that the first appellant has been in the UK, she has not sought to obtain any supporting documents including supporting medical evidence in the UK of her injuries. As the Court of Appeal observed in TK (Burundi) v SSHD [2009] EWCA Civ 40 at [20] in the absence of a credible explanation - and there was none here - the failure to produce that supporting evidence is a relevant factor in assessing credibility.
21. Returning now to the judge's reasoning, at the hearing the first appellant relied upon two incidents of claimed abuse by her husband - one where he had made her take her clothes off and humiliated her in front of her family and a second where, she claimed, he had raped her. Those matters had not been raised prior to the hearing at the screening interview, in the asylum interview or indeed in the appellant's witness statement prepared for the hearing.
22. At paras 38-41 the judge dealt with the first appellant's failure to mention either of these incidents prior to the hearing as follows:
"38. The Appellant was interviewed by a female member of Home Office staff on the 25 November 2014. By her account the last time she saw her husband was 4 August 2014. This means that over 3 months had passed between then and the interview. The Appellant knew that she was safe in the UK with her family and that the interview was her chance to tell the Home Office why she was seeking Asylum. This Appellant is an educated woman with a degree in Psychology and I find this to be significant. I find that she would have been aware of the importance of this interview and the account that she gave. She was sufficiently prepared for the interview in that she took with her a letter of support from her mother and the police report reference number from the incident at her mother's house.
39. The Appellant told the interviewer that she had been subjected to abuse by her husband many times in her home country. (Q7). She recounted that he had another woman in his life and that he was a landowner with a lot of connections (Q47). She stated that he was a heavy drinker (Q.54). He would abuse her, pull her hair and hit her on the head with shoes (Q 55). She stated that he kicked her in the stomach whilst she was pregnant causing her to miscarry. She told the officer that he had, on one occasion, burnt her on the chest area with a cigarette.
40. The Appellant stated in her evidence that she had not told the officer about other things because she was too ashamed. I do not find this credible. Had the Appellant said nothing at all to the interviewing officer then that would be different. However the Appellant has told the interviewing officer all manner of abuse that her husband meted out to her and yet she did not tell her about being locked out naked and being raped. I do not find it credible that the Appellant would have left this out of her interview had they really happened.
41. It is only in the hearing that she has told the Tribunal of this other conduct. She had not even told her Solicitor. As an intelligent woman she would have known that this was significant evidence that her lawyer would have wanted to hear. I find that her conduct at the interview, her with-holding things from her solicitor and then her oral evidence significant in assessing her credibility."
23. The grounds argue that the judge failed to take into account that the first appellant might not feel able to disclose this abuse earlier. In fact, as is clear from the judge's reasoning, she did take that argument fully into account. She noted that the first appellant had been interviewed by a female member of the Home Office staff and had given a detailed account of abuse and had not even told her legal representative of the two incidents of her being locked out naked and being raped. The judge also noted that the first appellant is "an educated woman with a degree in psychology". This was a matter which the judge was entitled to take into account in assessing whether the appellant had a good explanation for why she had not referred to the two incidents prior to the hearing.
24. The assessment of the first appellant's evidence and her explanation was primarily a matter for the judge. At para 44, the judge, having the benefit of hearing the first appellant give evidence, made the following observation:
"44. At the start of the hearing the Appellant's lawyer asked her if her statement covered all she wanted to say. She was very forthright and adamant that here were things she had to say and that she was going to say them whatever her lawyer wanted. She said a very similar thing at the Home Office interview (Q80). I do not find this behaviour consistent with a person who says she is too frightened to make certain disclosures to strangers. In two formal and authoritarian settings the Appellant made it clear that she had an agenda and it was going to be followed."
25. Clearly the judge was alive to the first appellant's claimed history of domestic violence and her explanation of why she did not disclose the two incidents prior to the hearing. However, the judge also clearly took the view, having heard the first appellant give evidence, that she did not accept that explanation. I am unable to say that that is a conclusion which the judge was not entitled in law to reach. As I have said, the assessment of the evidence - in particular the oral evidence of a witness - is primarily a matter for the first instance judge. It was not irrational, in my judgment for the judge to take into account as a factor adverse to the first appellant's credibility that she had only raised these two particular incidents of claimed domestic abuse at the hearing itself.
26. Turning again to the judge's reasoning in reaching her adverse credibility finding at para 42, the judge turned to the incident which the first appellant had claimed had occurred in her mother's house on 4 or 5 August 2014. The judge found, as damaging of her credibility, her account that her husband had left her mother's house after the police were called simply by grabbing a bag with all his unpacked clothes and belongings which had been there for nearly a month. The judge said this:
"42. I turn now to the night of the incident at the Appellant's mother's house. The Appellant stated that her husband grabbed a bag and ran out. This bag just so happened to contain his clothes, passport and his ticket back to Pakistan. I do not find this credible. They had been staying with the mother for nearly a month. They had travelled as a family so I question why their tickets and passports would not all be kept together. Why the Appellant's husband or the Appellant would not have unpacked his clothes and hung them up or placed them somewhere for nearly a month. It makes little sense that there just happened to be a bag packed, to hand, with everything he needed in it to leave the UK. It is entirely possible that this has been a fabrication involving the husband and that he is still here in the UK (as there is no Home Office record of him leaving the UK) with the family planning to come and live here with the rest of the Appellant's immediate family."
27. Then at para 43, the judge added:
"The Appellant says her husband is back in Pakistan. She has produced no evidence of this and the British authorities have checked and there is no record of him having left the UK. I find it highly probable that he is in the UK."
28. The grounds argue that the judge's conclusion is an assumption not based upon any evidence. It is argued that the Secretary of State has "the mechanism in place" to provide the information as to whether the appellant's husband is or is not in the UK. In my judgment, this ground is wholly unsustainable. It was properly open to the judge to take into account the implausibility that the first appellant's husband would leave "unpacked" his bag at the house of the first appellant's mother for almost a month after arriving in the UK. Further, as the judge made clear in para 43, checks had been made and there was no record of the appellant's husband having left the UK. That was evidence upon which the judge was entitled to find that the first appellant's husband was, probably still in the UK and not as she claimed back in Pakistan.
29. Turning once more to the judge's reasoning, at para 45 the judge took into account in assessing the first appellant's claim and, in particular, whether she had any relatives in Pakistan evidence that the appellant's mother had sponsored a person, who was a relative, in the past. The judge said this:
"45. The Appellant, her mother and sister were all asked about relatives in Pakistan and stated they had none at all. The Representative for the Respondent produced a visa application form made for an individual named MI. The Sponsor's name was that of the Appellant's mother and her home address also appeared on the form. It was stated that it was not her phone number. All the women denied any knowledge of this person or his application. I did not find this to be credible. I find that this was a member of the Appellant's family and that her mother had sponsored him to come to the UK. The fact that they all denied this has a significant impact on my assessment of their credibility as witnesses of truth. It is clear that they wanted the court to find they have no other relatives in Pakistan."
Then at para 46 the judge dealt with the evidence of the first appellant's mother given at the hearing and the manner in which it was given as follows:
"46. When the mother gave here evidence she was asked if she had seen the Appellant in Pakistan. She said that she had seen the Appellant in Pakistan on one occasion and then she began to expand her answer saying that the Appellant told her how happy she was in her life and her marriage. The Appellant's representative jumped in at that point and asked her to stick to the questions asked. I find this was an important intervention of (sic) the part of the representative."
30. At the hearing, the first appellant claimed, as did her mother, that she had no idea what that application related to. In effect, the claim was that the application was made without the knowledge of the first appellant's mother and had nothing to do with her. The fact remains, however, that that application properly identified the first appellant's mother as the sponsor. In her submissions before me, the first appellant told me that she had made a specific complaint to the Home Office that the earlier application amounted to an immigration crime. She was unable to provide the email in which she had made this complaint but she did produce a response dated 20 May 2015 from "Immigration Enforcement" confirming that she had provided on 25 April 2015 information concerning a suspected immigration crime. However, the email continues that: "We have investigated the information you provided but we have not been able to take any further action on it at this time."
31. This information was, of course, not available to the judge since the complaint was made subsequent to the hearing which was on 31 March 2015. In any event, the fact that the first appellant made that complaint which was, in the circumstances, not proceeded with by the Home Office would not make it irrational for the judge to conclude that, given that the name and home address of the appellant's mother was on the form, that the evidence that they had no knowledge of this person was not credible.
32. Finally at paras 47-48 drew together her reasons for disbelieving the first appellant's account of domestic violence as follows:
"47. Finally I turn to the Appellants education. I do not find this to be of significance. The Appellant's representative said it makes no difference if you are educated or not. You can still be a victim of domestic violence and you can still return to Pakistan and be at risk. In a general sense he is of course right but I find that this Appellant is in a different situation. Firstly as I have already stated I do not find it credible that she withheld two significant instances' of abuse back in her asylum claim and then suddenly disclosed them to the Tribunal. Also the Appellant studied Psychology and as part of that she would be well aware of issues surrounding domestic violence and how abuse psychologically affects individuals. I find that the Appellant has used her education to create a false asylum claim which, at the last minute, she sought to bolster by adding in the allegations of rape and being locked outside, naked.
48. It was clear that the Appellant has no desire for her children to be brought up in Pakistan. She became very forceful and agitated when asked about her childrens' future in Pakistan saying that her son would grow up in the same way as his father and that her daughter would have no life or future at all as a woman in Pakistan and that even if she were working she would just be 'married off to the same kind of man'. Although I can sympathise with the Appellant's desire for her children to grow up in a Western Society that is not a choice that is open for her, or indeed many others, to make. The Appellant has, within the last few years, been reunited with her blood family and they are now here in the UK. I find that the Appellant wishes to make a life here now to be with her family and that this is the motivation behind her claim for refugee status."
33. The grounds criticise the judge for taking into account the first appellant's education, in particular her psychology background. I have already touched upon this point earlier. It was a matter which clearly the judge was entitled to take into account. Contrary to what is said in the grounds and was repeated by the first appellant before me, the judge was not saying that an educated person could not be subject to domestic violence. Rather, the judge was assessing whether the first appellant's account of domestic violence, and the circumstances of her claim, chimed consistently with her educational background in particular her knowledge and understanding of psychology. I see nothing in the judge's reasoning that did not entitle her to reach the conclusion that the first appellant's account was not to be believed.
34. One matter arose at the hearing which was not directly raised in the grounds. That concerned a document which, at least on its face, appeared to relate to contact between the first appellant and police and the police in relation a domestic violence enquiry. Under the heading of "initial risk management and intervention", handwritten is the following: "Advised to lock the door and secure the house, contact police immediately if he returns."
35. The document is undated. It is said by the first appellant to be a document that was produced by the police following their visit to her mother's house on 4 or 5 August 2014 when she claims her husband abused her physically.
36. Mr Diwnycz accepted that this document had been submitted to the Home Office on 20 August 2014. There is no record of it in the Tribunal's file and it does not appear to have been placed before the judge at the hearing. Certainly, no reference is made to it by the judge.
37. It is not clear to me why this document was not placed before the judge. It was clearly relevant. However, it is undated and although it is, in general terms, consistent with the appellant's claim that her mother called the police on 4 or 5 August 2014 to her house because the first appellant was being abused, it provides no details of what the first appellant claims occurred. It was, however, a document which should have been placed before the judge in order for her to consider it as part of all the evidence. However, the failure was not, in my judgment, material to the judge's adverse credibility finding. Her reasons, which I have set out above, were cogent and wholly sustainable. I do not consider that even if the judge had considered this document her adverse finding would have been any different. For that reason, any procedural error was not material to the judge's finding that she did not accept that the first appellant was a victim of domestic violence.
38. In any event, the judge went on in her determination to find that the appellant could safely and reasonably internally relocate within Pakistan. She gave her reasons at paras 53-56 as follows:
"53. As I do not find that the Appellant is a victim of abuse there is no need for me to look at a detailed assessment of relocation or state protection. However I make the following observations. It may be that the Appellant's husband is still here and they will move back to Pakistan together. If the Appellant's husband has left her then the Appellant will have to return to Pakistan with her children. There are may NGO's in Pakistan that I find would help the Appellant on her return. It states n the case of FS (domestic violence) that although these services were not as many as one would wish for 'it cannot be said that women returning to Pakistan who seek access to such shelters would be at real risk of being denied assistance or of receiving ill-treatment'". On the basis of my earlier finding regarding the visa application for MI I find it likely that the Appellant does have other relatives in Pakistan who will assist her in rebuilding her life.
54. She is a bright and educated woman and she had a job as a researcher in a hospital so she would be able to find professional work and support her children in that way. I accept that the Appellant's husband is of some importance in the local area but if the Appellant wanted to make a new start in Pakistan it is a vast country with over 175 million people and there is no evidence that state agencies keep sophisticated data bases on their citizens. So the Appellant could move to another part of the country and build a new life there.
55. In the case of FM the Appellant was a woman of little education, no history of employment and away from her home area with no male support. The court found in this case that the Appellant and her children would face a degree of hardship but that they were all in good health, and had shown a degree of resourcefulness by leaving their home country and seeking asylum. I find that this Appellant has many more advantages than the Appellant in FM and that she will manage.
56. I do not seek to make light of the difficulties that the Appellant will face as I am sure there will be some but the background information makes it clear that in the big cities there are many lone women who successfully work and bring up their children and she will not be subject to the same level of scrutiny as she would be if she moved back home or to a rural area."
39. The reference to the case of FM in paragraph 55 of the determination is clearly a reference to FS (Domestic violence - SN and HM - OGN) Pakistan CG [2006] UKAIT 000283. That decision was approved by the Upper Tribunal in KA and Others (Domestic violence - risk on return) Pakistan CG [2010] UKUT 216 (IAC). As the head note of KA and Others sets out the correct approach is:
"In assessing whether women victims of domestic violence have a viable internal relocation alternative, regard must be had not only to the availability of such shelters/centres but also to the situation women will face after they leave such centres."
40. In her determination, despite stating that it was not necessary to make a detailed assessment, the judge in effect did precisely that. She considered that the first appellant had the advantage of being an educated woman, with a professional background and the ability to support her children. That was a finding the judge was fully entitled to make on the evidence. Further, the judge noted that Pakistan was a "vast country with over 175 million people", it was properly open to the judge to find that the appellant could safely relocate within Pakistan without coming to the attention of her husband or, indeed, his family. In my judgment, Judge Suffield-Thompson approached the issue of internal relocation in accordance with the leading cases, most recently KA and Others. She considered fully the first appellant's circumstances and was entitled to conclude that, despite difficulties, it was not unreasonable for the first appellant with her two children to live elsewhere in Pakistan away from her home area where she would not be at risk from her husband or his family. Consequently, the first appellant also failed to establish her claim - even if her account were accepted - on the basis that she could internally relocate within Pakistan.
41. For these reasons, the First-tier Tribunal did not materially err in law in dismissing the appellants' appeals on asylum and humanitarian protection grounds and under Arts 2 and 3 of the ECHR.
42. I now turn to consider the final issue raised in the grounds, namely that the judge failed to consider the "best interests" of the second and third appellants.
43. Mr Diwnycz acknowledged that the judge had only very briefly dealt with Art 8 in para 57. There she said this:
"I find there is nothing exceptional in this appeal for me to consider the case outside the Rules and therefore Article 8 of the ECHR does not apply."
44. I accept that this is not a wholly adequate consideration of Art 8. However, I do not consider it to be a material error. The appellants had no claim under the Rules and the judge was required to assess whether there were "compelling" circumstances so as to justify a grant of leave outside the Rules (see Singh and Khalid v SSHD [2015] EWCA Civ 74). As part of that assessment, a "primary" consideration was the "best interests" of the second and third appellants. The judge failed to consider those circumstances and made no reference to the best interests of the second and third appellants. That was, in my view, also an error.
45. However, the Upper Tribunal will only set aside an adverse decision if there is a realistic prospect that a favourable decision could be reached. In my judgment, the appellant had no prospect of succeeding under Art 8. The appellants had only been in the UK since July 2014. That was less than twelve months at the date of the hearing. The second and third appellants were 10 and 5 years old at the date of the hearing. They are now aged 10 and 6 years old. Whilst they live in the UK with both their mother and immediate family, there was no evidence before the judge that it was not in their best interests to return to Pakistan with their mother. There was no evidence that their educational prospects would suffer or that there would be any other significant detriment to them. The judge, of course, had rejected the first appellant's claim to be subject to domestic violence. In those circumstances, despite the family links in the UK, there was no basis upon which the judge could have found that there were "compelling" circumstances to justify the grant of leave to each of the appellants outside the Rules. Their appeals under Art 8 were inevitably, in my judgment, dismissed.
46. For that reason, no point would be served by setting aside the First-tier Tribunal's decision to dismiss their appeal under Art 8. Those decisions, therefore, stand.
Decision
47. The decision of the First-tier Tribunal to dismiss each of the appellants' appeals did not involve the making of a material error of law. Those decisions stand.
48. The appellants' appeals to the Upper Tribunal are, accordingly, dismissed.

Signed

A Grubb
Judge of the Upper Tribunal