The decision


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/13228/2010
AA/13229/2010, AA/13231/2010
AA/13235/2010, AA/13236/2010


Heard at Field House
Determination Promulgated
On 2 December 2013
On 23 December 2013





Fareena Waseem
Faiz Waseem
Fazeela Waseem
Faizan Waseem
Waseem Iqbal

For the Appellant: Mr G Saunders, a Senior Home Office Presenting Officer
For the Respondents: Mr Rana, instructed by Regents and Co Solicitors

1. The respondents are citizens of Pakistan. The first respondent is the wife of the fifth respondent and the second, third and fourth respondents are their children. I shall hereafter refer to the respondents as “the appellants” as they were before the First-tier Tribunal and to the Secretary of State as the “respondent.”
2. This appeal returns to the Upper Tribunal following a consent order made in the Court of Appeal on 1 March 2013. On 9 September 2010, the respondent refused the appellants asylum and, on 10 September 2010, made a decision to remove the appellants from the United Kingdom as illegal entrants. The appellants appealed against that decision to the First-tier Tribunal (Judge Otten) which, in a determination which was promulgated on 5 November 2010, allowed the appeals on asylum grounds. The respondent appealed to the Upper Tribunal and was granted permission by Judge McGeachy on 23 November 2010. Following a hearing at Field House on 10 October 2011, Upper Tribunal Judge Jarvis set aside the First-tier Tribunal’s determination and remade the decisions, dismissing the appeals on all grounds. The appellants appealed to the Court of Appeal and permission was granted by Sir Richard Buxton on 7 November 2012. A consent order of 1 March 2013 provided for the matter to be “remitted to the Upper Tribunal … for reconsideration (sic).” The annexed Statement of Reasons indicated that:
The respondent accepts that the appellants’ appeals should be remitted to the Upper Tribunal in light of the two errors of law that Lord Justice Buxton identified in his 5 November 2012 order, i.e. that (1) it was arguable that the First-tier Tribunal should not have been granted permission to appeal and (2) the Upper Tribunal on considering that appeal greatly extended the basis on which permission had been granted.
3. At the hearing before me at Field House on 2 December 2013 I was assisted by both advocates who agreed with me that the Upper Tribunal’s determination of Judge Jarvis had been set aside by the concerned order and that the Upper Tribunal was now to consider again whether there was an error of law in the determination of Judge Otten. Neither party sought to challenge the grant of permission of Judge McGeachy.
4. There were two grounds of appeal. The first reads as follows:
The Immigration Judge has, at paragraphs 79 and 80 of the determination, engaged in sure speculation (sic) as to the consequences of the fifth appellant trying to make contact with his father at some stage. …
5. Judge Otten found that the first and fifth appellants had married in December 1994. The marriage had been opposed by the parents of the couple. Despite protests by the first appellant, she had been compelled to live with her parents-in-law whilst the fifth appellant worked in Dubai. Judge Otten found that the first appellant had been ill-treated at that time. The first appellant feared that she would be killed and sold jewellery and stole money from her father-in-law in order to purchase tickets to fly to the United Kingdom. The fifth appellant came to the United Kingdom some time later than the other appellants.
6. Judge Otten at [71] found that the account provided by the first and fifth appellants was credible. At (f) Judge Otten found:
I do not find the first appellant said that her husband was unable to find the first appellant for four/five years after coming to the UK. She said a reconciliation took place ‘six months ago’ i.e. about March 2010. The oral evidence showed that they had met earlier, but she was still wary of him for having supported her father-in-law in the past.
7. In particular, the judge accepted the first appellant’s account of her ill-treatment at the hands of her parents-in-law and considered her stated fear of returning to Pakistan and being subjected to further ill-treatment to be a genuine fear. The judge was aware that the family could return to Pakistan and live away from the area in which the parents-in-law reside and that, were they to do so, there would be little risk that the parents-in-law would ever know that the family had returned. However, at [79-80], Judge Otten found:
[the first appellant] goes on to say that it is not known to what lengths the father-in-law will go to try to find them, but that a possible risk would be that the fifth appellant might decide to make contact with his own father at some point. I find this is a real risk that cannot be excluded. The likely consequences of such a step are difficult to gauge, but I consider they could be very serious for the first appellant at least.
The consequences will include at least a serious risk of assault or even death but are more likely to include a prosecution generated at his complaints which would delink her from her husband and children and make her vulnerable to violence which could go unpunished and from which she would have no protection. I therefore find that this is a very different scenario from that dealt with in KA & Others (domestic violence – risk of return) Pakistan CG [2010] 216 (IAC) because of the role that might be played by her husband. I also find that the first appellant would have no effective state protection.”
8. Mr Saunders, for the Secretary of State, agreed that it was possible that the fifth appellant would make contact with his parents upon return to Pakistan but he submitted that it was so unlikely, given the likely consequences to himself as well as the other appellants and that, in consequence, Judge Otten’s finding was irrational. The grounds (as I have quoted above) assert that the judge’s finding was “speculative”.
9. Whilst there is some force in Mr Saunders submission, the fact remains that Judge Otten has carried out a very detailed analysis of the evidence and also had the opportunity of hearing the first and fifth appellants give oral testimony. In addition, he had the benefit of an expert report of Dr Balzani and writes at [67]:
Dr Balzani notes [the first appellant’s] husband was content to leave his wife in a situation of domestic violence before. She stated it is unclear what pressures of returning to Pakistan might mean in terms of the fifth appellant’s options. She believes that the appellant might be at risk from her father-in-law because of the theft and she would find it difficult to access state protection if she feared possible criminalisation that might result from making her self known to the authorities.
10. The nature of the evidence before the judge and his findings on that evidence was touched on in the grant of permission to the Court of Appeal of Buxton LJ who wrote:
The grounds of appeal from the FTT complained only of ‘speculation’ in paragraphs 79-80 of the determination of the FTT. The FTT, having found the appellants credible (a matter to which I return under 2) held that what it had heard about the involvement and attitudes of the father-in-law and of the family dynamics between the wife and the husband, meant that there was a ‘real risk’ that the husband would contact his father and that that could lead to very serious consequences for the first applicant at least (and inferentially, though not stated, for the children). These were reasoned findings based on the evidence that the FTT had heard, properly expressed in terms of the level of risk sufficient to engage the asylum jurisdiction of the court. It is well recognised that in many the effect of return to the home country can only be gauged in terms of risk, not certainty; and unless that approach is also to be dismissed as speculation it is difficult to see how the FFT made an error of law in adopting it in this case.
11. I respectfully agree with Buxton LJ that Judge Otten had heard about the particular circumstances of this family and the “dynamics between the wife and the husband” and between that couple and the husband’s parents. It is difficult to characterise Judge Otten’s findings as “speculation.” He appears to have given some weight at [67] to the opinions of the expert, Dr Balzani and, in the passage at [71(f)] that I have quoted above, Judge Otten recorded that the first appellant is still wary of her husband “for having supported her father-in-law in the past”. It is to be recalled also that the fifth appellant appeared content to leave his wife with his parents even though he was aware that they opposed his marriage and were likely (as proved to be the case) to ill-treat the first appellant. It was against that background that Judge Otten has reached his finding that there was a real risk that, notwithstanding their reconciliation whilst in the United Kingdom, the fifth appellant may come under family or other pressure to reveal the whereabouts of the appellants to his parents. Because Judge Otten has based his findings upon the evidence of the witnesses and the expert report I do not believe that those findings may be described as speculation only and I see no reason to disturb them.
12. The second ground concerns the judge’s consideration of the country guidance case of KA. The grounds assert that there was “no basis … for the departures from [KA] because of the role that might be played by [the fifth appellant].” In general, KA concerns the risks facing single women [with or without young children] returning to Pakistan. As I have noted above [7] Judge Otten did not [as Judge McGeachy appeared to believe] completely ignore KA but sought to distinguish the country guidance because of the “different scenario” arising in the present appeal because of “the role that might be played by [the fifth appellant].” It would have been helpful if Judge Otten had expressed himself in greater detail but I believe it is clear that he found that there was a real risk that (i) the fifth appellant would, some time after returning to Pakistan, tell his parents that the family were in the country and (ii) the family’s hostility towards the first appellant would be such that they would make every effort to find her and (iii) thereafter ill-treat her. The relevance of KA in those circumstances with its emphasis on the difficulties faced by former victims of domestic violence cast adrift without male support is perhaps limited. Mr Saunders’ submission that the first appellant would be safe because she would have the protection of her husband appears to overlook the likelihood as found by Judge Otten that the husband would be unwilling or unable to protect the first appellant if his family sought to harm her. In the circumstances, I find that the particular findings of fact reached by Judge Otten properly enabled him to identify the presence of a real risk to the first appellant and possibly the children and to distinguish the guidance of KA accordingly. I do not doubt that another primary judicial fact finder may have come to a different conclusion but that is not the point. Judge Otten has made cogent findings of fact which is supported by adequate and clear reasoning with which I can identify no reason to interfere. I find that his assessment of risk in the light of those factual findings is also not flawed by error of law on this application of country guidance. I find that the Secretary of State’s appeal should be dismissed.
13. This appeal is dismissed.

Signed Date 16 December 2013

Upper Tribunal Judge Clive Lane