Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/01418/2016
PA/01419/2016, PA/01420/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 November 2016
On 16 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SA
UB
FB
(ANONYMITY DIRECTION made)
Respondents

Representation:
For the Appellant: Ms Z Ahmed, Home Office Presenting Officer
For the Respondents: Mr G Lee, Counsel

DECISION AND REASONS
1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Hendry) allowing an appeal by the respondents against the decisions made on 29 January 2016 refusing the applicant's claims for asylum and giving notice of their liability to removal. In this decision I will refer to the parties as they were before the First-tier Tribunal, the Secretary of State as the respondent and the applicants as the appellants.
Background
2. The first appellant is a citizen of Pakistan born on 5 September 1982 ("the appellant"). The second appellant is her son born on 5 May 2011 and the third her daughter born on 9 May 2013, both citizens of Pakistan and dependent on the appellant's application.
3. The appellant was born in Faisalabad in Pakistan on 5 September 1982 and is a Sunni Muslim. She lived with her parents and three brothers and two sisters. On 9 February 2008 she married her maternal cousin. He had travelled to the UK in 2004 with a Tier 1 (General) visa due to expire in July 2015. He returned to Pakistan for the wedding and then came back to the UK. In February 2009 the appellant applied for a visa as the spouse of a settled person but this was refused. On 23 December 2010 she applied as a Tier 1 Dependant and a visa was granted valid until 24 January 2013, subsequently being extended to 18 July 2015. She entered the UK on 1 June 2010 using her own passport. On 19 November 2015 she applied for asylum.
4. The basis of her claim can briefly be summarised as follows. When a child she was engaged to her paternal cousin, GA, by an agreement reached between her father and his sister, GA's mother. The family was conservative and girls and boys were not allowed to meet or form their own relationships. The appellant described GA as a very conservative and severe man who was not well-educated and his religious views were strict. In 1997 she formed a friendship with MB, her maternal cousin, finding him very different from GA. Their relationship became closer but was kept secret from their family. MB finished his degree and went to live in Lahore and they kept in touch by telephone. By this stage the appellant could not contemplate marrying anyone else. MB went to the UK to undertake further studies in 2004 but they kept in touch by telephone.
5. There came a stage when her mother found out that she and MB were speaking on the phone and the appellant told her that she did not like the man she was engaged to. Her mother was unhappy to start with but she was insistent and persuaded her mother to support her. Her mother was scared of her father and her sons but consulted her eldest son who was angry and upset at first but, when she was adamant she would only marry MB, he agreed to the marriage reluctantly. MB spoke to his parents and it was agreed that they should marry. His family was happy about the marriage, supported her and arranged it but neither the appellant's father nor her other two brothers were aware that it was taking place. MB returned from the UK for the marriage in February 2008.
6. The appellant continued living at home after the wedding for about twelve to eighteen months and was able to join her husband in the UK on 1 June 2010 after she obtained the appropriate visa. She had misled her father and brothers by telling them that she was going to stay with her aunt but in fact she travelled to the UK. Subsequently, her father starting asking questions about her and her mother had to explain what had happened. There was then trouble from her father who threatened to kill her because she had deceived him and her two younger brothers and her father saw her as having brought humiliation on them and the family. Her cousin GA phoned and threatened to kill her. He also visited her family home making threats directed at her. Her two brothers were unable to accept that she had married through her own choice. Her mother died in October 2012. The appellant described her as her only real support in the actions she had taken and that it seemed likely that the trouble caused by her marrying outside the family choice for her had contributed to her mother's death.
7. Before her father died in August 2015 the appellant had spoken to him on the phone and he had warned her not to return. After his death her brothers called her to say that she was to blame for what had happened and if she returned to Pakistan they would kill her. She had initially been supported by her eldest brother but he was upset following the death of their father and now she had no protection from him. It was her case that honour killings were common in Pakistan and the authorities had failed to take effective measures to end this practice. She has large extended family in Pakistan but would have no safe family home there and would be forced to live in hiding if returned and would be destitute. Her husband had completed ten years in the United Kingdom by 2014 and had applied for indefinite leave to remain but because of a problem about payments to HMRC, his application had been refused and an appeal dismissed.
8. The respondent accepted that the appellant's identity and nationality were as claimed but for the reasons set out in the decision letter of 29 January 2016 she was not satisfied that the appellant had been threatened as a result of marrying her husband. In the alternative, it was the respondent's view that there would be a sufficiency of protection on return to Pakistan and if there was any risk in the appellant's home area, she could relocate internally and it would not be unduly harsh to expect her to do so. The respondent also considered the application under article 8 but was not satisfied that the appellants could meet the requirements of the rules or that there were exceptional circumstances justifying a decision outside the rules.
The Hearing Before the First-tier Tribunal
9. At the hearing before the First-tier Tribunal the appellant and her husband gave oral evidence and submitted documentary evidence including news reports about recent honour crimes in Pakistan. They also submitted medical evidence about their son who had been undergoing medical treatment after suffering a brain haemorrhage.
10. The judge accepted that the centrepiece of the appellant's account was credible and that she was afraid of returning to Pakistan because she feared persecution or potentially being killed her brothers or GA. She also feared for the safety of her children. The judge found it significant that she had not, despite technically being able to do so, attended the funeral of either parent and accepted that she was clearly distressed not having done so but had felt that she could not return to Pakistan and that she had been told by her father on several occasions not to do so.
11. The judge said he had to determine whether the appellant's fear was well-founded. He described the background evidence as comprehensive. The Home Office's own Country Information and Guidance quoted extensively from reports which demonstrated that honour crimes in Pakistan were relatively common and the reported incidents did not present a true picture of the problem. The reports also demonstrated that the authorities were unlikely to support people subject to honour crimes, arrests were not universal and the penalties, if any, were likely to be light. Such actions were more likely to occur in rural areas but urban areas were also affected and there were examples of such crimes in urban areas such a Lahore, a city not far from Faisalabad [99]. On the issue of relocation the judge referred to the guidance in KA and Others (Domestic Violence - Risk on Return) Pakistan CG [2010] UKUT 216 that each case had to be considered on its own facts, noting that that case related to domestic violence not directly to honour killings.
12. The judge found that the background evidence indicated that it might be possible for a person to relocate where a fear of persecution was at the hands of non-state actors. The appellant considered that her brothers and GA would track her down even in another area of Pakistan. The judge said there was no clear evidence to this effect but neither she nor her husband had other relatives elsewhere in Pakistan and their only family support was in the area around Faisalabad. The appellant feared that they would track her down because of the support the authorities gave to men trying to find a woman in her position. She and her husband had no financial resources and some vulnerability because of the second appellant's medical circumstances. The judge found, taking account of the standard of proof in such cases, that in all the circumstances the appellants were unable to relocate internally in Pakistan. For these reasons the appeal was allowed on both asylum and humanitarian protection grounds.
The Grounds and Submissions
13. The respondent's grounds raise three issues. Firstly, it is argued that despite referring to the relevant passage in KA the judge had failed to take into account headnote 4 that whether a woman on return faced a real risk of an honour killing would depend on the particular circumstances; however, in general such a risk was likely to be confined to tribal areas such as the Northwest Frontier Province and was unlikely to impact on married women. Secondly, it argued that the judge erred in his consideration of sufficiency of protection as there was a general sufficiency of protection in Pakistan according to AW (sufficiency of protection) Pakistan [2011] UKUT 31. It was not disputed that single women and victims of domestic violence may not be able to obtain adequate protection from the authorities but the judge had not adequately explained why the appellant, married with children, could not obtain protection. Thirdly, the grounds argue that there was a lack of adequate reasons relating to the finding on internal flight, the grounds commenting that it was somewhat surprising that the appellant and her husband could not relocate. The test in relation to internal relocation was whether it would be unduly harsh. It might well be the case that the family would struggle without family support and immediate employment but the appellant and her husband were resourceful and educated and could potentially receive financial assistance from the husband's family.
14. Permission to appeal was granted by the First-tier Tribunal on the basis that it was arguable that adequate reasons had not been given to explain why the appellant and her family which would include her husband could not relocate and why the fact that neither the appellant nor her husband had family members other than in Faisalabad would prevent them from building a life elsewhere when they were clearly educated. So far as the other grounds were concerned, it was arguable that the judge had not provided adequate reasons why the appellant was at risk or why, as a married woman, she could not obtain protection from the authorities. It was also arguable that it was not clear which part of the background evidence led the judge to go behind the guidance in KA and that it was therefore just arguable that adequate reasons had not been given for the finding that the appellant would be the subject of an honour killing and it was also not clear what the judge's reasons were for finding that the appellant and her family would not be afforded sufficiency of protection.
15. Ms Ahmed adopted the grounds arguing that, when considering the risk of an honour killing, the judge had failed to take into account that the appellant was married and had a male protector in her husband. Similarly, in respect of sufficiency of protection she had a male partner and it was difficult to see how the judge had reached his decision. She submitted that he had made very limited and vague findings of fact. There had been no adequate evidence to show that her brothers could track her down. The appellant had a male guardian and this was a significant consideration when considering whether she would be at risk. So far as internal relocation was concerned, the judge had failed to give adequate reasons for his decision.
16. Mr Lee submitted that the judge's decision was sustainable. It was clear that the decisions referred to were giving general guidance. An assessment of risk was dependent on the particular circumstances of each applicant and the appellant's circumstances in this case did not fit directly with the position in either KA or AW. The judge had found that the appellant was at risk from her brothers and her cousin GA. He had posed the correct questions and reached answers properly open to him. His findings on the nature of the risk and the lack of protection could not be regarded as irrational. When considering the question of internal flight the judge had listed a number of relevant matters in [101] and the clear inference was that he had found that relocation was not possible but the facts were such that it would in any event be unduly harsh.
Assessment of the Issues
17. I must assess whether the judge erred in law such that the decision should be set aside. There has been no challenge to the judge's acceptance that the core or centrepiece of the appellant's evidence was credible or to the finding that the appellant was afraid of returning to Pakistan because she feared serious harm from and potentially being killed by either her two younger brothers or GA. The first challenge to the judge's decision is that he erred in his assessment of whether there was a real risk of an honour killing and reliance is placed on the country guidance summarised in headnote (iv) in KA. The judge was clearly aware of that decision as he referred to it at [88] and in his conclusions at [100]. Having found that there was subjective fear, the judge properly identified that he had to determine whether the fear was well-founded.
18. At [99] he referred to the comprehensive background evidence which he had summarised at [75] - [86]. At [80] he referred to a Reuters Report of 17 February 2014 that around a 1,000 cases of honour killings per year were tracked from media reports by the Aurat Foundation although the true figure was thought to be much higher. It was also reported that many killings were thought to be disguised as accidents or not reported at all. At [81] the UN High Commissioner for Human Rights in May 2014 said that 869 women were murdered in honour killings in 2013 but again the real figure was thought to be much higher and that it was unacceptable that perpetrators were rarely prosecuted.
19. I am satisfied that in the light of that evidence the judge was entitled to reach a finding that in the particular circumstances of the appellant her fears were well-founded. Paragraph (iv) of the headnote in KA relied in the grounds itself makes clear that whether an applicant faces a risk of honour killing will depend on the particular circumstances and that "in general" such risk is likely to be confined to tribal areas and is "unlikely" to impact on married women. The guidance is necessarily a generalisation. It was for the judge to decide on the evidence before him whether the appellant in her particular circumstances had such a well-founded fear. Having cited in his decision the passage relied on by the respondent in the grounds, I am satisfied that the judge had that guidance in mind when reaching his decision and that the finding on whether the appellant's fear was well founded was properly open to him for the reasons he gave.
20. The second argument is the judge erred in his assessment of sufficiency of protection and in particular by not adequately explaining why the appellant as a married woman with children could not obtain protection. The judge dealt with this issue succinctly but adequately in [99] when he said that the background reports demonstrated that the authorities were unlikely to support people subject to honour crimes, that arrests were not universal and the penalties if any were likely to be light. He also said that, although such actions were more likely to occur in rural areas, urban areas were also affected and there were examples of crimes in urban areas such as Lahore, a city not far from Faisalabad. The judge's conclusion must be read in the context of the evidence as a whole and in particular the background evidence.
21. The respondent relies on AW but this is not a country guidance case and the italicised headnote sets out the general principles which are not in dispute but in the context of the present appeal it must be noted that the documents relied on by that Tribunal cover the period 16 April 1999 to 28 July 2009 whereas the judge in this appeal had up-to-date background evidence before him. I am satisfied that it was open to him to find that so far as the appellant was concerned there would not be a sufficiency of protection. In [82] he referred to guidance addressing the issue of love marriages that arranged marriages were the traditional norm across Pakistan and love marriages which transgressed family expectations could result in significant pressure and violent reprisals which could affect men as well as women. The fact that a woman is married does not without more indicate that a husband is able to protect his wife when the authorities are unable or unwilling to do so.
22. The third ground challenges the judge's findings in relation to internal relocation making the point that there was no clear evidence that the appellant's brothers could track her down in other parts of the country and that the test was one of undue harshness. Internal relocation raises two issues: firstly, whether there is an area where the appellants can relocate in safety and secondly, whether it would be unduly harsh to expect them to do so. An initial reading of [101] might suggest that the judge has conflated these issues but I am not satisfied that this is the case.
23. The judge accepted that the appellant would be at real risk from her brothers and GA and the appellant feared that she would spend her life in hiding if returned to Pakistan and would be unable to live openly with her children. He said that there was no clear evidence to this effect but on the other hand neither she nor her husband had any relatives elsewhere in Pakistan and their only family support was in the area around Faisalabad. He also accepted that the appellant and her husband had no financial resources and some vulnerability because of the second appellant's medical circumstances (referred to in more detail at [32]). I am satisfied that this is a case where the evidence was finely balanced on the issue of the safety of relocation elsewhere in Pakistan but that the judge, particularly bearing in mind that he was dealing with the safety not only of the appellant but of two young children, rightly gave the appellants the benefit of the lower standard of proof and was entitled to find that they were unable to relocate internally and, in these circumstances, he did not need to go on to consider the issue of undue harshness.
24. In summary, I am satisfied that when the decision is read as a whole the judge reached findings and conclusions properly open to him on the evidence. The grounds do not satisfy me that the judge erred in law.

Decision
25. The First-tier Tribunal did not err in law and its decision stands. The anonymity order made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Dated: 12 January 2017
Deputy Upper Tribunal Judge Latter