Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08230/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 December 2018
On 14 January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

SS (Pakistan)
(anonymity direction MADE)
Appellant
and

Secretary of state for the home department
Respondent

Representation:

For the Appellant: Ms S Iengar, Counsel instructed by SMA Solicitors
For the Respondent: Mr David Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals from the decision of the First-tier Tribunal (Judge Parkes sitting at Birmingham on 31 August 2018) dismissing her appeal against the refusal of her protection and human rights claims which she had brought on the basis that she faced a real risk of serious harm on return to Pakistan as a lone woman with a dependent child. The First-tier Tribunal made an anonymity direction in the appellant's favour, and I consider that it is appropriate that the appellant continues to enjoy anonymity for these proceedings in the Upper Tribunal.

Relevant Background Facts
2. The appellant is a national of Pakistan, whose date of birth is 18 November 1986. On 11 December 2013 the appellant married "MH", a Spanish national. The appellant came to the United Kingdom on 7 April 2016 on a valid visa to join MH in the UK.
3. As summarised in the decision letter of 10 August 2017, the appellant's case was that she stayed with MH for one week. He then left her at the home of a woman, "KB". MH would visit the appellant at KB's home on weekends only. She did not have sexual relations with her husband, but instead she began a relationship with a man named F, who was a friend of MH's and was also known to KB. F would visit her once or twice a week whilst KB was visiting her mother.
4. On 2 December 2016 MH came to KB's home unexpectedly. He found the appellant and F sitting in the same room on a bed. The appellant was wearing her head scarf. He asked her what F was doing in her room. She said nothing, but F said that they were in a relationship. There was a fight, following which MH divorced her on the spot and F ran away. She has not seen or heard from F since. At the time, the appellant was 7-8 months' pregnant.
5. MH knew that she was pregnant in July/August 2016 because she had told MH about her relationship with F, and he had said to her that the child must be from F (AIR Q128-129). Alternatively, MH did not know about her relationship with F until December 2016 when he found them together (AIR Q126).
6. The respondent rejected the appellant's asylum claim as her account was considered to be internally inconsistent, vague, evasive and incoherent. Accordingly, the respondent did not accept that her husband had left her, or that her family in Pakistan had threatened to kill her because she had had an extra-marital affair.
7. The appellant's appeal first came before Judge Juss sitting at Birmingham on 22 September 2017. In his subsequent decision, he gave his reasons for dismissing the appeal on the ground that the appellant was not credible. His decision was overturned on error of law grounds by Upper Tribunal Judge Rintoul in a decision promulgated on 19 April 2018. He remitted the appeal to the First-tier Tribunal for a fresh hearing on all issues.
The Hearing Before, and the Decision of, the First-tier Tribunal following Remittal
8. Both parties were legally represented before Judge Parkes. Ms Iengar of Counsel appeared on behalf of the appellant.
9. In his subsequent decision, Judge Parkes set out the background at paragraphs [7]-[10]. He summarised the appellant's case as follows: "As an unmarried mother without male support, the appellant's case is that she cannot return to Pakistan where, in addition to the problems that single mothers in her situation face, her family believe that she has dishonoured them and she would be a risk from that quarter too."
10. At paragraphs [11]-[16], the Judge summarised the evidence given at the hearing, including some of the appellant's answers in cross-examination. The appellant said that she was still living with KB, but KB was not present to give evidence as she cared for her elderly father and she could not leave him alone.
11. The Judge noted that the bundle of documents compiled for the hearing included a decree nisi dated 29 August 2018. He observed that there were no other related documents, such as the divorce petition. The Judge recorded the appellant's evidence as being that her husband had said that he wanted a divorce "with no conditions". She believed it was her fault, and so she did not want to complicate things, and so she just signed the papers. She maintained that F, not MH, was the father of her child. She was asked why therefore at questions 73 and 75 of her substantive interview she had said that she did not know the child's paternity. The appellant replied that it was her first interview, and so she had got worried and answered the questions in that way.
12. The Judge set out his findings at paragraphs [17]-[26]. At paragraph [19], he said the absence of KB was a concern, and it reduced the weight that could be attached to her evidence. At paragraph [20], he said that he could not see how the appellant's differing accounts in interview and oral evidence could be reconciled with each other. Clearly, the appellant, while married and living in the UK at a time when her spouse could be the father, had conceived a child and given birth. There was no father named on the birth certificate. She maintained that there had been difficulties over translation, but this did not explain the clear differences between her answers in interview or the differences in the appellant's evidence at the hearing.
13. At paragraph [21], he addressed the claim that F had disappeared. The Judge observed that if the appellant had so wished, she could have enlisted the help of the CSA to locate F, and it was not obvious why this had not been done, bearing in mind the issues and the fact that she had the benefit of legal representation: "Conveniently the appellant did not have DNA evidence of available, and I do not rule out the possibility that this has been done to frustrate a full examination of the facts."
14. At paragraph [22], the Judge said that there was no dispute that the appellant was divorced, but it was not clear why the appellant had not provided evidence of the petition and any allegations that may have been made by her husband against her, and whether there was a co-respondent to the divorce. Given that the divorce documentation would have included contact details for the ex-husband, it appeared that no effort had been made to obtain DNA evidence from him either, and this reinforced his view that this was a matter that the appellant would prefer not to have resolved.
15. At paragraph [23], the Judge observed that if the appellant had had a child outside marriage, then it was clear that she would be in danger in Pakistan. The evidence did not show that the appellant had the level of education or resources that would enable her to support herself as a lone woman or to relocate. The Judge continued in paragraph [24]: "However, the appellant's evidence is confusing and contradictory, and relevant supporting evidence in the form of a DNA test has not been sought. Given the difficulties with the evidence, the appellant has not discharged the burden of proof. I find that the appellant has not shown that her child is not that of her husband, and I do not accept the evidence of the threats that she claims were made against her. The appellant has not shown that she is in need of international protection on any basis."
16. At paragraph [25], the Judge addressed the issue of the child's best interests. At paragraph [26], the Judge held as follows: "The appellant came to the UK on a basis that she claims did not work out. The evidence does not show that her child is not that of her husband and I have found that it would be safe for the appellant and her child to return to Pakistan as they would have the support of the appellant's family available."

The Grounds of Appeal to the Upper Tribunal
17. Ms Iengar settled the grounds of appeal upon which permission to appeal to the Upper Tribunal was sought.
18. Ground 1 was that the Judge had erred in law in not making a conclusive finding on the appellant's risk of persecution on return as a lone woman arriving with a dependent child. This aspect of the protection claim did not require any positive credibility findings. No reference had been made to the guidance given in SM and MH (Lone women - ostracism) Pakistan [2016] UKUT 00067 (IAC).
19. Ground 2 was that the Judge had erred in law in making no clear finding on whether he accepted or rejected the appellant's evidence that she had had an affair with F.
20. Ground 3 was that the Judge had erred in requiring DNA evidence. The issue of DNA evidence had not been raised by either party during the appeal hearing, and it had not been put to the appellant when she was giving evidence, nor had the Judge raised it as a material issue with the legal representatives. Giving weight to the absence of DNA evidence when it was not an issue taken in the appeal was irrational and unsustainable. The Judge had also not considered the feasibility of either F or her ex-husband giving the appellant permission to conduct a DNA test.
The Reasons for Granting Permission
21. On 19 October 2018 First-tier Tribunal Judge SH Smith granted permission to appeal for the following reasons: "There is an arguable material error of law. The Judge did not make any findings concerning the central tenet of the appellant's case, namely that, as a lone woman returning to Pakistan, she engaged the risk criteria outlined in SM and MH (Lone woman - ostracism) Pakistan CG [2016] UKUT 00067 (IAC). The appellant's reliance on that case was clear from the skeleton argument submitted on her behalf. By failing to make findings pursuant to the relevant country guidance, the decision arguably features a material error of law. In addition, the Judge arguably should have given the appellant the opportunity to respond to the concerns surrounding DNA evidence, given the centrality of its absence to the Judge's dismissal of those aspects of the appellant's case that were considered. The ground that the Judge failed to make a clear finding in this case in respect of the appellant's affair has less merit."
The Hearing in the Upper Tribunal
22. At the hearing before me to determine whether an error law was made out, Ms Iengar developed the arguments advanced in the grounds of appeal. On behalf of the respondent, Mr Clarke submitted that there were no material errors in Judge Parke's decision. He conceded that the Judge ought to have raised his concerns about the absence of DNA evidence in the course of the hearing. However, he submitted that his failure to do so did not have a material bearing on the outcome, as pursuant to section 50(9A) of the British Nationality Act 1981 (as amended by the Nationality, Immigration and Asylum Act 2002 at section 9) there was a presumption that the child was legitimate, and the appellant had not rebutted this presumption by providing DNA evidence to show that the child had not been fathered by MH.

Discussion
23. Ground 1 is that the Judge erred in law in not making a clear finding on the central thrust of the appellant's case, and that he failed to apply relevant country guidance to this issue.
24. There were two strands to the appellant's case. One was that she faced a real risk of serious harm on return to her home area, because she had dishonoured her family by having a child out of wedlock, and thus she faced a real risk of being subjected to an honour killing. The other strand to her case was that internal relocation was not a viable option for her, having regard to SM and MH, and to passages in the background evidence cited by Ms Iengar in her skeleton argument for the First-tier Tribunal.
25. I consider that the Judge adequately summarised the appellant's case at paragraph [7] of his decision. I consider that his summary adequately encompassed both strands of the protection claim. The issue of the viability of internal relocation was only going to arise if the appellant made out her case that she had had a child out of wedlock, and thereby faced a real risk of persecution by her family in her home area, or at least a real risk of social ostracism, such that she would be compelled to live elsewhere in Pakistan without adult male protection.
26. The Judge made clear findings that the appellant had not been threatened by her family, and indeed that she would be supported by her family on her return to Pakistan with the child who had been born in wedlock. Assuming for present purposes that these findings of fact are sustainable, the issue of internal relocation did not arise. Everything hinged on the credibility of the appellant's claim that her child was illegitimate, and that her child was known by her family in Pakistan to be illegitimate. The Judge accepted that if this was true, she would be in danger in Pakistan and that internal relocation would not be viable. In making this finding, he clearly had in mind the County Guidance case of SM and MH cited at paragraph 6 of Ms Iengar's skeleton argument. In finding that the appellant did not have a level of education or resources that would enable her to support herself or to relocate, the Judge was clearly alluding to sub-paragraph 4 of the Headline Guidance in SM & MH which provides as follows: "It will not normally be unduly harsh for the educated, better off, or older woman to seek internal relocation to a city. It helps if a woman has qualifications enabling her to get well paid employment and pay for accommodation and child care if required."
27. Ms Iengar accepts that it was open to the Judge to make adverse credibility findings against the appellant on the grounds of the internal inconsistency and also because a key supporting witness, KB, was not tendered for cross-examination on her witness statement. However, she submits that the issue of the appellant's credibility is irrelevant to the issue of the viability of internal relocation, as it is an undeniable fact that the appellant is divorced, and so she would be going back to Pakistan as a lone woman with a dependent child. However, as I have already indicated, this submission overlooks the fact that the appellant must also show that the child is illegitimate and/or would be perceived by her family in Pakistan as being illegitimate. The appellant's credibility as a witness of truth was (and is) pivotal to the resolution of these crucial questions; and, for that reason, there is no merit in the submission that the Judge ought to have considered the issue of internal relocation independently of a credibility assessment.
28. Ground 2 is that the Judge erred in law in not making a clear finding as to whether, in line with the respondent, he rejected the appellant's account of having an affair with F.
29. In South Bucks District Council v Porter (2) [2004] UKHL 33 Lord Brown said at [26]:
The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision (my emphasis). The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example, by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute, not to every material consideration (my emphasis).
30. In finding that the appellant had not shown that the child was not that of her husband, and that she would have the support of her family on return to Pakistan, the Judge adequately indicated that he rejected all material aspects of the appellant's core claim, including her claim to have committed adultery; and her claim that her adultery had come to the knowledge of her family in Pakistan. In short, while it was not spelt out, it is tolerably clear that the Judge agreed with the respondent that the appellant had not shown that she had had an affair outside marriage, let alone that the child to whom she had given birth in the UK was not the child of her husband.
31. Turning to Ground 3, I do not consider that there was material unfairness in the Judge raising as part of his reasoning process the absence of DNA evidence to show that the child was illegitimate. The appellant was advancing a sur place claim, and at all material times she had the assistance of legal representation in the jurisdiction where her protection claim was said to have arisen. It was open to the Judge to comment on the absence of supporting evidence which in his view could reasonably had been expected to have been sought and obtained by the appellant on the advice of, and with the assistance of, her legal representatives. It was open to the Judge to find that it would have been feasible for the appellant to have obtained DNA evidence from F through employing the services of the CSA to trace him.
32. Section 50(9A) of the British Nationality Act 1981 provides that, for the purposes of this Act, a child's father is - "(a) the husband, at the time of the child's birth, of the woman who gave birth to the child, or ? (c) where none of paragraphs (a)-(ba) applies, a person who satisfies prescribed requirements as to proof of paternity."
33. The presumption of legitimacy is a well-known principle in this jurisdiction. Its recognition is not confined to the British Nationality Act 1981. The child is presumptively legitimate, having been born in the UK while the appellant was married to her EEA national sponsor husband. It was not essential that the appellant should have obtained DNA evidence to prove illegitimacy to the lower standard of proof, and the Judge did not state that it was. As he indicated, it was open to her to prove illegitimacy through other credible sources of evidence. However, for the reasons given by the Judge elsewhere in his decision, there were not any other credible sources of evidence to establish that the child was illegitimate. In addition to her evidence being internally discrepant and KB not being tendered for cross-examination, there had been no disclosure of the divorce petition or any other documents supportive of her claim that the reason for the divorce was the child being fathered out of wedlock. Accordingly, the Judge's observations about the absence of DNA evidence were not material to the outcome. The appellant had not in any event discharged the burden of proving, even to the lower standard of proof, that her child was illegitimate.

Notice of Decision
The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

Direction Regarding Anonymity
Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 27 December 2018

Deputy Upper Tribunal Judge Monson