Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001097
UI-2025-001098
UI-2025-001102

First-tier Tribunal No: PA/68356/2023
PA/08781/2024
PA/68361/2023
LP/08781/2024
LP/08782/2024
LP/08783/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of September 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE WELSH

Between

NM, MF & SF
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Shah on behalf of 786 Law Associates
For the Respondent: Ms N Kerr, Senior Home Office Presenting Officer

Heard at Field House on 5 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellants are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellants, likely to lead members of the public to identify the Appellants. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of the Respondent, dated 20 December 2023, to refuse the Appellants’ protection and human rights claims. The appeal is heard following the finding of an error of law (Deputy Upper Tribunal Gill, in a decision dated 20 July 2025) and the setting aside of the decision of the First-tier Tribunal (First-tier Tribunal Judge Monson). The Upper Tribunal preserved “the judge’s findings regarding the underlying facts, the evidence and credibility” [para 18] such that the issues on remaking are narrow.
2. We summarise the Appellants’ case (in line with the preserved findings of fact) as follows. The Appellants are nationals of Pakistan. The First Appellant is the mother of the Second and Third Appellants. The First Appellant began a relationship with her partner in 2020, shortly after her arrival in the United Kingdom. They have, since the inception of their relationship, cohabited but have not undertaken the Nikah ceremony. They have two children together, the eldest being born in 2021. It is the Appellants’ case that they face a real risk of persecution or serious harm on return to Pakistan because the First Appellant has lived with her partner, and had children with him, outside of marriage. The Appellants’ human rights claim stands or falls with the protection claim.
3. The key issue in dispute (in line with the preserved findings of fact) is whether, notwithstanding the fact that under Muslim Personal Law the First Appellant’s personal circumstances are such that she is presumed to be married and her children presumed to be legitimate, she would be liable to prosecution under section 496B the Pakistan Penal Code 1860 (the crime of fornication). A matter not pleaded by the Appellants, but raised by Deputy Upper Tribunal Gill and we therefore consider it, is whether the First Appellant is liable to be prosecuted for late registration of the Nikah.
4. We continue the anonymity order made below because the potential risks to the Appellants if their identities and circumstances are known outweigh the public interest in open justice.
Hearing
5. We heard oral evidence from the First Appellant, who was assisted by an Urdu interpreter.
6. Both advocates made oral submissions and we refer to the relevant parts of those submissions during the course of this decision.
Evidence
7. We have taken into account the following material:
(1) the appeal bundle (PDF pages 1 to 378);
(2) the witness statement of the First Appellant, dated 28 May 2025; and
(3) the oral evidence of the First Appellant.
Findings and conclusions
Protection claim
8. For the reasons set out below, we conclude that the Appellants have not demonstrated that they face a real risk of persecution or serious harm on return to Pakistan.
Section 496B the Pakistan Penal Code 1860
9. We have been provided with the relevant section of the Penal Code:
(1) A man and woman not married to each other are said to commit fornication if they wilfully have sexual intercourse with one another.
(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to 5 years and shall also be liable to fine not exceeding ten thousand rupees.
10. Mr Shah submitted, in summary, that section 496B does not state that presumed marriage under Muslim Personal Law is included within the definition of “married” under the Penal Code. Ms Kerr submitted that paragraph 6.2.4 of the ‘Country Policy and Information Note: Women fearing gender-based violence (November 2022)’ [“the CPIN”] is consistent with the definition of marriage under the Penal Code as including presumed marriage. The section to which she referred us contains the legal opinion of an expert that, if there is a presumption of marriage, the couple do not need to remarry in order to confer legitimacy upon their child (they can simply opt for late registration of the marriage).
11. The Appellants did not adduce any expert evidence on the interpretation of the Penal Code. This was despite the grounds of appeal that led to the overturning of the decision of Judge Monson pleading boldly that the Judge erred by concluding, in the absence of expert evidence, that presumed marriage under Muslim Personal Law would mean that the First Appellant would not be liable to prosecution for the offence of fornication.
12. In our judgment, the interpretation of “married” within section 496B of the Penal Code would require consideration of expert evidence (applying CS and Others (Proof of Foreign Law) India [2017] UKUT 00199 (IAC)) and, the burden being on the Appellants to adduce such evidence, we therefore conclude that the Appellants have not demonstrated that the First Appellant will be liable to prosecution for the crime of fornication.
13. However, we go on to consider the alternative, namely that the statute is sufficiently clear for us to reach our own conclusion.
14. The Protection of Women (Criminal Laws Amendment) Act 2006 [the 2006 Act], which amends the Pakistan Penal Code, and upon which the Appellants rely, contains an explanatory “Statement of Objects and Reasons”. We note the following:
The object of this Bill is to bring the laws relating to zina and quaf, in particular, in conformity with the stated objectives of The Islamic Republic of Pakistan and the constitutional mandate and in particular to provide relief protection to women against misuse and abuse of law …
A penal statute must be clear and unambiguous. It must mark the boundaries between the permitted and prohibited with clarity. The citizens are, thus, put to notice. They can order their life and conduct by following these bright guidelines and steer clear of trouble … The object is to protect the unwary and unsuspecting citizens from unwittingly falling foul penal laws.
The Zina Ordinance also defines “marriage” as a valid marriage. In rural areas, in particular, nikahs generally and divorces particularly are not registered. It becomes difficult for a person charged with zina to establish “valid marriage” as a defence. Non-registration has a civil consequences. These are sufficient. Failure to register a nikah or have a divorce confirmed should not entail penal consequences. This is in consonance with the Islamic norm that Hadd should not be imposed whenever there is any doubt about the commission of the offence. The misuse of the law in such cases has made it an instrument of oppression in the hands of vengeful former husbands and other members of society.
15. There is no dispute, as we understand it, between the parties that the crime of “zina” includes fornication. On a commonsense reading of the explanatory note, the intention of the 2006 Act was to ensure that those who are presumed married but have not registered the marriage would not be subject to criminal penalty. Therefore, the only rational interpretation of section 496B is that “married” includes those deemed to be married under Muslim Personal Law.
Late registration of Nikah
16. As previously stated, this was not a point relied upon by the Appellants; it was raised of the Tribunal’s own motion at the error of law hearing. The only evidence that late registration carries a criminal penalty is contained within paragraph 6.2.4 of the CPIN (the paragraph to which we were referred by Ms Kerr). The CPIN cites the opinion of a lawyer that:
… unless the father of the child refuses to acknowledge the child as his legitimate child, marriage will be presumed from the day the couple commenced together. Hence, given presumption of marriage, such a couple will not be required to re-marry in order to confer legitimacy upon the child and can simply opt for late registration subject to risk of persecution an (sic) imposition of the penal provisions of s5(4) of the Muslim Family Laws Ordinance, 1061 (sic). The prescribed penalty is simple imprisonment of up to 3 months or a fine of up to PKR 1000 or both. The fine may not even be imposed if marriage is not denied or disproved in the register or accept the fact of a private Nikah … In fact, to our knowledge, penalty under section 5(4) is rarely imposed.
17. In our judgment, it is self-evident that this passage from the CPIN provides no proper evidential basis for concluding that the First Appellant faces a real risk of prosecution for late registration of the Nikah. Even if we are wrong to reach that conclusion, then the same evidence demonstrates that a penalty is rarely imposed such that it cannot be concluded that there is a real risk that it would be imposed in the circumstances of the First Appellant.
Article 8
18. At the error of law hearing, the finding of the First-tier Tribunal in relation to the best interests of the Second and Third Appellants was set aside, given it was capable of being affected by the determination of the question of whether the First Appellant faced a real risk of prosecution for the crime of fornication/late registration of Nikah. Given our conclusion on this matter, we respectfully agree with the reasoning and conclusion of Judge Monson that it is in the best interests of the children to remain with their parents in Pakistan. All other findings of fact in relation to Article 8 having been preserved, and no additional evidence having been adduced on the question of the extent of interference with the Appellants’ Article 8 rights, we conclude that (i) there would no interference with family life because the family will return as a unit (ii) there would be limited interference with the private lives of the Appellants and that (iii) the public interest outweighs any such interference such that the Respondent’s decision being maintained is a proportionate interference with their right to respect for family and private life and lawful under section 6 of the Human Rights Act 1998.
Notice of Decision
The protection and human rights claims of each Appellant are dismissed.

C E Welsh
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 September 2025