United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-003296 UI-2024-003502   First Tier Tribunal no.s: PA/53122/2023 LP/00268/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20 February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE BRUCE

 

 

Between

 

NM (Pakistan)

(anonymity order made)

Appellant

and

 

Secretary of State for the Home Department

Respondent

 

 

Representation :

 

For the Appellant: Mr Jagadesham, Counsel instructed by Fisher Stone Solicitors

For the Respondent: Mr Thompson, Senior Home Office Presenting Officer

 

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify her or any member of her family. Failure to comply with this order could amount to a contempt of court .

 

 

Heard in Bradford on the 18 ^th November 2024

 

 

DECISION AND REASONS

1.              The Appellant is a national of Pakistan born in 1973. She appeals with permission against the decision of the First-tier Tribunal to dismiss her appeal, on protection and human rights grounds, against the decision to refuse to grant her leave to remain in the United Kingdom.

2.              The parties to this appeal have my sincere apologies for the delay in the promulgation of this decision, which is the result of my having had an extended absence from work due to illness.

3.              Insofar as is relevant to the disposal of this appeal, the substance of the appellant's protection claim was that several features of her circumstances overlapped so as to place her at a real risk of persecution should she be returned to Pakistan. The Convention reasons underpinning her claim are her membership of a particular social group (women), and her religious belief (she has converted from Sunni Islam to Shia Islam).

4.              Much of her evidence was accepted by the First-tier Tribunal. Contrary to findings made by other Tribunals in the past, it accepted that the Appellant had indeed converted to Shia Islam as she claimed. It accepted that she had been subject to serious domestic violence at the hands of her former husband in Pakistan, which it described as "appalling past ill-treatment of spousal rape, and sexual, physical, emotional and financial abuse". It found as fact that it is reasonably likely that the Appellant will be detained on arrival in Pakistan, as she is the subject of allegations made by her former husband in an FIR filed with the Pakistani authorities some time ago. This detention would likely lead to the Appellant's prosecution. Under a separate heading the Tribunal implicitly accepts that the Appellant suffers from depression and complex PTSD.

5.              These positive findings of fact notwithstanding, the appeal failed on protection grounds for the following reasons. Although Sunni extremists may view the appellant as an apostate and so wish to do her harm, the evidence falls short of establishing that she would not receive a sufficiency protection from the Pakistani state. Although the country background material would tend to suggest that a Pakistani woman's fear of domestic violence at the hands of her husband would be well founded, this man is no longer her husband. Although it is reasonably likely that the appellant will be detained and held in prison pursuant to the FIR, this would simply be lawful prosecution; she could get bail and defend herself in court. Finally the Tribunal discounted the relevance of the Appellant's mental illness on the grounds that it would neither be life threatening nor require hospitalisation.

6.              The Appellant has permission to appeal on several grounds but for reasons I explain, I need not address them all.

Failure to consider the risk factors cumulatively

7.              The First-tier Tribunal quite properly considered what risk the Appellant might face should she be returned to Pakistan. It found as fact that when she returned, she would be arrested and face prosecution. It then said this:

"There is no cogent evidence either in the report of Dr Holden or the Respondent's CPIN to undermine the guidance in KA that there is no risk of a flagrant denial of her right to a fair trial, or that the prison conditions are persecutory or amount to serious harm or ill-treatment" [at paragraph 55]

8.              Before me Mr Jagadesham made several criticisms of that reasoning, and I am satisfied that each is made out.

9.              The reference to KA is to the Upper Tribunal's decision in KA and Others (domestic violence - risk on return) Pakistan CG [2010] UKUT 216 (IAC) in which the following country guidance was given:

                      i.             In general persons who on return face prosecution in the Pakistan courts will not be at real risk of a flagrant denial of their right to a fair trial, although it will always be necessary to consider the particular circumstances of the individual case.

                    ii.             Although conditions in prisons in Pakistan remain extremely poor, the evidence does not demonstrate that in general such conditions are persecutory or amount to serious harm or ill-treatment contrary to Article 3 ECHR.

                  iii.             The Protection of Women (Criminal Laws Amendment) Act 2006 ("PWA"), one of a number of legislative measures undertaken to improve the situation of women in Pakistan in the past decade, has had a significant effect on the operation of the Pakistan criminal law as it affects women accused of adultery. It led to the release of 2,500 imprisoned women. Most sexual offences now have to be dealt with under the Pakistan Penal Code (PPC) rather than under the more punitive Offence of Zina (Enforcement of Hudood) Ordinance 1979. Husbands no longer have power to register a First Information Report (FIR) with the police alleging adultery; since 1 December 2006 any such complaint must be presented to a court which will require sufficient grounds to be shown for any charges to proceed. A senior police officer has to conduct the investigation. Offences of adultery (both zina liable to hadd and zina liable to tazir) have been made bailable. However, Pakistan remains a heavily patriarchal society and levels of domestic violence continue to be high.

                   iv.             Whether a woman on return faces a real risk of an honour killing will depend on the particular circumstances; however, in general such a risk is likely to be confined to tribal areas such as the North West Frontier Province (NWFP) and is unlikely to impact on married women.

                     v.             Pakistan law still favours the father in disputes over custody but there are signs that the courts are taking a more pragmatic approach based on the best interests of the child.

                   vi.             The guidance given in SN and HM (Divorced women - risk on return) Pakistan CG [2004] UKIAT 00283 and FS (Domestic violence - SN and HM - OGN) Pakistan CG [2006] 000283 remains valid. The network of women's shelters (comprising government-run shelters (Darul Amans) and private and Islamic women's crisis centres) in general affords effective protection for women victims of domestic violence, although there are significant shortcomings in the level of services and treatment of inmates in some such centres. Women with boys over 5 face separation from their sons.

                vii.              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.

10.          Mr Jagadesham submits, correctly in my view, that this guidance is rather more nuanced than the First-tier Tribunal's summary of it at its paragraph 55. KA is not authority for the proposition that there is "no risk of a flagrant denial" of a right to fair trial: on the contrary what it says is that it will "always be necessary to consider the particular circumstances of the individual case". Nor does KA say that there is no risk of prison conditions amounting to persecutory ill-treatment: what it says is that "in general" the extremely poor conditions do not reach that threshold. In this case, there were two very obvious issues which should have formed part of the fact sensitive KA assessment: the fact, as found, that the Appellant had converted to Shia Islam, and the apparently uncontested medical evidence that she suffered from complex PTSD and would suffer a rapid destabilisation of her mental state should she find herself in detention, no matter how brief. Both of those matters were potentially relevant to whether she was able to access a fair trial, and her ability to cope with the "extremely poor" conditions in detention prior to being bailed. It is trite protection law that ill-treatment must reach a minimum level of severity if it is to fall within the scope of Article 3 or amount to persecution for a Convention reason. The assessment of this minimum is relative: it depends on all of the circumstances of the case, such as the duration of the ill-treatment, its physical and mental effects, and in some cases the sex, age and state of health of the victim. The clear medical evidence before the Tribunal was to the effect that the Appellant was particularly vulnerable, and so detention would have a disproportionate adverse impact on her. I note that in KA itself the Tribunal found that for that woman appellant, a brief detention prior to bail would not in itself amount to persecution: it was however satisfied that it passed that threshold of seriousness, once her history of sustained domestic violence was taken into account [ KA paragraphs 245-246].

11.          Furthermore, and in my view fundamentally, the Tribunal did not stop to consider why the Appellant would be detained: this is Mr Jagadesham's second point. The FIR at the centre of this case amounts to an accusation by the Appellant's first, abusive, husband that she has committed crimes under section 496 of the Pakistan penal code, namely fornication outside the bounds of marriage. As the country expert Dr Holden explains, Pakistani law delineates a panoply of offences aimed at controlling women's social interactions, and in particular their sexuality. The rules of evidence, and the penalties imposed for violation of these laws, vary according to the gender of the accused. The laws themselves are designed to set women apart as a class, and for the reasons explained by their Lordships in Shah and Islam [1999] UKHL 20, are obviously discriminatory. Set within the framework of international human rights law, it is easy to see how prosecution under such provisions could also amount to persecution. In this particular case, the FIR filed by the Appellant's ex-husband was simply part of the continuum of the abuse that he has subjected her to. He accused her of adultery with the man who is now her husband, knowing that action would be taken against her pursuant to these discriminatory laws.

12.          For those reasons, I am satisfied that on the basis of the facts as found by the First-tier Tribunal, the Appellant is a refugee. In finding otherwise the Tribunal erred in misinterpreting the guidance in KA, failing to consider the individualised impact of detention on this traumatised, vulnerable and mentally ill survivor of domestic abuse, and failing to consider whether her prosecution also amounted, on the facts, to persecution.

Decisions

13.          The decision of the First-tier Tribunal is set aside.

14.          The decision in the appeal is remade as follows: the appeal is allowed on protection and human rights grounds.

15.          There is an order for anonymity.

 

 

Upper Tribunal Judge Bruce

Immigration and Asylum Chamber

15 ^th January 2025