KA and Others (domestic violence – risk on return)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Stadlen,Storey,Kekic |
| Judgment Date | 22 April 2010 |
| Neutral Citation | [2010] UKUT 216 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 22 April 2010 |
[2010] UKUT 216 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Stadlen
SENIOR IMMIGRATION JUDGE Storey
SENIOR IMMIGRATION JUDGE Kekic
For the Appellants: Mr E Fripp, Counsel instructed by Paragon Law Solicitors
For the Respondent: Mr C Bourne, Counsel instructed by the Treasury Solicitor
KA and Others (domestic violence — risk on return) Pakistan CG
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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.
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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.
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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.
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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.
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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.
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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.
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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.
Our decision on these appeals is one on which we all agree and also one to which each member of the panel has contributed substantially. The first appellant (hereafter “the appellant”) is a national of Pakistan born on 10 April 1981. The second and third appellants are her daughters. They are also nationals of Pakistan, born on 7 May 2003 and 24 January 2007 respectively. On 20 August 2006 the appellant arrived in the UK, illegally it would appear, accompanied by the second appellant. She claimed asylum on 29 August 2006 avowing that she had a well founded fear of persecution if returned to Pakistan on the basis that she would be pursued by her abusive husband, that she would be detained and prosecuted as a result of false adultery and attempted murder charges he had filed against her and that she would be ill treated in prison. She also argued that she would lose custody rights to her child. On the same basis she argued that her removal would breach her human rights.
On 16 January 2008 the respondent refused the application and made a decision to remove her and her daughters as illegal entrants. On 28 January 2008 the appellants gave Notice of Appeal and their appeals were heard by Immigration Judge (IJ) Buchanan at Birmingham on 28 February 2008. The IJ found that the appellant's evidence, as outlined in her asylum interview and further expanded upon in her witness statement, was true. He found the First Information Report (FIR) she had produced to be a genuine document. That report said that the appellant had been accused of adultery with a man called YK and also attempted murder of her husband's servant who was said to have seen them commit adultery. He accepted that at the time the appellant left Pakistan she had a well founded fear of persecution on account of being a member of a particular social group, namely a woman charged with committing adultery, and that she would have been at real risk of imprisonment under the Hudood Ordinances. He also found that at that time, if re-arrested, she would have had difficulty in obtaining further bail. He concluded however that there was no risk at the time of the hearing because of the introduction of the The Protection of Women (Criminal Laws Amendment) Act, 2006 (hereafter “PWA”; some texts refer to it as “WPA”)) which repealed those parts of the Hudood Ordinances that related to charges of sexual misconduct, in particular the Offence of Zina (Enforcement of Hudood) Ordinance 1979 (hereafter the “Zina Ordinance”; zina is a generic term covering adultery and non-marital consensual sex including consensual sex between a married and unmarried person). He found that the appellant would have effective protection against her husband and that she would not be at risk of an honour killing as the evidence suggested that they occurred in rural parts of the country whereas the appellant lived in Lahore and came from a relatively wealthy background. He found that she could also obtain shelter in a state run Darul Aman (house of peace). His determination dismissing the appeals was promulgated on 5 March 2008.
On 13 March 2008 an application for reconsideration was filed by the appellants' representatives; issue was taken with the IJ's findings on the effect of the PWA. On 27 March 2008 Senior Immigration Judge (SIJ) Latter ordered reconsideration.
A Case Management Review (CMR) hearing took place on 25 September 2008 before SIJ Gleeson when it was agreed by the parties that the appeal would be suitable for possible country guidance on the effect of the PWA and related issues. The matter was then listed before a panel on 8 January 2009. Following that hearing, it was decided by SIJs Southern and Ward and Mrs Harris that the IJ had made a material error of law. A full transcript of their decision is annexed to this determination but in summary the panel found that the judge's findings as to the effect of the Act were fundamentally flawed and inaccurate. He appeared to have concluded that the prospect of an adultery charge had fallen away altogether whereas the evidence before him suggested only that the process of prosecution may have changed. He found there was no remaining risk of imprisonment without dealing with the evidence before him pointing to there remaining a risk of imprisonment on conviction even before a secular court. It was considered that the IJ also appeared to have overlooked the fact that, even if he were correct to find that the adultery allegations had fallen away, the appellant still potentially faced arrest because the other allegations in the FIR remained outstanding. As, on the findings of the IJ, the appellant had absconded from bail, the prospects of being readmitted to bail should she be arrested on return should also have been considered.
The Tribunal found that the appellant should not be deprived of the acceptance of her factual account and therefore, with the agreement of the parties, it was held that the starting point for the reconsideration hearing would be the following findings:
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•that the appellant's account, as outlined in her asylum interview and further expanded upon in her witness statement, is true (this evidence is summarised below);
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•the FIR is a genuine document;
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•the medical report relating to the appellant's father is also genuine; he suffers from a heart condition which existed since 1993. However, it was noted that the document did not support the appellant's claim that his condition had deteriorated markedly since the time of her arrest.
A further CMR Hearing took place on 8 April 2010 before SIJ Storey.
At the conclusion of the two-day hearing before us the parties were given extra time to submit further comments from two of the experts instructed in these appeals, Dr Lau and Dr Shah, addressing several questions raised by the Tribunal that had been referred to in earlier submissions and to make further submissions.
The appellant's case is set out in her asylum interview of 19 January 2007, in three witness statements dated 25 February 2008, 28 April 2009 and 22 April 2010 and in the oral evidence she gave before the IJ and before us.
The appellant's screening interview which took place on 29 August 2006 was concerned mainly with her method of entry and travel arrangements; however the appellant did state that false allegations had been made against her and she had spent two days in prison.
Her asylum interview took place on 19 January 2007. She said she had claimed asylum because her...
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