R Mehreen Khan v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Burnett,THE HONOURABLE MR JUSTICE BURNETT |
| Judgment Date | 16 January 2012 |
| Neutral Citation | [2012] EWHC 18 (Admin) |
| Docket Number | Case No: CO/8894/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 January 2012 |
[2012] EWHC 18 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Burnett
Case No: CO/8894/2011
Shivani Jegarajah (instructed by Thompson & Co) for the Claimant
Katherine Apps (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 21 December 2011
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The claimant is a 30 year old Pakistani national whose asylum and human rights claims were certified by the Secretary of State for the Home Department pursuant to section 94(2) of the Nationality, Immigration and Asylum act 2002 ["the 2002 Act"]. That decision has since been affirmed following the grant of permission to apply for judicial review.
The facts underlying the claim advanced by the claimant before the Secretary of State and in this court are these. The claimant lived with her brother-in-law, his wife (who is her sister) and their three children in Karachi in Pakistan. The claimant's brother-in-law, Malik Usman, is a Deputy Superintendent of Police in the CID in Karachi. He is involved in the detection and prosecution of terrorists in Pakistan. The claimant lived with him and his family since she was eight years old, when her own parents died. She has two other sisters who live in Peshawar. Her brothers live in Saudi Arabia.
Mr Usman has been receiving threats since 2009 connected with his work, in particular seeking to discourage him from giving evidence against terrorist suspects. He took part in an operation against terrorists on 11 September 2010 during which a number of suspected terrorists were killed and captured by the unit he commanded. The threats have become more intense since that operation. Despite these threats Mr Usman has continued to work in the same unit and give evidence in cases involving suspected terrorists. On 11 November 2010 there was a terrorist attack on the CID office where Mr Usman worked. He sustained injury. He had treatment in Pakistan and also in the United Kingdom. He was unable to work for about four weeks. The nature of those threats and the extent to which they involved his family members, including the claimant, were explained by her in the course of her asylum interview. The threats extended to herself and her sister telling them to stop him giving evidence. On a day in January 2011 somebody pressed the intercom to the family home and threatened the claimant indicating "we can come upstairs and do whatever we want to do" and "tell your brother in law not to become a witness otherwise we can do anything to you". Mr Usman received threats that if he continued to act as a witness something would be done to his family. After the threat received via the intercom the claimant rarely left the house. On 26 January 2011 the claimant's nephews were returning home from school when the car in which they were travelling was fired upon. In February 2011, the claimant took her niece to a medical centre because she had suffered an asthma attack. Two men approached her in the car park and said "we can do anything to you". Other people intervened and the two men ran away. On 5 March 2011 shots were fired at the house. On another occasion the claimant's sister suspected that she was being followed by people on a motorcycle. She was in her car. She pulled over near a police station and the people disappeared.
In the course of her asylum interview, the claimant said that her brother-in-law had not reported all of the incidents that she had recounted. He apparently did not want to make a fuss. She too has not reported them. But it appears that he has protection. This exchange took place in the course of the interview:
Question: I do not understand. If brother-in-law held such a high position within police and working in CID why you didn't have more protection and why he didn't report threats?
Answer: The protection was given to him but he just told us to stay inside.
A document dated 19 April 2011 suggests that Mr Usman made a written complaint to a magistrates court in Karachi which included an allegation that he had been receiving threatening calls since 10th of December 2010. They led him to believe that terrorists from banned organisations might cause him harm or harm his family. He asked for action to be taken. The claimant is not aware whether any report was made by him of the more serious incidents she has described. She has not sought the protection of the Pakistani police or any other official body.
The claimant left Pakistan with her brother-in-law, sister and their children on 29 May 2011. They arrived in the United Kingdom the next day. The claimant had a visitor's visa valid until October. Mr Usman came to the United Kingdom for further medical treatment for the injury he sustained in the bomb attack. He has since returned to Pakistan. It was always the collective intention of the adults that the claimant, her sister and their children would seek asylum in the United Kingdom. It is an important part of the argument advanced on behalf of the claimant that Mr Usman himself has taken the view that his family would be safer in the United Kingdom than if they remained in Pakistan. The claimant made her application for asylum on 12th of July 2011. Her sister, on her own behalf and on behalf of her three children, also made an application. The basis of the application advanced on behalf of the claimant was that she would be at risk of attack from terrorists (who for convenience I shall simply call the Taliban) on account of her connection with Mr Usman and the direct threats made to her and the family.
On 28 July 2011 the claim for asylum and humanitarian protection was refused by the Secretary of State and certified as being clearly unfounded. The Secretary of State recognised the widespread violence in Pakistan and terrorist activity but concluded that the claimant could seek the protection of the proper authorities in Pakistan should the need arise. The letter of refusal contained a reference to an analysis of the strength and capability of the police, the Armed Forces and other security forces in Pakistan. She noted the willingness of the claimant's brother-in-law to return to Pakistan. She referred to the senior position he held in the police. The Secretary of State recorded that there was no suggestion that the authorities had been asked to provide protection, but had failed to do so. The Secretary of State went on to consider the nature of the fear asserted by the claimant. It related to events in Karachi and threats directed at the claimant's brother-in-law. She concluded that the claimant could relocate to another part of Pakistan where she would be removed from the environment in which she feared danger. In particular, the claimant could go to either of her sisters in Peshawar. For these reasons the asylum claim and the claim for humanitarian protection failed. The Secretary of State went on to consider whether to grant discretionary leave to the claimant. In doing so she considered article 8 ECHR. The refusal letter noted that the claimant had been in the United Kingdom since May with an adult sibling. The Secretary of State considered that it would be reasonable for the claimant's sister to return to Pakistan with her husband, but in any event concluded that in all the circumstances, article 8 could not assist the claimant in resisting removal. The structure of the letter was entirely conventional. It was headed 'Reasons for Refusal'. It recounted the evidence put forward by the claimant and set out the basis for the claim for asylum and humanitarian protection. It drew upon published and independent sources on the security situation in Pakistan. It dealt with all the points advanced by the claimant in exhaustive detail concluding in paragraph 61 of the document that the claims should be refused. It continued in this way:
"62. In addition, after considering all the evidence available to [her], the Secretary of State has decided that your asylum claim is clearly unfounded and hereby certifies it as such under section 94(2) of the [2002 Act].
63. Furthermore, it is not considered on the information available that your removal would be contrary to the United Kingdom's obligations under the ECHR.
64. In addition, after considering all the evidence available to [her], the Secretary of State has decided that your human rights claim is clearly unfounded and hereby certifies it as such under section 94(2) of the [2002 Act]."
The certification of the asylum and human rights claim as clearly unfounded had the consequence of conferring on the claimant a right of appeal only from outside the country. The claimant's leave was curtailed. She was advised that if she did not leave voluntarily removal directions would be set. Those directions were set on 29 August 2011. The claimant was detained on 5 September 2011 with a view to removal on 9 September. The removal directions were cancelled. These proceedings were issued on 16 September. On 14 October permission to apply for judicial review was granted. The claimant was released from custody.
In the meantime, on 6 October 2011 further material was sent to the Secretary of State, prompted by the acknowledgment of service served in these proceedings. That material included...
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