R v Immigration Appeal Tribunal and Secretary of State for the Home Department ex parte Syeda Khatoon Shah

JurisdictionEngland & Wales
Judgment Date11 November 1996
Date11 November 1996
Docket NumberCO/4330/95
CourtQueen's Bench Division
Queen's Bench Division:

Sedley J

CO/4330/95

R
and
Immigration Appeal Tribunal and Secretary of State for the Home Department
ex parte Syeda Khatoon Shah

Miss F Webber for the applicant

M Shaw for the respondent

Cases referred to in the judgment:

Sanchez-Trujillo v Immigration and Naturalisation Service 801 F 2nd 1571 (9th Circ 1986).

Canada (Attorney General) v Ward [1993] 2 RCS 689.

Secretary of State for the Home Department v Sergei Savchenkov [1996] Imm AR 28.

McGregor (unreported).

Islam (unreported).

Asylum — domestic violence — persecution by husband — fear of threat of persecution for adultery — whether Pakistani women rejected by their husbands on the grounds of alleged adultery constitute a social group within the Convention.

The applicant for the judicial review of the refusal by the Tribunal to grant leave to appeal from the determination of a special adjudicator dismissing her appeal against the refusal of the Secretary of State to grant her asylum was a citizen of Pakistan.

The applicant asserted that her husband had been violent. She had been driven out of her home. On arrival in the United Kingdom she was pregnant. She believed her husband, if she returned to Pakistan would accuse her of having conceived the child adulterously and she would be subject to penalties under the Shariah law.

The adjudicator found the applicant had been persecuted but not for a Convention reason.

Before the court it was argued that the applicant fell within a social group within the Convention.

It appears that the definition of the relevant social group caused counsel some difficulty but the court permitted counsel to vary the definition.

Held:

1. The facts established were capable of bringing the applicant within the Convention.

2. “This did not mean that if the fact-findings stand she is bound to succeed. In this highly specialised field of adjudication a great deal depends upon the expertise of the Immigration Tribunal itself. Its adjudication is not a conventional lawyer's exercise of applying a legal litmus test to ascertained facts; it is a global appraisal of an individual's past and prospective situation in a particular cultural, social, political and legal milieu, judged by a test which though it has legal and linguistic limits, has a broad humanitarian purpose.”

Sedley J: By leave of Tuckey J granted on 9 February 1996 Miss Webber moves on the applicant's behalf:

(1) for mandamus to require the Immigration Appeal Tribunal to hear and determine the applicant's appeal from the decision of a special adjudicator, the Tribunal having refused leave to appeal;

and

(2) for mandamus requiring the Secretary of State to reconsider his refusal to accept the special adjudicator's recommendation that, notwithstanding the refusal of asylum, the applicant should have exceptional leave to remain.

By agreement of Miss Webber and Mr Shaw, for the Home Secretary, (the Tribunal being unrepresented before me), the second issue was stood over pending resolution of the first. At the conclusion of argument I gave my conclusion that the applicant succeeded on the first issue, reserving my reasons, which I now set out. In consequence (unless my decision is overset on appeal) the second issue becomes otiose. If it revives, it will be in fresh circumstances not apt for consideration on the present motion.

The material findings of the special adjudicator, Mrs J L Weinberg, may be summarised as follows. The applicant, a citizen of Pakistan, was a battered wife. She had been brought up partly in the United Kingdom but had returned to Pakistan at 17 in order to marry. She and her husband had six children, all of whom are being brought up by the extended family. Her husband, after years of violence, had finally driven her out of her home. On arrival in the United Kingdom she found that she was pregnant. She has given birth and now credibly fears that if she has to return she will be accused by him of conceiving the child adulterously, exposing her to the operation of the Shariah statute law which prescribes stoning to death as the punishment for adultery. If returned to Pakistan she would have nowhere but her husband's house to go.

The special adjudicator held:

“I am satisfied that she has been persecuted and that there is a reasonable expectation that she would be persecuted by her husband in the future if she were to return to him.”

Pausing here, the first reference to persecution is evidently to domestic violence; the second may be to domestic violence alone or to the anticipated accusation of adultery. The special adjudicator in the event concluded:

“Her fear of persecution is well-founded, and there is a reasonable degree of likelihood that she will be persecuted if she is returned to Pakistan. I nevertheless do not find that persecution or fear of persecution falls within the terms of the Convention.”

She accordingly dismissed the appeal against the adverse decision of the Secretary of State, who had very fairly treated the applicant's appeal against notice of illegal entry, which spoke of her fear of persecution, as an asylum claim. The decision letter, without a trace of irony, had given as one of the Secretary of State's reasons “that since 1988 no individual has been punished by the authorities by use...

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