SN & HM (Divorced women – risk on return)
| Jurisdiction | England & Wales |
| Judge | J A J C Gleeson,Vice-President |
| Judgment Date | 25 May 2004 |
| Neutral Citation | [2004] UKIAT 283 |
| Court | Immigration Appeals Tribunal |
| Date | 25 May 2004 |
[2004] UKIAT 283
IMMIGRATION APPEAL TRIBUNAL
Mr J Freeman (Vice-President)
Mrs J A J C Gleeson (Vice-President)
For the appellant SN: Mr F Khan of Counsel Instructed by Goldkorn Mathias Gentle
For the claimant HM: Mr A Bukhari, Solicitor of A Z Solicitors
For the Secretary of State: Mr P Deller, Home Office Presenting Officer
SN & HM (Divorced women — risk on return) Pakistan CG
These appeals have been heard together with a view to giving some general country guidance on the position of women subject to domestic violence in Pakistan. So far as our decision deals with the general position of women in Pakistan, and the proper approach to be taken to asylum and human rights appeals in that context, it is expected that all Adjudicators and other Tribunal panels will follow the guidance set out here.
Both Counsel for the claimants below, SN and HM, made submissions first, by agreement, although HM's case is a Secretary of State appeal. Both claimants are citizens of Pakistan. The facts and the history of the appeal in each will be set out below, followed by submissions and consideration of relevant authorities and objective evidence. The Tribunal reserved its determinations for postal delivery.
SN appeals with leave against the determination of an Adjudicator (Mrs D M Thomas) dismissing her appeal against the Secretary of State's refusal to recognise her as a refugee or to grant humanitarian or discretionary protection.
Leave to appeal was granted under Article 3 alone. The Adjudicator's findings under the Geneva Convention on the Status of Refugees and Stateless Persons 1951 were comprehensive and sound. Permission to appeal was based solely on the acceptance that the husband had abused SN over a period of time, the abuse being condoned by his family. The family were said to be influential in Pakistan and the Tribunal considered it arguable that the Adjudicator might not have considered appropriately the dangers to which a woman in her position (a divorced spouse) would be exposed on return.
When granting leave, the Tribunal stated in terms: “Evidence will have to be given as to what sort of influence or political importance this family has. Also evidence will have to be given as to the actual availability of a place to go for women who have been treated in the way this claimant has.”
No effort was made to tender any new evidence for the hearing on either of these points. The Tribunal has therefore dealt with the matter on the basis of the bundle before the Adjudicator and the single copy of the Tribunal bundle filed for us. We are however concerned that experienced immigration solicitors should fail to deal with such an obvious direction, and fail to file the required three copies of the documents upon which they seek to rely at the hearing.
Fortunately, SN was present at the hearing and was able to give instructions to her Counsel, which on several points was contrary to his immediately preceding submissions. Mr Khan sought to distance himself from documents filed before the Adjudicator (First Information Reports, arrest warrants, and legal correspondence), but in answer to questions from us, he accepted that those were SN's own documents upon which she had relied throughout. The Tribunal has treated all the documents before it as genuine. The facts which emerge, so far as they can be ascertained on this unsatisfactory basis, are these.
SN is 30 years old, from Lahore. She claimed her husband was in politics, working with Nawaz Sharif and the PML. He organised meetings and rallies. He had a membership card and she thought he might have been a member. His parents lived in Pakistan, in Islamabad. Her husband is wanted for murder; he was involved in a gun fighting incident. A case was brought against him after the shooting incident in October or November 1999, to which there were witnesses, and the police and army used to call at the house, threaten them, beat up the family, tear SN's clothes, and beat her one-year-old son. Her husband was on the run.
SN fled briefly to Islamabad, and then returned to Lahore, where the problems continued. She fled again to Shedhra village, and after a couple of weeks, returned to Lahore, where the problems resumed. The police were no help at all, and told her to leave her husband. They made suggestive remarks and touched her inappropriately. She stayed living in her house in Lahore. Her husband called her to join him in Islamabad, and together the family fled to the United Kingdom, arriving in September 2000 on illegal documents. Her husband sold a lot of land and a market, which he owned.
The couple had been married for some time. Their daughter is now about twelve years old. The marriage has not been a happy one and SN's husband beat her regularly. His family took his side. Nevertheless, she came to the United Kingdom with her husband and they lived together in the United Kingdom from September 2000 until December 2001 when the final rupture occurred. She left him in January 2002 and met another man in February or March 2002, with whom she now lives. They are not married and this second relationship has no issue.
SN's marital position is confusing. The documents which she produced reveal the following chronology:
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• On 5 January 1999, SN's husband pronounced what appears to have been a single talaq, confirmed in writing, stating, “From today on I do not have any relationship with her.” The relationship resumed, and on 18 April 1999, he again confirmed in writing the pronunciation of a single talaq, stating, “From today on I do not accept her as my wife.” On 19 July 1999, there is written confirmation of a triple talaq. It is not at all clear on what basis the parties were regarded as married after that date. On 17 August 1999, there is again written confirmation of triple talaq, with the statement, “From today on I do not have any relationship with her. From today on she is free of me.” The parties continued to live together as man and wife.
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• On 5 November 1999, a FIR was filed at Lyton Road Police Station, Lahore under sections 148, 149, and 427 C D OF Criminal Act 154 (violence and damage to property) SN's husband was accused of encouraging fire setting and damaging property as part of a riot (400/500 people) against the suspension of the PML Government. The FIR contains no mention of murder or gunshots.
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• On 1 June 2000, SN filed a complaint at Ichhra Police Station Lahore, seeking legal action against police officers who came to her home at 7 am looking for her husband (Nadeem Shahzad), forced entry, beat her, tore her clothes, harassed her children and threatened her if she did not produce him. She told them he had gone to Rawalpindi for personal reasons. They did not give up looking for her husband. On 21 July 2000, SN filed a second complaint at Ichhra Police Station Lahore, complaining that policemen had entered her home by force, seeking to arrest her husband; the police beat her children and took her colour television together with R40, 000 in cash. She sought protection, and return of her goods and money.
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• The search for her husband was unsuccessful and on 23 August 2000, local police issued an arrest warrant addressed to Nadeem Shahzad directing him to present himself to Ichhra Police Station within 15 days, for violations of Pakistan Law 148, 149, 307. The Court was satisfied that he had disappeared or was in hiding to avoid receiving the warrant. He did not surrender, and was already in the United Kingdom by this stage.
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• On 22 November 2000 Newham Social Services became involved, because of police concerns about the welfare of the couple's children. The family were to be assessed by a social worker from Newham's Central Assessment Team fixed for 24 November 2000. Back in Pakistan, the authorities continued to look for SN's husband, and on 5 December 2000, a second arrest warrant was issued requiring Nadeem Shahzad to present himself within 15 days to Ichhra Police Station for violations of Pakistan Law 148, 149, 427. Again, the court was satisfied that Mr Shahzad had disappeared or was in hiding to avoid receiving the warrant.
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• Meanwhile, concerns about the family and in particular the children, continued. On 4 September 2001, Children + Families (Social Services) referred them to the Asian Women's Association for more support, and on 13 September 2001, SN was offered support by Victim Support Redbridge, after a domestic incident involving police at Ilford. On 30 November 2001, another oral talaq was issued and confirmed in writing, stating, ‘From now on I do not have any relationship with her and from today she is free.’ On 5 December 2001, her husband issued a final confirmation of triple talaq, saying again, ‘From now on I do not have any relationship with her and from today she is free.’ On 28 December 2001, after a Social Services initial assessment (Child Protection), they pronounced themselves satisfied that there were no further concerns, and closed the case file. There is no indication in the papers before us that SN has any contact now with her ex-husband, who is still in the United Kingdom.
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• 5 March 2002 Certificate of no objection by Javaid Iqbal Bhatti Advocate High Ct, 053 District Ct Lahore, indicates that SN's divorce has been accepted ‘throw consul’. After that, ‘she is independent and no objection for marriage’. At some time between January and March 2002, SN met the man with whom she is now living. There is no suggestion that her husband has interfered with or objected to her new life, or that he has anything to do...
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