SN (Pakistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Lord Justice Goldring,Lord Justice Laws |
| Judgment Date | 21 January 2009 |
| Neutral Citation | [2009] EWCA Civ 181 |
| Date | 21 January 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/1856 |
[2009] EWCA Civ 181
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/01178/2007]
Before: Lord Justice Laws
Lord Justice Scott Baker and
Lord Justice Goldring
Case No: C5/2008/1856
Ms K Cronin (instructed by Wilson & Co) appeared on behalf of the Appellant.
Ms S Chan (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Lord Justice Scott Baker:
This is an appeal against a reconsideration by Senior Immigration Judge Jordan, handed down on 1 June 2008, whereby he concluded that the Immigration Judge at the original appeal, Immigration Judge Walters, had made no error of law in his decision on 26 April 2007 when he rejected the appellant's asylum and human rights appeals and claim for humanitarian protection, and directed that Immigration Judge Walters' determination of the appeal should stand.
The appellant is a citizen of Pakistan aged 34. She arrived in the United Kingdom on 4 July 2006 and was granted six months' leave to enter. She had a five-year multiple visit visa and had previously entered the United Kingdom on other occasions and complied with entry instructions. The visa she has expires on 11 November 2010. It should be made clear that there is no evidence or suggestion that she has in any way been in breach of immigration law.
On 25 October 2006 she made a further application for leave to remain as a student. This was refused, or deemed to have been refused, the following month and after refusal she claimed asylum at the Asylum Screening Unit on 21 November 2006. The Secretary of State refused her asylum claim on 16 January 2007, and on the same day refused to vary her leave to remain in the United Kingdom. She appealed, and the appeal in due course, as I have said, came before Immigration Judge Walters.
The nature of her claim is that she is a Shia Muslim and claims that she would be at real risk of persecution if she returns to Pakistan as a single woman with a small child that will be perceived as illegitimate. The child was born on 25 February 2007 and so is now nearly two. In this appeal the decisions of both Immigration Judge Walters and Senior Immigration Judge Jordan are attacked: the former because he made an error or errors of law; the latter because he himself made an error of law in failing to identify the error or errors of law made by the former.
The first string to the appellant's bow is her claim that in 2004 or thereabouts, while working in an executive position as a banker in Pakistan, she was sexually harassed and verbally abused on the streets by extremists. In September 2004 extremists entered her workplace and caused tension. Immigration Judge Walters found that none of the incidents complained of while in Pakistan amounted to persecution. The appellant had failed to show that these were more than the random actions of individuals. No complaint can be made about that finding.
The second and main string to the appellant's bow relates to the fear of persecution on return as a single mother. Immigration Judge Walters described this as the main thrust of her claim. He found that women in Pakistan with an illegitimate child or children would be capable of forming a particular social group. The appellant's evidence was that, when she was in the United Kingdom, she met up with Mr Ali Uzri, a former classmate of hers, who arranged a job for her at the same bank that he worked for in Dubai. In April 2006 she moved to Dubai and they began to live together.
After a week or so, she said they decided to enter into a temporary marriage for a period of one year, known as a “nikah mut'ah”, which they did. In June 2006 the appellant discovered that she was pregnant, and she and Mr Uzri travelled to the United Kingdom to meet both families. The relationship broke up when Mr Uzri suggested that the appellant should have an abortion, a proposal with which she disagreed. Mr Uzri thereafter disappeared from the scene, returning to Dubai and thence apparently to Iraq, of which he is said to be a citizen. On 25 February 2007 the appellant gave birth to a son. No father is named on the birth certificate.
The nikah mut'ah was said to have been obtained by a mulana, a religious leader, over the telephone, in a call from Dubai to the United Kingdom in April 2006. The appellant gave evidence of this phone call, saying Mr Uzri's mother had given Mr Uzri the mulana's phone number.
The only other evidence about the temporary marriage was from the appellant's brother, in the form of a witness statement, in which he says he learned of it in February 2006, when the appellant and Mr Uzri came to London. There was thus a discrepancy about the date of the temporary marriage.
Immigration Judge Walters said he did not believe the appellant's evidence as to the way the temporary marriage was conducted. The only other aspect of the appellant's evidence that Immigration Judge Walters did not accept was that there was a chance Mr Uzri might marry her at any time after July 2006 and she felt that that was a possibility. She was, of course, as at July 2006, according to her evidence, already married to Mr Uzri but for one year only.
A puzzling feature of Immigration Judge Walters's decision is what he found in relation to the provisions of section 8 of the Asylum and Immigration Act 2004. Section 8(5) provides that if a claimant fails to make an asylum or human rights claim before being notified of an immigration decision, this is to be taken into account as damaging the claimant's credibility “unless the claim relies wholly on matters arising after the notification”.
Did Immigration Judge Walters treat the appellant's credibility as damaged and, if so, in what respect or respects? The reader of his determination is left to some extent in the dark but the only two matters on which he did not believe her were: (1) whether she was married to Mr Uzri; and (2) whether she believed after July 2006 that he would marry her. Neither finding seems to me to damage her asylum or human rights claims, which turn on what may happen to her if she is returned to Pakistan. In the result the Immigration Judge's somewhat bizarre reference to section 8, if and insofar as it was an error, seems to me not to have been a material error. That is the conclusion that was subsequently reached by Senior Immigration Judge Jordan.
The real attack on Immigration Judge Walters' analysis relates to the analysis, or rather the lack of it, of Professor Menski's evidence. Professor Menski is an expert who had produced a detailed written report, but who did not give oral evidence. Professor Menski warranted, in my judgment, rather more than the brief mention that he received on just three occasions in Immigration Judge Walters' determination. At paragraph 12 he explained, following Professor Menski's evidence, that a temporary marriage of one year is known among Shias as a “nikah mut'ah”. At paragraph 36 he accepted the Professor as an expert, saying that temporary marriages were not accepted by Sunnis and that the appellant's story of being a party to a temporary marriage may simply not be accepted in Pakistan by some people; and that she is likely to be victimised as a result. She has no male relations to whom she is in a position to turn for protection. The Immigration Judge then made this finding at paragraph 37:
“I did not accept there was a real risk that the appellant would be subjected to persecution if she returned to her mother's home in Karachi”
He then went on to describe the international lifestyle of her family over the years, and that she would be able to get a job in IT in any large bank in a Pakistani city, though in my judgment it is difficult to see the relevance of this other than to a possible issue of internal relocation in the event of persecution or a real risk of it in Karachi, the city with which the appellant has real connections. The third and final reference to Professor Menski is at paragraph 43, concerning section 5 of the Citizenship Act of Pakistan, which entitles the appellant's son to Pakistani citizenship. Professor Menski's evidence was, as I have said, in the form of a detailed statement. He did not give oral evidence.
The conclusion of Immigration Judge Walters is set out essentially in paragraph 40 when he said:
“I did not accept that anyone would find out about [the appellant's] son's illegitimacy unless they were told of it. I thought it unlikely that they would be so told. If, by some misfortune, it was discovered then I would find that the Appellant could reasonably be expected to move to another large city in Pakistan where she was not known. Considering the Appellant's educational qualifications I did not find that such a relocation would be unduly harsh.”
The determination of Immigration Judge Walters really raises to my mind two fundamental questions: first, did he address the principal points that were made by Professor Menski? And secondly, is there a legally sufficient basis that there is no risk of the true position coming out? I have been driven to the conclusion, having considered the matter with some care, that this was an inadequately reasoned decision on the part of Immigration Judge Walters and that his finding that there was no risk of the true position coming out is not one that can properly be sustained.
It is, I think, necessary to...
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