Upper Tribunal (Immigration and asylum chamber), 2016-02-02, [2016] UKUT 67 (IAC) (SM and MH (lone women – ostracism) (CG))

JurisdictionUK Non-devolved
JudgeUpper Tribunal Judge Gleeson, Upper Tribunal Judge Kebede
StatusReported
Date02 February 2016
Published date23 February 2016
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal Number[2016] UKUT 67 (IAC)
Hearing Date21 May 2015
Subject Matterlone women – ostracism) (CG




Upper Tribunal

(Immigration and Asylum Chamber)


SM and MH (lone women – ostracism) Pakistan CG [2016] UKUT 00067 (IAC)


THE IMMIGRATION ACTS



Heard at : Field House

Sent to parties on:

On : 21 May 2015



…………………………………



Before



UPPER TRIBUNAL JUDGE GLEESON

UPPER TRIBUNAL JUDGE KEBEDE



Between


s m

MH

(ANONYMITY order made)

Appellant

and


SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:


For the Appellant: Mr C McCarthy, instructed by Paragon Law

For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer


  1. Save as herein set out, the existing country guidance in SN and HM (Divorced women – risk on return) Pakistan CG [2004] UKIAT 00283 and in KA and Others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC) remains valid.

  2. Where a risk of persecution or serious harm exists in her home area for a single woman or a female head of household, there may be an internal relocation option to one of Pakistan’s larger cities, depending on the family, social and educational situation of the woman in question.

  3. It will not be normally be unduly harsh to expect a single woman or female head of household to relocate internally within Pakistan if she can access support from family members or a male guardian in the place of relocation.

  4. It will not normally be unduly harsh for educated, better off, or older women to seek internal relocation to a city. It helps if a woman has qualifications enabling her to get well-paid employment and pay for accommodation and childcare if required.

  5. Where a single woman, with or without children, is ostracised by family members and other sources of possible social support because she is in an irregular situation, internal relocation will be more difficult and whether it is unduly harsh will be a question of fact in each case.

  6. A single woman or female head of household who has no male protector or social network may be able to use the state domestic violence shelters for a short time, but the focus of such shelters is on reconciling people with their family networks, and places are in short supply and time limited. Privately run shelters may be more flexible, providing longer term support while the woman regularises her social situation, but again, places are limited.

  7. Domestic violence shelters are available for women at risk but where they are used by women with children, such shelters do not always allow older children to enter and stay with their mothers. The risk of temporary separation, and the proportionality of such separation, is likely to differ depending on the age and sex of a woman’s children: male children may be removed from their mothers at the age of 5 and placed in an orphanage or a madrasa until the family situation has been regularised (see KA and Others (domestic violence risk on return) Pakistan CG [2010] UKUT 216 (IAC)). Such temporary separation will not always be disproportionate or unduly harsh: that is a question of fact in each case.

  8. Women in Pakistan are legally permitted to divorce their husbands and may institute divorce proceedings from the country of refuge, via a third party and with the help of lawyers in Pakistan, reducing the risk of family reprisals. A woman who does so and returns with a new partner or husband will have access to male protection and is unlikely, outside her home area, to be at risk of ostracism, still less of persecution or serious harm.


DECISION AND REASONS


  1. The appellant is a citizen of Pakistan from the Lahore area, born on 12 January 1983. She first entered the United Kingdom on a visit visa in September 2004, returning to Pakistan in October 2004. She then returned to the United Kingdom on a further visit visa on 11 April 2006, but did not embark for Pakistan when it expired in October 2006. The appellant remained in the United Kingdom as an overstayer.

  2. In April 2010, after living in the United Kingdom unlawfully for 3½ years, the appellant claimed asylum. The basis of the appellant’s asylum claim was that she had a child (now three children) by a man other than her estranged husband, whom she had met in the United Kingdom, and that if she returned to Pakistan, she feared that her husband would kill her. She asserted that because her estranged husband’s family was rich and powerful, she could not relocate safely to another part of the country. The appellant stated that she had tried contacting two women’s organisations to see whether she could seek shelter in her home area of Lahore, but they advised her that they had no space available and could not help her.

  3. The respondent refused the appellant’s asylum claim on 10 May 2010 and on 12 May 2010 decided to remove her from the United Kingdom as an overstayer.

Procedural history

  1. The appellant and her partner appealed the respondent’s May 2010 decision to refuse them leave to remain: their appeal was heard in the First-tier Tribunal on 30 June 2010 and dismissed on 2 July 2010. Although the First-tier Tribunal accepted the core account as it then stood as credible, the First-tier Tribunal Judge considered that an internal relocation option was available to the appellants, away from Lahore, and dismissed the asylum and humanitarian protection appeals on that basis.

  2. Counsel for the appellants accepted that arguments under Articles 2 and 3 ECHR must stand or fall with the asylum claim. As regards Article 8 ECHR, the appellants’ Counsel conceded that as they would be removed together, he could not realistically argue that the decision under appeal represented a disproportionate breach of their Article 8 ECHR family and private life rights. No paragraph 395C factors were identified which could lead to a different outcome and that argument also was not pressed before the First-tier Tribunal. The appellant’s partner did not challenge the dismissal of his appeal and accordingly that element of the First-tier Tribunal decision stands unchallenged.

  3. The Upper Tribunal granted permission to appeal on 21 December 2010 after an out of time application made by the appellant alone, in September 2010. The appellant contended that she had been ill-served by her former solicitors. The basis of the grounds of appeal was that the illegitimacy of her son put both the appellant and the child at risk on return. The appellant relied on KA and others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC) which had been published on 14 July 2010. On 30 March 2011 Deputy Upper Tribunal Judge Alis dismissed the appeal, finding there to be no material error of law in the First-tier Tribunal’s decision.

  4. The Court of Appeal granted the appellant permission to appeal on 4 August 2011 and the appeal was remitted to the Upper Tribunal, by consent, for a fresh hearing on the basis that the question of ostracism of the appellant as a lone mother with an illegitimate child had not been properly considered. On 11 June 2013, Upper Tribunal Judge Gleeson formally held that there was an error of law in the previous Upper Tribunal decision and gave directions for the decision to be remade in the Upper Tribunal.

  5. At a case management hearing on 26 September 2013, the respondent purported to withdraw the underlying decision from May 2010, since the appellant was then pregnant with her second child. The appellant’s Counsel relied on paragraph 17(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (S.I. 2008/2698) and argued that the Upper Tribunal should not accept the withdrawal of the respondent’s case in this appeal, particularly in the light of the identification of this appeal as a potential country guidance decision. On 30 January 2014, a panel of the Upper Tribunal refused to accept the respondent’s withdrawal, as no new decision was available. The Upper Tribunal directed that the appeal be listed for a further Case Management Review after 3 months, and that if by that date, no fresh decision was available, the appeal should proceed. No new decision was made on the appellant’s changed circumstances (she is now the mother of 3 children by her partner, all born in the United Kingdom, after many miscarriages).

  6. The Upper Tribunal gave directions for hearing on 3 October 2014 and the appeal was heard on 21 May 2015. In the intervening period, any doubt as to the appellant’s partner being the parent of all her children had been resolved and the respondent no longer disputes either the relationship between them or his status as the children’s father.

  7. We therefore proceed to remake the decision afresh. This is the decision of the Tribunal, to which we have both contributed.

The country guidance issue

  1. When remitting this appeal, the Court of Appeal indicated that it might be desirable for there...

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