FS (domestic violence –SN and HM – OGN) Pakistan CG  UKAIT 00023
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 30 November 2005
Date Determination notified: 13 March 2006
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
(1) Operational Guidance Notes (OGNs) provided by the Secretary of State for the Home Department for the guidance of his caseworkers are a statement of the position taken by him at the date they were issued but must be considered in the context of subsequent evidence about the situation in the country of origin, including the information summarised in subsequent COI Reports; and
(2) The background evidence on the position of women at risk of domestic violence in Pakistan and the availability to them of State protection remains as set out in SN & HM (Divorced women– risk on return) Pakistan CG  UKIAT 00283. It appears that the current intention of the authorities is to improve State protection for such women, although progress is slow. Every case will still turn on its particular facts and should be analysed according to the step by step approach set out at paragraph 48 of SN & HM, with particular regard to the support on which the appellant can call if she is returned.
"The appellant is a citizen of Pakistan. She arrived in the United Kingdom on 18 May 2003, with her children, and claimed asylum on 22 May 2003. Her application was refused on 2 July 2003 on both refugee and human rights grounds in a notice of intention to give directions for removal from the United Kingdom, for the reasons set out in a letter dated 30 June 2003. Her appeal against that decision was dismissed by [the first Immigration Judge], in a determination issued on 29 September 2003.
The appellant was granted permission to appeal to the Immigration Appeal Tribunal (IAT) and in a determination issued on 25 January 2005, the IAT allowed the appellant's appeal in the following terms:
"9. Accordingly this appeal is allowed to the limited extent that the Immigration Judge's determination is set aside and the appeal remitted for hearing afresh by any Adjudicator other than [the first Immigration Judge]."
The appeal came before [the second Immigration Judge], on 14 March 2005. He decided that the IAT had remitted the matter to him to decide only a limited issue. That issue was as to 'the reasonableness of the appellant's relocation/internal flight outside her home area.' (Paragraph 2). He noted that the Presenting Officer agreed with him, whilst Counsel for the appellant disagreed, submitting that it was a hearing of all the issues. He allowed all aspects of the appeal in a determination issued on 1 April 2005.
Despite the submission to the second Immigration Judge by the Presenting Officer that the IAT had limited the ambit of the hearing, the respondent appealed on the ground that the IAT had remitted the matter to be heard completely afresh and had not limited the ambit of the appeal. There were also challenges to the assessment of credibility and the findings of fact. It was submitted that he reached conclusions that were speculative, not based on the evidence, and perverse. An order for reconsideration was made on 21 April 2005, in respect of all the Grounds of Appeal. It is in this way that the matter comes before us now.
Mr Johnson, Presenting Officer, relied on the grounds of appeal and did not consider that he needed to add anything further, save that he had been unable to trace any minute that showed that the Presenting Officer had agreed that the scope of the appeal was limited in the way set out in the determination. We pointed out to Mr Johnson that there was no challenge on that point in the grounds of appeal.
Mr Lemer, Counsel for the appellant, submitted that there had been no material error of law by [the second Immigration Judge]. In relation to the assessment of the evidence and the findings of fact, [the second Immigration Judge] had relied upon the findings of [the first Immigration Judge], including at paragraph 56 of the first determination, and had based his findings in the evidence, including the background evidence, for example the CIPU October 2004 and the expert report of Wenonah Lyon. Mr Lemer took us to various extracts from the first determination and the background evidence.
Mr Lemer referred us to the case of AB (Algeria – scope of remittals) Algeria  UKIAT 00323. He accepted that [the second Immigration Judge] had erred in law in that he had incorrectly interpreted the decision of the IAT. He accepted that it was clear that there was to be a full fresh hearing. He submitted that this error was not material, and that paragraphs 24 and 25 of the decision of the President in AB were authority for the proposition that in the circumstances of the case that was before us, given that the IAT had not identified any error of law in the findings of fact of the first [Immigration Judge], then there could be no error on the part of the second [Immigration Judge] in simply following the findings of the IAT in that regard.
For completeness, we set out paragraphs 23-24 of AB:
"23. Fifth, it does not follow at all from that, that upon a remittal the Tribunal should not express what issue has caused the remittal and what the [Immigration Judge] needs to focus on. Quite the contrary. There may be no fresh evidence or argument on other issues. Even where there is, it should assist the conclusions of the Immigration Judge to avoid error or at least its repetition.
24. Sixth, when an [Immigration Judge] is dealing with a remittal on such a basis, it is an error of law for him to ignore what the Tribunal has said about the issues which have not occasioned the remittal and upon which it has expressed its clear conclusion. He is expected to follow those conclusions, rather than to reopen them, unless there are good reasons for doing so. The mere fact that more evidence has been heard is not by itself sufficient; it is necessary to explain why that new evidence justifies differing from the Tribunal's conclusion on those issues. It will also be necessary to look with considerable care, even scepticism, at evidence which could and should have been before the first [Immigration Judge] or before the Tribunal."
Taking first the issue of the scope of the remittal by the IAT. We find that Mr Lemer is correct to accept that there was an error of law on the part of [the second Immigration Judge] in limiting the scope of the appeal that was before him. We are not with him, however, in his submission that it was not a material error of law. That is because it is absolutely clear from the words used by the IAT when allowing the appeal, at paragraph 9 of their determination, that not only are they deciding that there must be a completely fresh hearing before another [Immigration Judge], but in so doing, they also, in terms, set aside the determination of [the first Immigration Judge]. We find that it is not arguable that it was open to [the second Immigration Judge], through reliance on paragraphs 23 and 24 of AB, to himself rely upon the findings of the first [Immigration Judge]. We do not agree that there is support for Mr Lemer's contention to be found there. In their determination in the appeal that is before us, the IAT did not more than to highlight agreed areas of concern, and therefore areas of focus, as was mentioned in AB, but in no way can it be said that the IAT limited the issues that were to be considered by the second [Immigration Judge].
Whilst it was certainly the case that the IAT agreed with the parties that they had identified the issue of internal relocation as being key, and agreed with the parties that [the second] Immigration Judge had failed to give any, or any adequate, reasons to support certain findings of fact (paragraph 8 of their determination), it is simply not arguable that the IAT made any finding themselves or accepted that any findings of either of the Immigration Judges should stand. The IAT noted that it was not in a position to make good the deficits. Having set aside [the first Immigration Judge's] determination, in terms, and having not specified that any aspect of the determination was to stand, for our part we cannot see how it can be argued that any part of it can subsequently be relied upon. We are satisfied that, had the IAT considered it safe to remit the appeal upon a limited basis of any kind, then it would have done so, and would have set out in the clearest possible terms what the precise ambit of the further hearing was to be.
Given that Mr Lemer based his argument in relation to the other aspects of the appeal, at least in part, upon the submissions that [the second Immigration Judge] had been entitled to rely upon the findings of [the first Immigration Judge], we find that his argument cannot safely be regarded as sustainable, and we are satisfied that [the second Immigration Judge] further fell into material error of law insofar as the grounds at paragraphs 1, 2 and 3 are concerned.
Had [the second] Immigration Judge not so erred, then he may have reached a different decision. We are not in a position today to conduct a full rehearing of this appeal. We have no alternative but to direct that the matter be re-listed for a full, fresh reconsideration hearing when all matters will be at large for the AIT to consider and decide completely afresh, without reliance in any way upon the determinations of either Mr Campbell or Mr Kulatilake.
It is directed that this matter be transferred to Hatton Cross Hearing Centre."
"Women are only placed in Government refuges following a magistrates' order; there is nothing to suggest that the appellant would receive such an order, absent a renewal of violence against her."
Determination and reasons
"48. The same CIPU Country Report accepts that internal flight options are limited for women, but it does not state that there are no internal flight possibilities and each case will depend on its own particular factual matrix. We find that some support is available in the cities, and we also consider the geographical scale of Pakistan (covering an area of about 307,374 square miles, with a population of 140,470,000); the question of internal flight will require careful consideration in each case. The general questions which Adjudicators should ask themselves in cases of this kind are as follows –
(a) Has the claimant shown a real risk or reasonable likelihood of continuing hostility from her husband (or former husband) or his family members, such as to raise a real risk of serious harm in her former home area?(b) If yes, has she shown that she would have no effective protection in her home area against such a risk, including protection available from the Pakistani state, from her own family members, or from a current partner or his family?(c) If yes, would such a risk and lack of protection extend to any other part of Pakistan to which she could reasonably be expected to go (Robinson  EWCA Civ 2089, AE and FE  UKIAT 05237), having regard to the available state support, shelters, crisis centres, and family members or friends in other parts of Pakistan?
49. The appeal should be allowed under the Refugee Convention or Article 3 ECHR only if, on the facts as at the Adjudicator or Tribunal hearing, having regard to the background evidence and jurisprudence, a positive answer can be given to each of these questions."
"1.1 This document summarises the general, political and human rights situation in Pakistan and provides information on the nature and handling of claims frequently received from nationals/residents of that province. It must be read in conjunction with the CIPU Pakistan Country Report April 2005 and any CIPU or COI Service Pakistan bulletins.
1.2 This document is intended to provide clear guidance on whether the main types of claim are or are not likely to justify the granting of asylum, Humanitarian Protection or Discretionary Leave"
"3.8.8 The Pakistani authorities have not demonstrated a willingness or ability to punish or deter those who abuse their wives, and therefore cannot be considered to provide sufficient protection to wives in fear of domestic violence."
"3.8.9 Internal relocation. The Pakistani law provides for freedom of movement, foreign travel, emigration and repatriation however, the Government limited this in practice. Taking into account the general position of women in Pakistani society where they are subordinate to men, may not be educated or even literate, and may have to depend on relatives for economic support internal relocation may be unduly harsh for women who are genuinely fleeing a serious risk of serious domestic violence. Factors such as the social and professional background of the individual claimant should be considered when determining relocation as an option. Educated and professional women may however find it possible to support themselves in alternative locations…
3.8.11 Conclusion. As noted above, case law has confirmed that Pakistani women are members of a social group within the terms of 1951 Refugee Convention. Asylum claims from Pakistani women who have demonstrated that they face a serious risk of domestic violence which will amount to persecution or torture or inhuman or degrading treatment must be considered in the context of individual circumstances of each claim. In individual cases a sufficiency of protection by the state authorities may not be available, and although internal relocation may be possible in some circumstances, where it is not, a grant of asylum will be appropriate."
6.143 The US State Department Report 2004 (USSD), published on 28 February 2005 recorded that:
"Domestic violence was a widespread and serious problem. Husbands frequently beat, and occasionally killed, their wives, and often newly married women were abused and harassed by their in-laws. Dowry and family-related disputes often resulted in death or disfigurement through burning or acid…During the year, there were 193 cases of stove deaths, many of these related to disputes with in-laws.6.144 Following allegations of abuse at a woman's shelter in Hyderabad, the Integrated Regional Information Networks (IRINNEWS.ORG) reported on 16 August 2004 that "Human rights activists have called for drastic reforms in the existing structure of the state-run women's shelters across the country." The article further reported that:According to the HRCP [Human Rights Commission of Pakistan], one out of every two women was the victim of mental or physical violence. The National Commission on the Status of Women has called for specific domestic violence legislation. In its absence, abusers may be charged with assault, but cases rarely were filed. Police and judges were reluctant to take action in domestic violence cases, viewing it as a family problem. Battered women were usually returned to their abusive family members. Women were reluctant to pursue charges because of the stigma attached to divorce and their economic and psychological dependence on relatives. Relatives were reluctant to report abuse for fear of dishonoring the family reputation."
"In a conservative society like Pakistan, where 70 to 80 percent of women, according to HRW [Human Rights Watch], face domestic violence in the form of physical, sexual and verbal abuse, such centres were established to give women support in their hour of need. But such essential services need proper support, activists maintain."Existing state-run women's refuge centres are like 'dumping places' and sub-prisons. Once a woman enters, she can't leave without obtaining a court order," Khalida Saleemi, director of Struggle for Change (SACH), an NGO working for the rehabilitation of violence victims, told IRIN in the Pakistani capital, Islamabad.6.145 The IRIN report also noted that:"Counselling is one of the most critical needs of women in refuge centres as all of them live under stress, but, none of these abodes have in-house councillors," Saleemi said, adding that the government should arrange proper medical and psychiatric services for physically injured and emotionally disturbed women."
"The protection and safety of women in refuges has always been a critical issue. Religious conservatives have often raised concerns over the security situation in these centres and have accused those running such facilities several times of exploiting female residents. Allegations that stem from cultural norms that define a woman's place as being in a male-dominated household.Additionally, rights activists observe that the rules for visitors are also often violated. In some cases, people are allowed to go inside the shelters without formal permission from the designated authority. While on the other hand, human rights workers are denied access."Assistance available to women6.158 The US State Department Report 2004 (USSD), published on 28 February 2005, stated that:
"The Government has criticized violence against women. Its Crisis Center for Women in Distress refers abused women to NGOs for assistance. During the year, the NGO Struggle for Change, which operated a shelter for abused women, provided rehabilitation assistance (shelter, employment counseling, and legal aid) to 67 women. An additional 157 women received legal or financial assistance. Provincial governments operated shelters for women in distress at the district level. In some cases, managers of such shelters have abused women in their care."
The original Tribunal made a material error of law.
The following decision is accordingly substituted:
1. The appeal is dismissed on asylum grounds
2. The appeal is dismissed on human rights grounds.
Signed Dated: 19 February 2006
Mrs J A J C Gleeson
Senior Immigration Judge
Authorities considered -
1. SN and HM (Divorced women – risk on return) Pakistan CG  UKIAT 00283
2. MG (assessing interference with private life) Serbia and Montenegro  UKAIT 00113
Personal documents relating to this Appellant –
3. Medical report of Dr J Taghipour, [ 27 June 2003]
4. Doctor's letter from Dr Mansoor Ahmed of Jamil Hospital, Lahore, confirming that he treated the appellant in January-February 2001
5. First Information Report dated 3/1/2001 recording appellant's complaint to police about attack on her on 2/1/2001
6. Death certificates for appellant's father [died 18 December 2001] and mother [died 15 March 2002], both obtained 5 August 2003.
7. Skeleton argument of Mr Chirico [13 March 2005]
8. Chronology of events
9. Appellant's statement [25 February 2005]
10. Expert report of Dr Wenonah Lyon [September 2003]
Country background documents-
For Secretary of State –
11. Pakistan Country of Origin Information Service Report (October 2005)
12. Statement by Mrs Nilofar Bakhtiar (Advisor to the Prime Minister and In-Charge, Ministry of Women Development) on behalf of Pakistan Permanent Mission to United Nations, March 2 2005, on "Women 2000: Gender Equality, Development and Peace for the 21st Century" given at the High-Level Plenary Meeting of the 49th session of the Commission on the Status of Women.
13. Pages downloaded from website of Soc for Human Rights and Prisoners' Aid (SHARP) a Non-Governmental Organisation registered with its headquarters in Islamabad, Pakistan.
14. Home Office Operational Guidance Note Pakistan 01/07/2005
15. U S State Department Report for Pakistan, 2004 [published 28 February 2005]
16. Amnesty International Annual Report 2005
17. Amnesty International article "Pakistan Insufficient Protection of Women" 
18. Human Rights Watch annual report 2005
19. Human Rights Watch articles: "Pakistan's moderates are beaten in public" , "Forms of Violence against Women in Pakistan"  and "Letter to Colin Powell on Women's Rights and Democracy" 
20. Human Rights Commission of Pakistan Article "Women Leaders' Manhandling Shameful" 
21. Crescent Life article "Is domestic violence endemic in Pakistan?"
22. Tel Med Pak article on domestic violence 
23. Articles on acid attacks and violence against women in Pakistan [various]
24. Human Development Foundation article on domestic violence
25. EPIC Project Information on parties and candidates