European Court of Human Rights

FOURTH SECTION

Application no. 39328/08
by Farzana KHAN
against the United Kingdom
lodged on 13 August 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Farzana Khan, is a Pakistani national who was born in 1973 and lives in Clapham.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant and her children arrived in the United Kingdom on 18 December 2004 and claimed asylum on 22 December 2004. On 21 February 2005 the applicant’s asylum claim was refused. However, on 3 June 2005 the appeal was allowed. The Immigration Judge found as a fact that the applicant was credible and had been the victim of domestic violence, who was not and would not have been protected by the State. The House of Lords in Shah and Islam (see below) had found that victims of domestic violence in Pakistan were a persecuted “social group”. The applicant’s asylum and human rights appeals should be granted because she faced a real risk of being killed if she were returned to Pakistan.

The Secretary of State appealed against this decision, alleging that the Immigration Judge had failed to take into account the Country Guidance case of SN and HM [2004] UKIAT 00293 (see below) and failed adequately to consider the question of internal relocation. On 7 November 2005 the Asylum and Immigration Tribunal (“AIT”) found an error of law on the grounds that the Immigration Judge had failed to have regard to the Country Guidance case of SN and HM, or had failed to give reasons why he had declined to follow its guidance regarding the assessment of internal flight. It was also alleged that the Immigration Judge had failed adequately to consider relevant factors in his assessment of risk on return such as the impact of a First Information Report and the ability of the applicant’s family to give her assistance with relocation on return. The AIT considered that further findings would need to be made in respect of internal relocation and undue hardship and adjourned the case for reconsideration.

On 21 March 2006 the AIT reconsidered the applicant’s case. They accepted the Immigration Judge’s finding that the applicant was credible, had been a victim of violence from her husband over a period of time and had sought assistance from two shelters in Lahore which had refused to help her. The AIT observed that:

“killings by husbands are commonplace in Pakistan. This fact combined with a corrupt police force, open to influence by a man who has powerful friends, as has the appellant’s husband, has the result that we are driven to find there is a serious risk that in the appellant’s home area there will not be a sufficiency of protection.”

In addition it was also noted that, if the applicant were arrested by the police in her home area as a result of the First Information Report filed by her husband, she might well face torture and rape at the hands of the police and thus her rights secured by Article 3 would be breached. Nevertheless, the AIT concluded that it was open to the applicant to relocate to another area in Pakistan. In this regard it was noted that the applicant had failed to show that a system existed within Pakistan as a whole whereby someone accused of adultery or theft could be identified. Although it was considered unlikely that the applicant would readily find employment in Pakistan, the applicant could be maintained by her brother in another part of Pakistan without her location being revealed.

On 5 October 2006 the applicant submitted further representations. On 6 November 2007 the Secretary of State refused those representations.

B.  Relevant domestic law

The leading domestic decision on the position of women in Pakistan is Shah and Islam [1999] Imm AR 283, HL. In this case the House of Lords found that women in Pakistan were unprotected by the State and that discrimination against women in Pakistan is both partly tolerated by the State and partly sanctioned by it.

Case law in this area was further developed in SN and HM Pakistan CG [2004] UKIAT 00283 in which the AIT set out guidelines relating to the option of internal flight for women in Pakistan:

“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 he 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 [1997] EWCA Civ 2089, AE and FE [2002] UKIAT 036361), having regard to the available state support, shelters, crisis centres, and family members or friends in other parts of Pakistan?”

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention that if she were returned to Pakistan her husband would find her and kill her. She also claims that her children will be promised in marriage to her husband’s nephews.

QUESTION TO THE PARTIES

Would there be a violation of the applicant’s rights under Articles 2 and/or 3 of the Convention if she were returned to Pakistan?