England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/01178/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st January 2009

Lord Justice Scott Baker:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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".
12. 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.
13. 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.

14. 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."

15. 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.
16. It is, I think, necessary to look in a little detail at what Professor Menski's evidence amounted to on the critical questions. He begins at paragraph 7 by setting out the seven issues that he had been asked to consider. These were:


(1) the position and safety in Pakistani society of a single woman with a child born outside marriage;

(2) the views of Pakistani society towards temporary marriages practised by Shia Muslims and how these views might impact on the appellant;

(3) whether she would be able to obtain employment for herself and education for her child;

(4) whether her fear of religious extremism is well founded;

(5) whether she would be able to obtain protection from the authorities;

(6) whether she would be able safely to relocate within Pakistan; and

(7) to comment specifically on two paragraphs in the Secretary of State's refusal letter, which really relate to what happened to her when she was in Pakistan as a Shia and no longer have any significant relevance to the present appeal.

17. Dealing with issues 1 and 2, namely problems on return to Pakistan because of the existence of a child outside a temporary Shia marriage, he said this, at paragraph 23:

"[The appellant's] story of the temporary marriage may simply not be accepted and she is likely to be victimised as a result"

In the next paragraph he says:

"[she] would have to face Pakistani Muslim society without male protection"

And that in his view poses the gravest risk to her own safety and that of her child. And at [25]:

"What is not acceptable is that [Ms N] apparently does not have proof of her marriage, but has now a child from this union. She would therefore at best be treated as a divorced woman or -- and this is indeed potentially dangerous -- simply as the mother of an illegitimate child. It would of course be in [Ms N]'s own interest to provide evidence that the child was conceived during a lawful Muslim marriage. The trouble is that even if [Ms N] were to claim this, morality-obsessed traditional members of Pakistani society might not accept such assertions."

18. And on the third issue, possibilities to obtain employment and education for the child, he said at paragraph 31:

"she is now out of work and would certainly find it difficult to obtain employment again in Pakistan.

A little later:

"she will have to convincingly explain her single mother status to potential employers"

And, paragraph 33:

"[her] single status would have other tangible negative results for her child, such as refusal to be admitted to a good school."

19. And then, with regard to the fourth issue, fear of religious extremism, at paragraph 37:

"[she] would find it difficult to protect herself, on her own, in such a male-dominated society, against unwanted advances by such men, or even rape."

And in the following paragraph:

"it is indeed possible that [Ms N] could be prosecuted under the country's zina laws for immoral behaviour. While this is not immediately likely, it is a plausible danger and a considerable risk factor that [Ms N] and her family would indeed be wise to take account of, and that the Courts in this country would need to be aware of, too"

And in paragraph 39:

"The fact that [Ms N] does not have any close male relative to support and protect her adds most severely to her vulnerability"

20. And then on issue 5, protection against extremism by authorities in Pakistan, at paragraph 45:

"she claims to be afraid of fundamentalist Muslims who might object to her illegitimate pregnancy. A complete reading of the US State Department report and other objective reports on the issue would show that while there has been an effort on the part of the government to ban extremist organisations that sought to target vulnerable women, its implementation and effectiveness are clearly lacking. There is thus some plausibility in such a claim.

46. While the provisions of the controversial Hudood Ordinance of 1979 which were weighted heavily against women, are in the process of being replaced by a Women's Protection Bill, the gender inequities in Pakistani society continue unabated and it will take a long time before the improved provisions of the new Bill actually come into effect. At present, it is still in the legislative process."

And then at paragraph 52:

"[Her] fears of victimisation, thus, are not totally unfounded and her belief that nobody will take any notice of any harm to her, including the police and the state as an institution, is entirely realistic.

53. While the availability of some support in cities cannot be denied, I have already said why a respectable married woman such as [Ms N] cannot even avail herself of such support. It is my firm view that in reality state and non-state actors do not provide an adequate resource to which beleaguered women might turn.

21. And as to issue 6, possibility of relocation:

"[Ms N] as a middle class woman has very slim chances of supporting and protecting herself anywhere else in Pakistan than in the home of her mother"

For my part it does not seem to me that there is a serious issue about relocation in this case. It is realistically a question of whether the appellant can be returned to Karachi.

22. As an addendum to his report, the Professor dealt with the possibility or likelihood of obtaining Pakistani citizenship for the child. He said at paragraph 68:

"I received emergency instructions at the very last minute to the effect that [Miss N's] child would face enormous difficulties in obtaining a Pakistani passport and ID card, and later also in gaining admission to educational institutions.

69. I cannot fully confirm that this is the case. As far as I have been instructed, the child was born in the UK but has not thereby acquired British citizenship. I am also instructed that the mother does not have a marriage certificate, and the child's father is not listed on the birth certificate, so that the Pakistani embassy in the United Kingdom will not provide a passport.

70. At first sight the child is not entitled to be given a Pakistani passport or ID card since under the relevant law, the Citizenship Act of Pakistan of 1951, Article 4 excludes acquisition of Pakistani citizenship by birth because the child was not born in Pakistan.

71. In addition, however, under s.5 of the same act, which regulates citizenship by descent, it is provided that '[s]ubject to the provisions of section 3 a person born after the commencement of this Act, shall be a citizen of Pakistan by descent if his parent is a citizen of Pakistan at the time of his birth…'

72. This clearly suggests that the young child of [Ms N] has a legal entitlement to the legal status in Pakistan in the present circumstances. It may, however, well be that the Pakistani embassy will cause [Ms N] some difficulties in obtaining a passport for the child since she does not have a marriage certificate."

23. An issue with which, in my judgment, Immigration Judge Walters completely failed to engage was how he assessed Professor Menski's evidence in relation to the issue of whether what might happen to the appellant in the event of her returning to Pakistan crossed the threshold between discrimination, on one side of the line, and persecution or inhuman or degrading treatment, on the other. In my judgment Immigration Judge Walters was in error of law in failing adequately to reason his decision to explain how he dealt with Professor Menski's evidence. If, as is my view, this case is to be remitted for a reconsideration by a fresh tribunal, it seems to me that the Secretary of State may very well wish to consider whether there are a number of questions that might be put to Professor Menski, so that difficult issues can be resolved to assess the degree of risk to this particular appellant in the particular circumstances of this case.
24. Senior Immigration Judge Jordan, having said that Immigration Judge Walters was in error in his approach to section 8 of the 2004 Act but that the error was not material, went on to say that there were two other substantial grounds which he identified for consideration: he identified the first as the failure to put sufficient weight on Professor Menski's evidence and the second as not dealing properly with the alternative ground of internal relocation.
25. As I have already indicated, it is, in my judgment, on the first of those questions that it is necessary to focus, but in my judgment Senior Immigration Judge Jordan rather misstated the point in saying that the question went to weight because in reality the question was whether the earlier Immigration Judge had conducted an appropriate reasoning process at all, which in my judgment he had not.
26. In the reconsideration Immigration Judge Jordan said this, at paragraph 11:

"It seems to me however that the issue of risk on return is a question of whether or not the evidence supports the perceptions which is contained in the report of Professor Menski that the appellant would be perceived as being an immoral woman"

27. And at paragraph 12 he said:

"It seems to me that what will occur is that the appellant will return to Pakistan with a child. There will be no information about the circumstances of her marriage to Mr Uzri. It was a marriage that was not conducted in Pakistan, although as far as I am aware it was conducted lawfully in accordance with the laws of the country of its celebration. There will therefore be no means identified by the expert report establishing why the appellant will be perceived as being somebody who has formed an illicit relationship. In the course of argument I suggested that the appellant and her child might have been reduced to the position of returning to Pakistan without the father of the appellant's child as a result of his death, as the result of a formal divorce according to the laws of whatever country that divorce may have taken place or as a result of the appellant giving birth to an illegitimate child. There could be no basis upon which any outsider could determine which of those possibilities was the correct one. There will be no reason, for example, for the appellant to produce her marriage certificate in order to satisfy her neighbours as to the circumstances in which she married Mr Uzri."

28. It is to be noted that Senior Immigration Judge Jordan is proceeding on the assumption that there was indeed a valid 12-month marriage. That is contrary to the finding of fact of the earlier Immigration Judge, and it should be pointed out that this was a reconsideration on which Senior Immigration Judge Jordan heard no fresh evidence. It seems to me that there is no adequate analysis by Senior Immigration Judge Jordan as to how he is able to reach his conclusion that there is no real risk of the true position coming out. It seems to me, although one cannot be certain about this, that he may have been approaching the matter through the eyes of a person living in England, with everything and all the experience that that provides, rather than through the eyes of how the situation might be perceived in Pakistan. Immigration Judge Jordan went on, at paragraph 13:

"There is…no suggestion that her own family members would provide information which is likely to put her at risk. …it does not seem to me that the Immigration Judge was bound to find as a matter of law that the appellant will be perceived as being the mother of an illegitimate child. Accordingly if the appellant has failed to establish, she will be perceived as the mother of an illegitimate child or herself involved in past immoral behaviour then the consequences which are said to follow as a result of this position will not arise."

29. And then, at paragraph 14, a sentence to which Miss Cronin, for the appellant, takes exception:

"It is said that there is a plausible danger that the appellant would be prosecuted. It seems to me that whatever the qualifications of the expert, there can be no factual basis for saying that the appellant will be prosecuted for immoral behaviour."

Miss Cronin points out that it is not a question of whether the appellant will or will not be prosecuted. It is a question of assessment of the risk. For my part I am in some doubt that Miss Cronin may well be seeking to read too much into the word "will" in the particular circumstances in which it is used.

30. The core question seems to me to be whether the appellant, who will be returning to Pakistan with a child with no father named on his birth certificate, may be seen and treated as an immoral woman who has had a sexual relationship outside marriage. If she was ever married, it was a marriage regularised only by Shias and there is no evidence of such a marriage other than hers and, to some extent, a statement of her brother, which the first Immigration Judge disbelieved.
31. We were referred to a number of documents, in particular a Home Office operational guidance note and a US State Department report relating to Pakistan, both of which documents were very recent in relation to the date of the original hearing before Immigration Judge Walters. Miss Chan, for the Secretary of State, submits that, on careful reading, these documents take matters no further. She also observes that there is no country guidance dealing with the general question of single women with children being returned to Pakistan. It is true that there is no country guidance. Perhaps it would be helpful if there was a country guidance case dealing with issues that arise in such circumstances.
32. For my part I am satisfied that the first Immigration Judge's decision was inadequately reasoned and the matter was not rectified by the second and Senior Immigration Judge. For my part I am left in a considerable state of doubt as to what the realistic risks, if any, are to this appellant on her return to Pakistan, in particular because of the fact that she is a single mother with a child which may or may not be perceived to be illegitimate. It was certainly so perceived by the first Immigration Judge.
33. I also have had some difficulty in assessing Professor Menski's evidence and identifying which parts of it fall on which side of the dividing line between what does and does not amount to persecution for a Convention reason and inhuman or degrading treatment, on one side of the line, and what I would broadly describe as discrimination and behaviour falling short of the threshold, on the other. For my part I would set aside the decision of the Senior Immigration Judge of 1 June 2008 and remit this case to the Immigration Appeal Tribunal to be tried by a different Senior Immigration Judge. I would do so on the basis that there should be a complete re-hearing when, amongst other things, consideration can be given as to whether it would be appropriate to hear oral evidence from an expert or experts.

Lord Justice Goldring:

34. I agree.

Lord Justice Laws:

35. So do I.

Order: Appeal allowed