England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Hanson

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2018

Lord Justice Hamblen :

Introduction

1. This is an appeal against the Upper Tribunal's ("UT") determination of 22 July 2015 which allowed the appellant's appeal against the decision of the First-tier Tribunal ("FTT") of 3 December 2013 which dismissed the appellant's appeal against the Respondent's refusal of his asylum claim by a refusal letter ("RL") dated 19 February 2013.
2. The issue on the appeal is whether the UT erred in law in deciding to remit the case back to the FTT rather than remaking the decision itself and allowing the appeal. The appellant contends that no outstanding legal issues remained such as to require further amplification of the facts, with the result that the UT was bound to substitute the FTT's decision and allow the Appellant's appeal outright, without the need for a further hearing.

Factual and procedural background

3. The appellant is a national of Pakistan and previously lived in the Sheika Bur Luv-e Darya village in the Jhelum district of the Punjab. He first entered the United Kingdom on 10 April 2010 with valid leave to enter as a student. After his leave expired on 16 August 2011 the appellant remained as an overstayer and eventually made a claim for asylum on 17 September 2012. He relied on three grounds for doing so, but the only one now relevant is whether he was at risk of an honour killing due to the fact that he had entered into an agreement to marry which he had reneged from.
4. In the RL the respondent stated as follows in relation to this ground of claim:

"14. In October 2009 you state that you got engaged to your cousin Waheeda Bibi. The engagement was arranged and you did not know the girl but did not want to disrespect your father so agreed to marry her. It was a verbal agreement, no rings had been exchanged so it was not definite….

15. By your own evidence you have stated that it was a verbal agreement, no rings had been exchanged so it was not definite ... there is no evidence to support your claim that you were engaged to Waheeda however by your own evidence you had willingly agreed to marry her and it was merely a verbal agreement ... and therefore given the low standard of proof required it is accepted that you had agreed to become engaged to Waheeda.

…..

18. You believe that you were attacked because the Waheeda's family assumed that you did not want to marry Waheeda. It is not understood why, if the family assumed that you did not want to marry Waheeda that they would harass or intimidate you into marrying their daughter by having two men attack you but not tell you that this is the reason that you were being attacked, or why they would choose to pretend that the attack was to do with your political affiliations. It is considered that as the engagement was arranged by family members, that if Waheeda's family were in doubt as to whether you were still wanting to marry her then as family members they would simply ask rather than create a charade of having you attacked by strangers who then pretended that the attack was because of your allegiance to N League.

….

24. You have submitted an expert report dated 22 November 2012 written by Christoph Bluth. .… It is noted at section 5 of the report that the author has given general background information regarding families who disapprove of marriages stating that this is relevant to this case as family honour is at the centre of it. However as noted above, you have stated the marriage arrangement was not definite, nor was there disapproval of the proposed marriage. For the reasons noted above it is not accepted that you are being persecuted because you refused to marry Waheeda nor is it accepted that you are the target of an honour killing. Other than the threatening emails from Mustafa demanding you repay him his money you have offered no evidence that you are being persecuted in the name of honour.

….

30. You claim that Waheeda's uncle is a super constable in the police and if you try to live somewhere else he will find you. Additionally you claim that Waheeda's family are wealthy and they will hold a grudge against you ... you have submitted no substantive evidence to support your claim that he is a super constable, nor have you offered any evidence that this uncle would want to find you ... as previously noted it is not accepted that Waheeda's family has a grudge against you and therefore taking your claim at its highest, and accepting that Waheeda's uncle is a super constable it is not accepted that the family have a grudge against, nor is it accepted that they are actively perusing a fine (sic) from you, it is considered that you could if you wanted to move away and relocate to another area ... in conclusion, taking your claim at its highest, it is considered that there is a sufficiency of protection in Lahore and it would not be unreasonable to expect you to relocate there."

5. The appellant appealed against the refusal of his asylum claim and his appeal was first heard by the FTT on 30 April 2013. In support of his appeal, the appellant relied upon an expert country report of 19 April 2013 from Professor Christoph Bluth (Professor of International Studies at Leeds University), which stated as follows in relation to the risks arising from breach of a verbal agreement to marry:

"5.2.14 ... in relation to the engagement, at paragraphs 14 and 15 of the reasons for refusal letter ... I can say that the statement of the Home Office is absurd ... the exchange of rings is not necessary and does not occur necessarily even in informal ceremonies where the religious element is the critical element. In relation to honour crimes, it is not material whether the engagement was 'definite' or just a 'verbal agreement'. It is the verbal agreement ... that constitutes the essence of engagement. The violation of the honour is a matter of perception; it is often based on suspicion rather than definite facts. For example, in cases of blasphemy or alleged adultery that give rise to honour killings, there is often no evidence that any offence has occurred. There is no question that breaking a verbal agreement can be taken as seriously as reneging on a more formal engagement".

6. In relation to the issue of internal relocation and sufficiency of protection, Professor Bluth stated:

"5.2.4 In Pakistan honour killings ... often find support in Pakistani society, especially in rural areas. It is estimated that there (are) more than 10,000 honour killings in Pakistan every year ...

5.2.5 Honour killings mostly go unreported and most of them go unpunished. The police usually takes the side of the men who perpetrate these acts and killers are rarely prosecuted ... honour killings have long been crimes under Pakistan's criminal code. But there has been a systematic failure by the state to end honour killings, to investigate them and hold the perpetrators to account. Successive Pakistani governments have failed to engage in sustained and serious efforts to overcome culturally conditioned attitudes to such crimes as honour killings ...

5.2.6 There is a large body of anecdotal evidence that sufficiency of protection is not available in Pakistan for persons who are targets of honour killings. It is common knowledge in Pakistan that the police cannot be relied upon to side with and support the victims of efforts to kill them in the name of honour. Indeed, given the prevailing attitude towards honour killings and the general level of corruption of the police, the appellant would not be wise to rely on this idea. Amnesty International reported: 'the isolation of women is completed by the almost total absence of anywhere to hide. There are few women's shelters, and a woman attempting to travel on her own is a target for abuse by police, strangers or male relatives hunting her. For some women suicide appears the only means of escape'. The husbands whose wives are deemed to have insulted the honour of their families by the unapproved marriage are also subject to attack or even murder.

5.2.7 Although much of the literature on honour killings emphasizes the threat it poses to women, men are also at significant risk ...

5.2.8 A country risk assessment from Jane's (is) to the effect that the police force has become steadily politicized over the years and that corruption is rife in the service. The report refers to public perception surveys according to which the police is the most corrupt of all services ...

5.2.11 Although the Pakistani judicial system is substantially based on the legal system inherited from the British, it does not function as it ... does in the United Kingdom because of endemic corruption, the conflict with customary laws and a completely different understanding of the purpose of the judicial system ...

5.2.12 ... the notion that the appellant could approach the authorities to assist with any problems in relation to the threat of an honour killing flies in the face of what is known about the situation (in) Pakistan and the response of the Police and other authorities to honour crimes. Likewise internal relocation is not safe in a society that is so rigidly divided into tribal areas.

5.2.13 The Appellant's situation is exacerbated by the fact that Waheeda's uncle, Muhammed Raja Saeed is a very senior figure in the police at Sadar police station, Jhelum (Senior Divisional Police Officer)".

7. Professor Bluth's conclusion was:

"7. Conclusion

... my assessment is that the overall narrative presented by the appellant is plausible and that he will face a serious risk of being harmed if he relocates to Pakistan. Neither the Police nor any other authorities can be relied upon to protect him. The Appellant's appreciation of the seriousness of the threat he faced is fully justified"

8. On 7 May 2013, the FTT dismissed the appellant's appeal. The appellant was, however, subsequently granted permission to appeal to the UT by the FTT, who on 8 July 2013 allowed his appeal and remitted his case for re-hearing by the FTT.
9. On 12 November 2013, the FTT re-heard the case and heard oral evidence from the appellant. In the course of the hearing, the appellant again relied upon Professor Bluth's expert report of 19 April 2013, in addition to his supplementary expert report of 2 November 2013. During closing submissions, as noted by the FTT at [55] of their determination, the respondent's Presenting Officer, Mr Lloyd, stated that the contents of Professor Bluth's reports were "not challenged".
10. On 3 December 2013, the FTT dismissed the appeal. The determination included the following findings:

"29. Within the [reasons for refusal letter] the Secretary of State's representative conceded … that a verbal agreement had been reached between the two families in 2009 that he would marry Waheeda.

….

51. In respect of the Appellant's fear that he may be made the subject of an honour killing because he has breached the family honour by failing to pursue his proposed marriage to Waheeda Bibi I find that there was some sort of agreement between the two families that a marriage in due course would take place. This, in any event is conceded by the Respondent and I am satisfied that the arrangements described by the Appellant are in accordance with cultural norms. He described how his father's uncle, Abdul Islam had brokered the agreement with a view to uniting two parts of the same extended family.

52. At the outset the Appellant simply took his lead from his father. Although he claimed to be aware of the existence of Waheeda's family he knew nothing about them – their respective families did not visit each other – he had never been formally introduced to Waheeda and claimed that he had never seen her unveiled and had not been shown a photograph of her. I therefore find that, at most, there was an informal agreement between the two sides of the family about the marriage at some point in the future but there had been no formalities in connection with the arrangement.

….

54. … I have therefore formed the view and find that some preliminary negotiations had taken place with regard to a marriage between the Appellant and Waheeda Bibi but nothing finalised or formally agreed. On that basis I am not satisfied that the Appellant would have been dishonouring Waheeda's family by indicating some time later that he did not wish to go through with the arrangement.

55. In reaching my findings in respect of this aspect of the Appellant's claim I have taken full account of the expert opinion of Professor Bluth which was not called into question by the Respondent. Insofar as the issue as an exchange of rings is concerned, Professor Bluth addresses this at paragraph 5.2 of his report where he states –

"From personal experience and working on many different cases in relation to honour crimes I can say that the statement by the Home Office is absurd. In the first place and exchange of rings is not necessary and does not occur necessarily even in informal marriage ceremonies where the religious element is the critical element".

56. Whilst it may, or may not be that case that an exchange of rings is significant the fact remains that the Appellant has given two different accounts of his perception of the events. On the one hand he regarded the engagement as a completed transaction but on the other maintained that it was "not definite". It is Professor Bluth's opinion that a verbal agreement would suffice but I am not satisfied that the formal introductions has ever taken place and thus neither family were in a position to regard the engagement as having been formalised.

57. I accept, by reference to Professor Bluth's Report, that honour killings can affect men as well as women although most victims are women. I am not satisfied that by his actions the Appellant had impugned the honour of Waheed Bibi's family – he would have been guided by his father's wishes as personal consent to the arrangement would also have been necessary and the arrangements never reached the stage where that had been sought.

58. I therefore conclude that the Appellant is not at risk of being the victim of an honour killing if he is removed to Pakistan.

….

62. I cannot find that Mustafa Pasha had any links to Waheeda Bibi's family based upon the evidence before me. All references to him acting as their agent are as a result of the Appellant's uncorroborated statements that his father had reported what Mustafa Pasha had said to him during his encounters with him. It is not the Appellant's case that Mustafa Pasha ever mentioned Waheeda, her family or his father during that first encounter when the Appellant claims he was knocked off his motorbike.

63. If the attacks on the Appellant and his father and the subsequent aggressive and threatening letters were genuinely the work of Mustafa Pasha I cannot escape the conclusion that he may have had some completely separate and undisclosed grievance with the Appellant and his family to cause him to behave in the manner described.

….

66. Thus, based upon my analysis of the evidence relating to the attacks on the Appellant and his father I cannot be satisfied that these have been truthfully described or that they represent a future risk to the Appellant if he is returned to Pakistan.

….

72. Based upon my findings I am not satisfied that the Appellant is at any risk on return to Pakistan. Even if that were the case I am satisfied that it would be possible for him to relocate within Pakistan which is a vast country and although, in order to relocate satisfactorily, it may be necessary for the Appellant to produce evidence of his identity I take into account the fact as submitted during the course of the Home Office Presenting Officer's closing submission by reference to the Country of Origin Information Report that Pakistan is divided into four separate police force areas with separate chains of command which would, to a high degree of probability, preclude the influence of Waheeda Bibi's uncle from being able to take steps to actively pursue the Appellant."

11. Permission to appeal from this decision was refused by the FTT on 20 December 2013. The appellant renewed his application for permission to the UT and in a determination of 22 July 2015 the UT allowed the appeal and remitted the matter to the FTT. The UT held as follows:

"7. I find the judge has made an arguable material legal error. The Respondent conceded the marriage issue and has not challenged the expert report although that is not determinative. There was no notice to the parties that the judge intended to go behind the concession and, even though some reasoning is given, it is arguable that it is insufficient.

8. The Appellant's case was supported by expert reports. The fact the report was not specifically challenged does not mean it is agreed. In SI (expert evidence – Kurd – SM confirmed) Iraq CG [2008] UKAIT 00094 the Tribunal held that failure by the respondent to adduce her own expert evidence cannot imbue expert evidence submitted by an appellant with any greater value than it merits when considered alongside the rest of the evidence.

9. The opinion of the expert is that in light of the honour issue the Appellant is at risk, there is no sufficiency of protection, and no internal flight option. The judge failed to adequately explain why such conclusions were rejected although it maybe as a result of the findings in relation to the marriage issue.

10. In all the circumstances I find the judge has materially erred in law. The determination is set aside. There shall be no preserved findings.

11. The parties agreed that the best course is for the matter to be remitted to the First-tier Tribunal sitting at Stoke to be reheard by a salaried judge other than Judge Osbourne."

The grounds of appeal

12. The essential ground of appeal is that the UT materially erred in law by refusing to allow the appellant's appeal outright without any further hearing and by failing to recognise that there were no outstanding legal issues left for determination in circumstances where the respondent:

(1) unambiguously conceded in the RL that the applicant "had agreed to become engaged to Waheeda"; and

(2) did not challenge the contents of Professor Bluth's expert country reports of 19 April 2013 and 2 November 2013, whose findings the FTT accordingly accepted.

13. Mr Drabble QC on behalf of the appellant submits that the combination of the concession made in the RL and the unchallenged expert evidence means that the only appropriate course for the UT to take was to allow the appeal. He stresses that Professor Bluth's report makes it clear that breaking an engagement agreement, even if informal, give rises to a risk of an honour killing – "There is no question that breaking a verbal agreement can be taken as seriously as reneging on a more formal engagement". Since the respondent had conceded that there was such an agreement, the UT was bound to conclude that there was here a risk to the appellant of being the subject of an honour killing.
14. In support of his arguments Mr Drabble QC has referred us to a number of authorities concerning the effect of making concessions and in particular Carcabuk and Bla -v- Secretary of State for the Home Department [2000] Appeal No. 00TH01426 IAT at [11]-[12.5] and R(Ganidagli) -v- Immigration Appeal Tribunal [2001] INLR 479 Admin) at [20]. In Carcabuk Collins J stated:

"11. It is in our judgment important to identify the precise nature of any so-called concession. If it is of fact (for example that ... an event described by the appellant or a witness did occur), the adjudicator should not go behind it. Accordingly, if facts are agreed, the adjudicator should accept whatever is agreed. Equally, if a concession is clearly made by a HOPO that an Appellant is telling the truth either generally or on specific matters, the adjudicator may raise with the HOPO his doubts whether the concession is appropriate but, if it is maintained, he should accept it ..."

15. It is to be noted that this authority recognises that, at least in some circumstances, a tribunal may raise doubts about a concession made and states that it is only if the concession is still maintained that the tribunal should accept it. The right of a tribunal to question concessions made is borne out by other authorities, as referred to below.
16. It is accepted by the respondent that the FTT's conclusion that there had been only "preliminary negotiations" with regard to the marriage was contrary to the respondent's concession that there had been an agreement to become engaged.
17. Mr Drabble also referred us to various authorities concerning the consequences of not challenging factual or expert evidence, such as MS(Sri Lanka) -v- Secretary of State for the Home Department [2012] EWCA Civ 1548 at [15]-[18] and the criminal law cases R -v- Matheson (1958) 1 WLR 474 CA Crim and in R -v- Brennan (2015) 1 WLR 2060.
18. In my judgment the appeal must be dismissed for a number of reasons.
19. First, even if the UT was bound to accept the respondent's concession in the RL that there was an engagement agreement and Professor Bluth's expert evidence, it was not bound to conclude that there was in this case a risk of an honour killing.
20. Professor Bluth's expert evidence was that an informal engagement agreement can give rise to a risk of an honour killing. Whether or not it in fact does so depends upon whether the family whose honour has been violated decides to take action. That is a matter of fact, not expert evidence. As Professor Bluth recognised in his report, the risk he describes would only arise "if the family seeks to pursue the appellant".
21. In support of his case on risk the appellant relied on various attacks allegedly carried out on him and his father by a Mustafa Pasha. Neither the respondent nor the FTT were, however, satisfied that these attacks had anything to do with Waheeda Bibi's family. As the FTT found at [62]: "I cannot find that Mustafa Pasha had any links to Waheeba's family based upon the evidence before me". Since it was possible that the FTT's finding on this issue was influenced by its error in law in going behind the concession made as to the engagement agreement, it was right for this factual issue to be remitted to the FTT, but it was not an issue upon which the UT could properly make findings.
22. The FTT also found at [72] that even if the appellant was at risk it would be possible for him safely to relocate within Pakistan. Again, since it was possible that this finding was influenced by the FTT going behind the concession made, it was right for this factual issue to be remitted to the FTT, but it was not an issue upon which the UT could properly make findings.
23. Secondly, neither the FTT nor the UT were bound to accept the concession made by the respondent in the RL. As stated in the case of Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC):

"35. Judges, unless in exceptional circumstances, do not look behind factual concessions. Such exceptional circumstances may arise where the concession is partial or unclear, and evidence develops in such a way that a judge considers that the extent and correctness of the concession must be revisited. If so, she must draw that immediately to attention of representatives so that they have an opportunity to ask such further questions, lead such further evidence and make such further submissions as required. An adjournment may become necessary."

24. The FTT found that there had only been "preliminary negotiations" with regard to the marriage. As is accepted, this was contrary to the respondent's concession that there had been an engagement agreement, but the error of law found by the UT was not that the FTT went behind the concession made, but that it did so without giving notice that it might do so, thereby depriving the appellant any opportunity to address the issue. This was the error of law alleged in the application for permission to appeal to the UT in which it was said that the FTT had erred by "cutting across" the respondent's concession "without the FTT providing the parties with any warnings of its intention to do so". The appropriate recourse in such a case is clearly remission.
25. Thirdly, the appellants' arguments overstate the consequences of failing to challenge expert evidence in the context of asylum appeals. As stated in the case of SI (expert evidence – Kurd – SM confirmed) Iraq CG [2008] UKAIT 00094, a case referred to by the UT:

"56…..The weight to be accorded to expert evidence in asylum-related appeals has been the subject of a number of judgments by the senior courts in recent times (see e.g. CM (Kenya) [2007] EWCA Civ 312; AS & DD (Libya) [2008] EWCA Civ 289) and it would be odd indeed to ignore their guidance in favour of decisions which are concerned with different subject-matters and where different rules of evidence prevailed. The Tribunal have expressed the view on many occasions that it would be desirable for the respondent to adduce its own expert evidence. However, its failure to do so cannot imbue expert evidence submitted by an appellant with any greater value than it merits when considered alongside the rest of the evidence. In general, the Tribunal take the view that a country expert's opinion is to be given significant weight and if the Tribunal decides to come to a different view from an expert on key matters, proper reasons must be given."

26. Fourthly, the UT noted at [11] that "the parties agreed that the best course is for the matter to be remitted…" If so (and there was some dispute about this), it is difficult to see how it would be open to the appellant to contend that an error of law was made in following that agreed course.
27. Fifthly, whether or not to remit a case involves the exercise of discretion and, as the single judge observed when refusing permission to appeal on the papers, "it is not arguable that the exercise of that discretion is irrational".

Conclusion

28. For the reasons outlined above I would dismiss the appeal.

Lord Justice Coulson:

29. I agree.

Lord Justice Lewison:

30. I also agree.