Scottish Court of Session Decisions

"22. I turn to consideration of the evidence. I found the Appellant and her husband to be credible and reliable witnesses. Much of the Appellant's claim was corroborated by her husband or by documentary evidence or both. I found no material inconsistencies in the various accounts which the Appellant had given of her asylum claim and I found no material inconsistencies in the accounts given by her husband. Their evidence was unaltered by cross-examination.

...

29. On 8^th January 2002, the Appellant and her husband went to Lahore to live with a distant relative of the Appellant's husband. Although they knew that the Appellant's family had lived in Lahore, they had no other friend or relative living in a different part of Pakistan to whom they could go. They hoped that Lahore was a sufficiently large city for them to be safe there. In addition, they were to be living an hour and a half's drive from the Appellant's family home which was still in Lahore and in which two of her brothers lived. She and her husband did not intend to leave Pakistan.

30. On 22^nd January 2002, the Appellant's husband was fetching food from a market when he was seen by the Appellant's older brother, who attacked him with an ice-pick. The Appellant's husband was taken to hospital, but left with only the barest of treatment because the hospital wished to alert the police to the attack, and the Appellant's husband feared for the consequences of their coming to the attention of the police. The Appellant's relative fetched him from hospital and arranged for him to be treated privately by a male nurse, but the wound became infected and he was unwell for some months. There was no medical report relating to the Appellant's hospitalisation or injury, but Mr Saeed showed me a healed, considerably indented wound to his side. The Appellant's husband took legal advice. He was advised to go to a police station, give a statement that he was legally married to the Appellant and he would be then taken to court on the kidnapping FIR, when he could present his marriage certificate to the court. However, both he and the Appellant considered the course too risky. They thought it more likely that the Appellant would be taken by the police and returned to her parents in order to restore the status quo, pending resolution of the kidnapping allegation. It would then be too late, because both the Appellant and her husband believed that the Appellant would be killed by her family for bringing dishonour on the family. The Appellant's husband's father advised them to leave the country and as soon as the Appellant's husband was well enough to travel, they left Pakistan on false passports and with the assistance of an agent (1^st May 2002).

31. In the present case, the Appellant fears death at the hands of male members of her family for having married outwith her family and her sect. She and her husband do not believe that they would have been afforded protection from the authorities. They feared the police would return the Appellant to her family if they found either the Appellant or her husband. They did not believe that the Appellant would receive protection against the Appellant's family if they returned to Pakistan. I consider those fears well founded as subjectively and objectively based on the evidence of the case.

32. The objective background evidence lodged by both parties present a compellingly supportive background to the Appellant's and her husband's claims. The CIPU assessment states (R.3.6.51 and R2.5 109):-

'The class and caste system is a pervasive aspect of Pakistani society. Inter-caste marriages can cause problems, with mixed marriages sometimes running a high risk of being killed. Although the legal system is designed to protect such individuals, police and the judiciary (particularly at the local level) may be unwilling or unable to offer effective protection from societal persecution.'

33. The Appellant's family are of a higher social status than that of the Appellant's husband. They are financially well off. Their family tradition was against marriage outside the family and outside the Shia sect. They did not recognise the Appellant's marriage. They considered that the Appellant had brought dishonour on the family by eloping with Khurram Saeed.

34. The CIPU assessment (paragraph 6) states that there are many cases in Pakistan where women have run away to marry men of their own choice and subsequently lived in fear of their male relatives' revenge for dishonouring the family. It also records that women who marry against the parents' wishes may be charged with extramarital relations. Amnesty International reports that physical abuse and torture of females in detention is rife. The tradition of the family killing those suspected of illicit sexual relations in so called 'honour killings' in order to restore family honour is far more likely to be carried out in the case of women. Although the practice has been condemned by General Musharraf, no action has been taken. It is a repeated feature of paragraph 6 of the latest CIPU assessment that huge numbers of deaths of females, inter alia by burning, at the hands of their own families, have been reported, but few suspects even arrested. Further, domestic violence against women, whether it be by a husband or male relatives such as fathers or brothers is a 'widespread and serious problem' with a very high rate of occurrence. It is reported that 'police and judges tend to see domestic violence as a family problem and are reluctant to take action'. Ms Bree [on behalf of the Appellant] has set out, in her written submissions, further passages of text from the objective evidence lodged, and I find these support the Appellant's claim to fear persecution and her claim that there was not, and would not be, in Pakistan, a sufficiency of protection from such persecution were she to return. I consider that the Appellant's pregnancy would, if it were possible, make her position worse.

"1. The Adjudicator at paragraph 31 of the determination finds that the appellant's fear is of her family, yet at paragraph 38 the Adjudicator does not consider internal flight as an option. This is an error as the claimant did not exhaust all domestic remedies open to her, as she located to the nearest large city which was formerly her family's home and where they still had connections. Pakistan is a country of 145,000,000 people it is therefore submitted that if the appellant and her husband were to relocate to another city without familial connections on return to Pakistan it would not be reasonably likely that her family would know of their return let alone manage to track the couple down. It is further submitted that given the couples young age, and considering the fact that the couple have managed to relocate to the United Kingdom, relocation in Pakistan would not be unduly harsh.

2. The Adjudicator has also confused the question of internal flight with the question of sufficiency of protection. It is submitted that these are two separate questions. The issue of protection following Shah and Islam and Horvath arises when persecution is present (persecution = risk of serious harm + failure of state protection). The question of internal flight or relocation involves whether it would be unduly harsh to relocate to a part of the country where there is no risk of persecution or article 3 mistreatment."

"7. In the event that we were not with him, Mr Sayeed [counsel for Noreen Saeed] asked us to remit the appeal to the same Adjudicator, for further findings as the availability of an internal flight option. We expressed our misgivings about this course of action, given that 2 years have already elapsed since the Adjudicator heard the appeal. The Adjudicator would find it difficult to recall her impression of the oral evidence she had heard. We were not aware whether the Adjudicator was a full time member of the judiciary. Further delays can be caused by a remittal to a part-time member of the judiciary. The Adjudicator had already made certain findings of fact, which may cause her difficulty in considering internal flight. Mr Sayeed asked us to bear in mind the fact that the Claimant had had a positive assessment of credibility in her favour. There has been delay already since the appeal was heard before the Adjudicator. It was adjourned on two previous occasions by the Tribunal. The Claimant and her family have lived with their situation unresolved for some time.

8. We reserved our determination.

9. After having very carefully considered the submissions and the Skeleton Argument we have concluded that we have no option but to remit this appeal for a fresh hearing by another Adjudicator. We have been slow to reach this conclusion and have done so very reluctantly. We now give our reasons for our decision, although we are forced to be circumspect in giving our reasons in order to avoid giving any indication of our views.

10. Initially, we were of the view (as we indicated at the commencement of the hearing) that the Secretary of State's challenge... was too limited. However, upon reflection and having considered the submissions before us, we noted that:

(a) at paragraph 31, the Adjudicator found that, if (our emphasis) the Claimant and her husband were found by the Claimant's family, the Claimant would be returned to her family. There was no finding as to whether it would be reasonably likely that the Claimant would be found. This comes within the terms of paragraph 1 of the grounds of application, which also asserts that the Adjudicator should have considered whether the Claimant and her family would be able to safely relocate to another city where they have no family connections. We consider that the Adjudicator ought to have considered this, since the place of relocation previously attempted by the Claimant and her husband was in fact Lahore city with which the Claimant had connections. Paragraph 29 of the Determination indicates that the Claimant's family lived in Lahore, that it was 11/2 hours' drive away from the family home in Lahore.

(b) we were satisfied that paragraph 2 of the grounds of application was also made out. The Adjudicator had confused the issue of the internal flight option with sufficiency of protection. It is clear that the Adjudicator was satisfied that the Claimant had a well-founded [fear of persecution] in her home area. She should then have gone on to consider whether the Claimant could relocate somewhere else in Pakistan where she would be safe. In answering this question, the Adjudicator would have had to consider the likelihood of the Claimant and her husband being found by the Claimant's family, what ill-treatment would follow and whether there would be sufficiency of protection. Instead of following this analytical approach, the Adjudicator considered sufficiency of protection in the event that the Claimant and her husband were found. Her finding that there would be insufficient protection throughout Pakistan was made on the footing that they would be found. It is precisely because she approached the issue from the wrong starting point that she allowed herself to be deflected from the issue which (in our view) is of crucial importance in this case - namely, whether there is a real risk of the Claimant's family finding the Claimant and her family if they were to relocate to another part of Pakistan. If there is no real risk, it is not relevant to consider sufficiency of protection.

(c) it is asserted in paragraph 14 of the Skeleton Argument that there are outstanding police proceedings against the Claimant's husband and that this means that internal relocation is not an option as a matter of safety. With respect, there is no clear finding by the Adjudicator as to whether there are outstanding police proceedings against the Claimant's husband. We are aware that the objective evidence makes it clear (and Mr Sayeed did not take issue with this at the hearing before us) that F.I.R.s are not effective indefinitely. They can and do in many cases lie on the file, dormant. They can, however, by re-activated by a complainant. The fact that the Adjudicator had found that the F.I.R. lodged by the Claimant's father was active to the extent that the Claimant's father-in-law and brother-in-law were arrested by the police in January 2002 does not mean that the Adjudicator found that there were outstanding proceedings as at the date of the hearing. We appreciate that, whilst this was not specifically raised in the grounds of application, the Tribunal would have to consider the likelihood of the F.I.R. being effective now (over 21/2 years after its issue) when considering whether there is a real risk of the Claimant and her husband being found if they were to relocate to an alternative location. Accordingly, the effectiveness or otherwise of the F.I.R. was intrinsically connected to the likelihood of risk in an alternative place of relocation, which is covered by paragraph 1 of the grounds of application.

11. Since the hearing before the Adjudicator took place, the Claimant says that her family have placed 'A missing persons' advertisement in the Daily Jang newspaper. Clearly this will be relevant to the issue as to whether there is a real risk that the Claimant and her husband will be found by the Claimant's family. There are, however, difficulties with this. Although the Adjudicator had found the Claimant and her husband credible, the newspaper advertisement was evidence adduced subsequent to the Adjudicator's hearing. The Adjudicator's positive credibility assessment with regard to the evidence of the Claimant and her husband could not, in our view, bind us to accept the newspaper advertisement, although clearly we would bear in mind the Adjudicator's positive assessment of credibility. As we have said above, the Tribunal's jurisdiction in this case is not limited to points of law only. Our jurisdiction is on law and fact. However, we could see a real possibility of finding ourselves in difficulty with the Adjudicator's positive assessment of credibility if we had heard oral evidence. This is another reason why we concluded that a remittal was the only option.

12. Mr Sayeed's submissions as to the reasons for a remittal to the same Adjudicator bore very heavily with us. However, we reluctantly concluded, for the reasons we have given in paragraph 7 above, that a remittal to another Adjudicator was the only fair course of action.

Decision

This appeal to the tribunal is allowed. We direct that the Appellant's appeal be considered afresh by an Adjudicator other than Ms A C McGavin."

(i) The IAT's decision was based on a misunderstanding or a misrepresentation

of part of the adjudicator's determination

(ii) There was no missing link in adjudicator's determination

(i) The IAT's decision was not based on a misunderstanding, but contained a typographical error

(ii) There was a missing link in adjudicator's determination

"There was no finding as to whether it would be reasonably likely that the claimant would be found."

" ... It is precisely because [the adjudicator] approached the issue from the wrong starting point that she allowed herself to be deflected from the issue which (in our view) is of crucial importance in this case - namely, whether there is a real risk of the claimant's family finding the claimant and her family if they were to relocate to another part of Pakistan. If there is no real risk, it is not relevant to consider sufficiency of protection."

The adjudicator had therefore misdirected herself in law as to internal flight. There was a gap in her reasoning. She had approached internal flight from the wrong end.

(iii) The IAT had not erred in directing that the case be remitted back to an adjudicator other than the original adjudicator

Additional authority

{36] That being so, it appears from paragraph 10(a) that the IAT addressed the wrong issue. The proper focus (as was clear from the adjudicator's determination) was the police. That is a significantly different concept from the claimant's family, for, as the adjudicator's determination demonstrates: (i) the police in Pakistan are state agents acting countrywide; (ii) in November 2002 there was hostile police interest in the petitioner (and her husband) because of their unauthorised elopement; (iii) if the police were to become aware of the petitioner's whereabouts in Pakistan, they would return her to her family and adopt a passive stance in the event that her family inflicted retribution upon her (defined in the CIPU report as including beatings, burnings, and killings); (iv) the countrywide police therefore have a dual role in relation to the petitioner and her husband, namely (a) that of hostile informant who, on learning of the petitioner's whereabouts would act as a channel of communication with the petitioner's family, resulting in her return to the family; and (b) that of the protector offered by the state, who would not in the circumstances give her any protection.

(ii) Whether there is a missing link in the adjudicator's determination

(1) The fact that the original adjudicator might be a part-time adjudicator: There is no indication in the IAT's determination that there was available to them, in some form, information or statistics which could justify the proposition that "[f]urther delays can be caused by a remittal to a part-time member of the judiciary". Without a clear evidence-based foundation for such a proposition, it is, in my opinion, something which should not have been taken into account. One could go further and take the view that even if evidence-based, such a general proposition could not be applied to a particular adjudicator without obtaining information about the work-pattern of that particular adjudicator. But that further step is unnecessary in the present case.

(2) The fact that the original adjudicator heard evidence two years previously and "would find it difficult to recall her impression of the oral evidence she had heard": The adjudicator's determination of 4 December 2002 would be sufficient in my view to refresh the adjudicator's memory about the impression made by the oral evidence she had heard. However in this particular case, I understand that the adjudicator still has her manuscript notes made at the time of hearing the evidence, which might give her further assistance. Accordingly I consider that the "difficulty in recalling" factor was a factor which should not properly have been taken into account.

(3) The fact that the adjudicator had already made certain findings in fact, which might cause her difficulty in considering internal flight: It is not uncommon for decision-makers to have to listen to fresh evidence or information, and to issue a second or supplementary decision or report or opinion. In the circumstances, the adjudicator would in my view have little difficulty indicating that the new evidence or information cast a different light on matters (if that were the case), and if necessary issuing revised conclusions, possibly including a revised assessment of credibility. Again, the IAT in my view took into account a factor which should not have been taken into account.