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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


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Cite as: [2025] UKAITUR UI2024005065

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IN THE UPPER TRIBUNAL Case No: UI-2024-005065

IMMIGRATION AND ASYLUM CHAMBER

First-tier Tribunal No: PA/55395/2023

 

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

 

 

 

29 th April 2025

 

Before

 

Deputy upper tribunal JUDGE Kelly

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

mi

Respondent

Representation :

For the Appellant: Mr M Diwnycz, Senior Home Office Presenting Officer

For the Respondent: Mr J Dingley, Counsel instructed by Legal Justice Solicitors

 

Heard at Braadford on the 9 th April 2025

 

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (upper Tribunal) Rules 2008 the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead member of the public to identify the appellant, her husband, or her children. Failure to comply with this order could amount to a contempt of court.

 

 

DECISION AND REASONS

 

Introduction

1.              This is the re-making of MI's appeal against the Secretary of State's decision, dated the 4 th August 2023, to refuse her Protection and Human Rights Claim. I previously set aside the decision of Judge Greer to allow MI's appeal against that decision. This followed an 'error of law' hearing that took place on the 10 th January 2025. I have nevertheless preserved Judge Greer's finding that the appellant has given a truthful account of events leading to her departure from Pakistan. This decision is therefore restricted to a re-assessment of the risk of harm on return, and it is made upon the same underlying factual basis as it was in the First-tier Tribunal.

2.              For ease of exposition, I shall refer to the parties in accordance with their status before the First-tier Tribunal; that is to say, MI as 'the appellant', and the Secretary of State as 'the respondent'. I also further extend the anonymity order that was made in the First-tier Tribunal.

Background

3.              The Appellant is a citizen of Pakistan and a member of the Khattak tribe. The essence of her claim, which is now accepted, is that she fled with her husband to the UK for fear that she would be killed by members of her family (father and brothers) due to them disapproving of her marriage. She thus claims to have a well-founded fear that if she were to return to Pakistan, members of her family would kill her, her husband, and her three daughters to whom she gave birth following her arrival in the United Kingdom.

4.              There is no dispute that the appellant genuinely holds the above fear. The outstanding issue is whether that fear is well-founded. This in turn depends, amongst other things, upon whether there is a real risk of the appellant's family being or becoming aware of the fact that the appellant has married without their consent, and in that event, whether any consequent risk of harm could be avoided by (i) relocating to another place in Pakistan and/or (ii) seeking the protection of the authorities in Pakistan.

The legal framework

5.              The test applicable to an assessment of serious harm upon a claimant's return to their country of origin is the same regardless of whether their protection claim was made before or after the commencement of the relevant provisions of the Nationality and Borders Act 2022. That test is one of 'a real risk'. The burden of substantiating the existence of such risk is upon the claimant. Past experience is generally regarded as a good guide to future risk of serious harm.

6.              A claimant will not be at risk of serious harm on return to their country of origin if they would not face such risk in part of that country, and they can reasonably be expected to stay there given -

(a)           the general circumstances prevailing in that part of the country, and

(b)          the personal circumstances of the claimant.

7.              A state generally provides a sufficient level of protection against persecution or harm if it  takes reasonable steps to prevent the persecution or suffering of serious harm by (amongst other things) operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the claimant has access to such protection.

Fresh documentation

8.              In addition to the evidence that was before the First-tier Tribunal, to which I made some reference in my 'error of law decision', the appellant has now submitted a report by Mr Asad Khan, which is dated the 22 nd March 2025. I was moreover greatly assisted by Skeleton Arguments prepared by Mr Jack Dingley (on behalf of MI) and Mr Alain Tan (on behalf of the Secretary of State) respectively.

Analysis

9.              Before considering the issues summarised at paragraph 4 (above), it is first necessary to set out in a little more detail the circumstances leading to the appellant's departure from Pakistan.

10.          The appellant was born in 1996 in the Swabi district of Pakistan, later moving with her family to Abbottabad. She graduated with a master's degree in social science and was practicing as a qualified schoolteacher in Pakistan when she left. She is a Muslim and speaks Urdu, Pashto, and English. Her family arranged (at her birth) for her to marry a cousin. However, having met her husband (SS) at a family wedding, she decided that she wanted to marry him instead. His mother proposed the match to her parents, but they immediately refused. Thereafter, the appellant's mother and brothers began beating and abusing her. The only time that she left the family home was to go to college. She nevertheless fell pregnant to her husband whereupon she left the family home to be with him. They married in Abbottabad on the 22 nd February 2020 and thereafter moved around from placed to place in Pakistan. They left for the United Kingdom on the 28 th November 2020, the appellant having secured a place at the University of Portsmouth. However, she did not take up her place on the course because she missed its commencement. At the time of her arrival in the UK, the appellant was eight months' pregnant with her first child, and she has gone on to give birth to three children (in total) whilst in the UK.

11.          Concerning the first question - is there a real risk that the appellant's family are, or may become, aware of the fact that the appellant has married without their consent? - the respondent notes (at paragraph 4 of their skeleton argument) that, having left the family home in Abbottabad, and prior to leaving Pakistan, the appellant did not have any contact with her parents or siblings. She was moreover not approached by anyone during the period of several months that she was living in various parts of Pakistan. Neither does she claim to have had any contact with any family member in Pakistan whilst she has been living in the United Kingdom. Given the above, I am not satisfied that her family members in Pakistan are aware of her having married without their consent, or that she now has three children. I also find it extremely unlikely that either the timing or the precise location of any postulated return to Pakistan would come to their attention. This reality was implicitly acknowledged by Mr Dingley when he suggested that the family may have assumed that she had been kidnapped and may thus still be seeking to establish her whereabouts, some five years after her disappearance. This is of course pure supposition. It was nevertheless advanced within the context of the reasonableness or otherwise of the appellant relocating within Pakistan over the longer term; an issue to which I now turn.

12.          A significant aspect of the appellant's ability to relocate within Pakistan over the longer term is the need for her to possess a computerised national identity card (CNIC). As the respondent points out in their skeleton argument, the appellant and her husband must already be in possession of such a document given that this would have been necessary for them to obtain their Pakistani passports upon which they travelled to the UK. These have been helpfully colour-copied into the respondent's skeleton argument at paragraph 11. Each passport was issued on the same day, namely, the 14 th July 2020, and is due to expire on the 13 th July 2025. Mr Digley submitted that it is likely that their CNIC's will expire at the same time as their passports. This may or may not be the case given that CNIC's can be issued for periods of either five or ten years [CPIN: 'Pakistan-Documentation' January 2020]. True it is, however, that those documents will need to be renewed at some fixed point in the future. Mr Asad Ali Khan, who was called to the Bar of England and Wales and is an Advocate of the High Courts in Pakistan, says in his report that to be able to renew a CNID, an applicant must either take a blood relative to the NADRA office or have their application signed and stamped by, "a government officer in the appropriate grade who personally knows the applicant". The only sources of information that he cites in support of the latter requirement is "the respondent's own literature on the subject from 2020" (see above) and guidance issued by NADRA suggesting that an applicant may "skip the attestation of the form" by bringing along "any blood relative" to provide their biometrics. Neither document, however, supports Mr Khan's contention that the government official charged with the responsibility of attesting application forms must be personally known to the applicant. Indeed, such a requirement seems highly improbable given (a) the practical obstacle that this would pose to making the application, and (b) the biometric nature of the information that is required to establish the applicant's identity. Moreover, the Australian Government's Department of Foreign Affairs and Trade (DFAT) states that the information recorded by the holder of the CNIC includes the name of the applicant's father, or husband for a married female. I am further fortified in rejecting Mr Khan's interpretation of the requirements for renewing a CNID by the fact that the appellant and her husband were able to obtain their passports after the appellant had left her father's home and married (in Abbottabad) without his consent. Given that the appellant's biometric details are already recorded on the government's database, I am unable to accept the implied suggestion that greater obstacles lie in the way of renewing their identity documents than those that appertained when seeking their original issue.

13.          Mr Khan also suggests that there is a real risk that the appellant's blood relatives will seek out her whereabouts by accessing the NADRA database. There are two aspects to this. The first concerns the security of the database. The second concerns the degree of determination of the individual seeking to breach it. So far as the first is concerned, Mr Khan states that, "data leaks are common in Pakistan and NADRA is no exception" [39]. Whilst he says that the Public Accounts Committee (PAC) have "taken notice of leakage of citizens data in 2023", the only recorded examples that he gives of this concern the falsification rather than dissemination of data. Other than this, he says (and I accept) that he has personally observed 'touts' (locally called "agent mafia") outside NADRA centres, who act as middlemen by obtaining CNIC details from the staff members in the NADRA offices by paying them bribes. It is against this background that I move on to consider of the second part of the risk assessment. It will be recalled that there is no evidence to suggest that the appellant's blood relatives have any idea as to how or why she disappeared from the family home. It may be, as Mr Digley suggested, that they will have concluded that she had been kidnapped, in which case they would likely consider it a fruitless exercise to attempt to trace her via NADRA. Moreover, any attempt to trace her by this means would likely have occurred in the early days following her departure from the family home. Such an attempt would not have provided any useful leads to her whereabouts given she was not by that stage living at her registered address. One therefore has to envisage a scenario whereby the appellant's family have been so determined to trace her whereabouts that they have been regularly paying bribes to 'mafia agents' over the last five years, without result, and will nonetheless continue to do so until such time as she notifies the authorities of a change of address when applying for the renewal of her CNID at some uncertain time in the future. Whilst this is theoretically possible, I am not satisfied that it is reasonably likely in the real world, especially given that her family would appear to be ignorant of the circumstances in which she disappeared from the family home.

14.          The other basis upon which Mr Khan suggests that there is a real risk of the appellant being traced by her family on return to Pakistan (assuming, once again, that they are sufficiently motivated to do so) is her membership of the Pashtun (Khattak) tribe. Mr Khan refers to two individual members of the Khattak family tribe who have held important roles in government: one who was Minister of Petroleum in the 1970s, and one who was Chief Minister in KP between 2013 and 2019 and was Minister of Defence in the National Government between 2018 and 2022. Having emphasised the importance of tribal-based honour over the interests of the individual, he concludes that the appellant would only be able to avoid detection, "by going underground", and suggests that this would not in any event offer a long-term solution to the problems associated with relocating within Pakistan. He even goes so far as to claim, without explanation, that she would not be able to enjoy the benefits of anonymity within "a big city in Pakistan". I do not accept this claim. Whilst I appreciate that it may be difficult for a stranger to avoid coming to the attention of neighbours in a village in rural Pakistan, it is by no means obvious to me why this should be so in a large city that lies outside the areas of Pashtun concentration. Mr Khan's unsubstantiated opinion on the matter also runs counter to the appellant's own account of her family (and that of her husband) who she says lack influence outside their own village (AIR 133, 152). That account is further supported by the fact that the appellant was able to marry, without her father's knowledge or consent, within the very same district (Abbottabad) as her father's family home. All this occurred notwithstanding the fact that Abbottabad ranks as only the 40th largest city in Pakistan and lies within one of the Pashtun heartlands (the Khyber Pakhtunkhwa province).

15.          This brings me to the broader issues concerning internal relocation that were not considered by Mr Khan. Both the appellant and her husband are highly educated. The appellant is multi-lingual, speaking as she does Pashtun, Urdu, and English. They have demonstrated their ability to live safely in Pakistan over a period of many months, notwithstanding that Pakistan was in a state of 'lockdown' at the time due to the Covid 19 pandemic. Insofar as the appellant may find herself at a disadvantage living in a patriarchal and patrilineal society, she would have the support of her husband to whom she is legally married and to whom she has three children who were all born within wedlock. Both she and her husband are well-versed in the prevailing customs and culture of their country of origin. There is accordingly no apparent reason why either or both could not obtain reasonably well-paid employment in a different area of Pakistan should they find it necessary to relocate for their own peace of mind.

16.          Standing back, and considering all the above information in the round, I am not satisfied that the appellant has substantiated her claim that there is a real risk that she would be killed or otherwise harmed by her blood relatives on return to her home area of Abbottabad in Pakistan, still less were she to relocate to another area of that country. I nevertheless now turn to consider Mr Khan's alternative claim, namely, that the state of Pakistan is unable to provide sufficient protection against any threat that she may face of gender-based violence from her blood relatives on return to Pakistan.

17.          The information to which I found the First-tier Tribunal paid insufficient (if any) attention when assessing future risk of harm on return to Pakistan is contained within two Home Office Country Policy Information Notes (CPIN): (1) 'Pakistan: Actors of Protection', and (2) 'Pakistan: Women fearing gender-based violence' [Version 5.0, November 2022]. The former document states that human rights and women's rights desks have been established at police stations in over 15 districts in KP, together with an integrated Victim Support Network that links the relevant service providers (police, hospital, social welfare, shelters, etc). Mr Dingley submitted that this information should be approached with a degree of caution given that its source is the government of Pakistan. However, the latter document cites information from numerous other sources, which was extensively quoted in the respondent's 'Reasons for Refusal Letter', as follow -

Paragraph 7.3.7 : "Provincial laws aimed at protecting women from domestic violence included: The Punjab Protection of Women against violence Act 2016, Sindh Domestic Violence (prevention and protection) Bill 2013, Baluchistan Domestic Violence (prevention and Protection) Bill 2014, and The Khyber Pakhtunkhwa Domestic Violence Against Women (Prevention and Protection) Act, 2021"

..............

Paragraph 8.2.1 states: " The UN Committee on the Elimination of Discrimination Against Women (CEDAW) noted in its concluding observations on the fifth periodic report of Pakistan, dated 10 March 2020, that:

'The Committee welcomes the State party's efforts to increase access to justice for women and girls. It further welcomes the establishment, in 2017, of the first gender-based violence court in the Lahore High Court, which has dealt with 123 cases involving gender-based violence against women, and the establishment of 16 family courts in the District Headquarters of Punjab. The Committee notes that, in the Alternate Dispute Resolution Act of 2017, parallel legal systems and informal dispute resolution mechanisms, including jirgas and panchayats, are formally recognized, incorporated into the mainstream judicial system, and subjected to judicial and administrative overview. The Committee remains concerned that these systems may discriminate against women and girls. It also remains concerned about the limited awareness among women and girls of their rights, as well as the physical and economic barriers that they face in accessing justice'."

And paragraph 8.2.5 states : "Legislation allows victims to file a petition in court against their abusers..."

Further, information within paragraph 8.2.6 informs that it is possible to obtain a restraining order in Punjab under the Punjab Protection of Women against Violence Act, 2016 and elsewhere in Pakistan, a judge may issue a "protection order" (denial of bail) to protect any victim or witness of a crime.

And paragraph 8.2.7 states : The ADB report of September 2021 noted, in regard to legal aid, that:

'Section 340 of the CrPC [Criminal Procedure Code] provides for an accused to be represented by a counsel at the expense of the State. Section 161A of the CrPC also entitles victims of sexual abuse to free legal aid. The police must inform victims of this right after registering the case and provide her with the list of lawyers maintained by the Provincial Bar Councils for this purpose.'

'The Sindh Domestic Violence (Prevention and Protection) Act, 2013; the Balochistan Domestic Violence (Prevention and Protection) Act, 2014; the Punjab Protection of Women Against Violence Act, 2016; and the Khyber Pakhtunkhwa Domestic Violence (Prevention and Protection) Act, 2021 make it a duty of a protection officer and Secretary of the District Protection Committee (as the case may be) to ensure that an aggrieved person or complainant is provided with legal aid'."

"The USSD Human Rights Report 2022 cited the mechanisms in place aimed at enabling women to access support:

'The Punjab Protection of Women against Violence Act provides legal protections for domestic abuse victims, including judicial protective orders and access to a network of district-level women's shelters.'

'On October 5, the Gilgit-Baltistan government launched a "Pink Bus Service" to provide three free women-only bus services in the area between morning and afternoon hours. Lahore used a special court designed to focus exclusively on gender-based violence crimes. The Lahore Gender-Based Violence Court receives the most serious cases in the district, such as aggravated rape, and offers enhanced protections to women and girls.'

'The Pakistan National Judicial Policy Making Committee directed all provincial high courts to establish special gender-based violence courts to provide justice to victims of sexual and gender-based violence on a priority basis and in a gender-sensitive manner. At year's end, special courts for gender-based violence operated countrywide.

18.          Much of Mr Khan's negative response to the efforts of national and regional government to address gender-based violence (including 'honour killings') is based upon the fact that it has continued to be widespread following the passing of legislation that was designed to combat it. However, the mere fact that offences continue to be committed after the conduct in question has been criminalised does not of itself demonstrate the ineffectiveness of the legislation that outlawed it. Judging the effectiveness of such legislation will partly depend upon the extent to which the state authorities recorded levels of crime prior to its passing and are thus able to compare it with such levels thereafter. However, whilst Mr Khan sets out a series of statistics relating to the number of 'honour-killings' that are said to have occurred over the years in various regions of Pakistan [20, 21] it is not possible to discern from these whether the trend has been up, down, or merely static. At paragraph 24 of his report, Mr Khan cites the authors of an article in which they argue ("correctly", in his view) that the Amendment of Criminal Law Act 2004 has "definitely not put an end to honour killings", and neither has it, "drastically reduced it". However, no statistical data is provided to support this 'argument', still less to support reports that are said to emanate from some, "sections of the community", that the legislation has "seemingly" led to an increase in the number of honour killings, "due to some exemptions that are available under the honour killing law". In short, the cited evidence provides far-too-vague-a-basis for Mr Khan's conclusion that the relevant legislation has been ineffective.

19.          State protection of potential victims of harm relies heavily upon legal deterrence. Such deterrence will obviously be ineffective if the law is perceived to be inadequately enforced. One of the reasons Mr Khan gives for suggesting that the perpetrators of 'honour killings' may feel able to act with impunity is the fact that the prosecution are required by the Pakistani legal system to prove their case beyond a reasonable doubt to secure a conviction [15]. However, this is hardly a basis for finding that enforcement of the criminal law in Pakistan is inadequate, since such requirement is commonplace in jurisdictions throughout the world, including in the United Kingdom. He also points to evidence of inefficiency and corruption in the agencies of law enforcement in Pakistan. However, he does not specifically link this to any of the institutions mentioned in the background country information relied upon by the respondent (paragraph 17, above) and it is unclear as to how this might be relevant to the appellant's circumstances as summarised at paragraphs 10 and 15 (above). He does however rightly draw attention to something that was also a matter of concern to The UN Committee on the Elimination of Discrimination Against Women (CEDAW), namely, what CEDAW described as, "parallel legal systems and informal dispute resolution mechanisms, including jirgas and panchayats" These parallel legal systems, also mentioned by Mr Khan at paragraph 14 of his report, were apparently incorporated into the mainstream judicial system, subject to judicial and administrative oversight, by the 'Alternative Dispute Resolution Act of 2017'. However, the level of concern expressed by CEDAW and Mr Khan is markedly different. Whilst CEDAW's concern is limited to a fear that, "these systems may discriminate against women and girls", Mr Khan cites an article by Aleena Khan - 'Honour Killings in Pakistan: Judicial and Legal Treatment of the Crime: A Feminist Perspective' - in which it is said that, "the majority of the perpetrators [of honour killing] are allowed to go scot free". It is therefore necessary to look at the evidence that is cited in support of this rather startling proposition in a little detail.

20.          Mr Khan refers to the well-publicised murder of 'Qandeel Baloch', a 'social media influencer' who was murdered in 2016 by her brother, Muhammed Wasim. Wasim was originally sentenced to life imprisonment but was later set free. Mr Khan states that the Criminal Law (Amendment) (Offences in the Name or on the pretext of Honour) Act 2016 was passed with a view to closing a loophole in the law that allowed those convicted of 'honour killing' to avoid punishment if the victim's family forgave them [15]. However, he later appears to contradict this by implying that the Penal Code of 1860 continues to permit an offender to escape liability for murder in such circumstances [17]. Be that as it may, I find it impossible to tell from the very short excerpt of the judgement in the Wasim case, as cited in Mr Khan's report, to ascertain the precise basis upon which his conviction was subsequently quashed. If it was because his mother and father (who were also the parents of the victim) had forgiven their son, then the point is well made. However, it also seems to be suggested that the conviction was quashed because it was founded upon a tainted confession. If that was the case, then the decision illustrates nothing more than the court operating according to the due process of law by finding that the prosecution had failed to discharge the burden of proof. Whatever the precise basis for the quashing of Wasim's conviction may have been, it hardly justifies a claim that, "the majority of the perpetrators [of honour killing] are allowed to go scot free".

21.          It is in any event unclear why the appellant should fear her husband's parents - and, by extension, fear they would forgive members of her own family should they kill her - given that it was they who proposed the very match that has led to her fearing return to Pakistan [paragraph 1 of her witness statement, dated the 5 th December 2023]. Whilst it is clear from her husband's witness statement that his parents were angry and upset at the rejection of their proposal, he makes it equally clear that there is no love lost between the two families [paragraphs 5 of his witness statement, dated the 8 th December 2023]. It is thus extremely unlikely that they would forgive the appellant's blood relatives for murdering their son, daughter-in-law, and grandchildren. Moreover, the appellant's blood relatives are bound to realise this.

22.          I accordingly find that the appellant has failed to substantiate her claim that there is a real risk of her blood relatives feeling able to act with impunity by killing her and members of her immediate family on their return to Pakistan, and/or that they would not be deterred from doing so through fear of the legal consequences.

23.          For the sake of completeness, I note that Mr Khan refers to a report of the 24 th August 2024 in which it is stated that "the special desks established in Peshwar police stations to assist women and transgender persons have become inactive, primarily due to the insufficient number of female officers". There are two points to note here. Firstly, such desks were no doubt set up to offer some reassurance to those who are vulnerable due to a lack of male support. The appellant does not fall into to this category. She would have the support of her husband. Secondly, the report concerns only desks in the city of Peshwar, rather than the 14 other districts in KP where background information suggests such desks are available to the victims of gender-based violence.

24.          In summary, therefore, I find that the appellant has failed to substantiate her claim that,

(a)           there is a real risk that the appellant's blood relatives would be ready, willing, or able to trace and kill her (and/or her immediate family members) should she return to Pakistan,

(b)          there are not places in Pakistan where she could reasonably be expected to stay and where she could reside without real risk of harm from those relatives, or

(c)           the level of protection against harm (including 'honour killings') provided by the state of Pakistan is insufficient to deter those relatives from killing her and her immediate family.

Notice of Decision

MI's appeal against the Secretary of State's decision to refuse her protection and human rights claim is dismissed.

 

 

David Kelly Date: 19 th April 2025

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

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