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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> ST v Secretary of State for Home Department [2012] EWHC 988 (Admin) (20 December 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/988.html Cite as: [2012] EWHC 988 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ST |
Claimant |
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- and - |
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Secretary of State for Home Department |
Defendant |
____________________
Mr Mathew Gullick (instructed by The Treasury Solicitor) for the Defendant
____________________
Crown Copyright ©
His Honour Judge Anthony Thornton QC:
Introduction
Factual Background
"I converted to Shi'a faith … and devout myself to the teaching and preaching of my Shi'a faith. … I spent ten weeks in immigration removal centre and on 19 March 2011 the SSHD has granted me temporary admission. My [male] friend and mentor … took me back to his house at Bradford. I took a sigh of relief and resume my preaching activities. I decided to go door to door to preach my Shi'a faith to people who understand my language. I live at Bradford and most of my neighbours come from Pakistan. On 25 March 2011 while I was preaching door to door I came across a family who come from Gujrat Pakistan and known to me and my parents. The head of the family … informed me that he is maintaining contacts with my parents. He told me that my husband with the help of the Police took my daughter away from my parents. I then preached my faith to [him]. He got offensive and swore at me. He said he will inform my parents. He called me apostate and Shi'a Kafir. I ran away from his house."[5]
The Three Decisions
(1) The initial decision dated 27 October 2005.
(2) The further representations dated 13 May 2009 and the decision dated 10 January 2011
(3) The second further representations dated 25 January 2011 and the decision dated 28 January 2011
(1) Claim form and grounds
(2) Summary grounds of defence
(3) Permission decision
(4) Amended grounds and detailed grounds of defence
(1) ST claimed that she was entitled to rely on her fear of persecution arising from the alleged domestic violence she had suffered since this had never been tested in court or in a tribunal and because fresh evidence of the risk she ran on return was to be found in the then recent Country Guidance case of KA and others which showed that the basis of the 2005 decision that sufficient protection would be available to ST was in error.
(2) The evidence that had been advanced in support of ST's contention that she had converted to the Shi'a faith was not properly considered before her contention was rejected as lacking credibility. Likewise, the evidence that had been advanced to show that those who converted to the Shi'a faith were at significant risk of harm at the hands of Sunni fundamentalists had not been properly considered since this suggested that she would not have sufficient protection.
(a) ST's lack of credibility
(1) ST was, in effect, seeking to appeal the adverse 2005 decision which she was not permitted to do using the paragraph 353 procedure. Moreover, the SSHD was entitled to take her previous adverse credibility findings into account even though there was no appeal.
(2) Her recently served evidence of her recent preaching in Bradford was not credible and no weight should be attached to it.
(b) ST's lack of evidence of her personal circumstances
(3) ST had not provided any evidence of her personal circumstances to show that she was at risk of an honour killing, domestic violence or inadequate protection on her return. Furthermore, KA and others demonstrated that the network of women's shelters in Pakistan provide effective protection for women notwithstanding significant shortcomings in the level of protection provided in some centres.
(4) The SSHD was entitled to conclude that there was insufficient evidence that ST had converted to the Shi'a faith or that she would be persecuted on her return to Pakistan or that she could not safely relocate to an area in Pakistan with a Shi'a community.
(c) The SSHD correctly applied the paragraph 353 fresh claim test
(5) The first further representations were considered as not being sufficiently different from the material that had already been considered so be capable of constituting a fresh claim. That was a conclusion which the SSHD was entitled to reach.
(6) It was accepted that the second further representations amounted to material which had not been considered before.
(7) The SSHD applied the correct fresh claim test by considering whether the second further representations had a realistic prospect of success. That test was correctly applied with anxious scrutiny.
The Relevant Legal Principles
(1) Summary of ST's asylum and human rights claims
(1) ST would, on return, be considered by her husband and his family to be one deserving of being harmed or even killed since she would be a divorcée or estranged as a result of her wishes and actions who had decided to leave her husband after an arranged marriage when she was 16 and whilst pregnant with their first child having been the subject of significant and unbearable domestic violence;
(2) ST's ex-husband was deeply resentful that he had had a daughter and not a son and he had attempted to kill both ST and their daughter on a number of occasions. This risk was compounded by what was reported to ST from a source she contended was close to her family in Pakistan, from whom she was now estranged, that her ex-husband had seized their daughter from the custody of her parents with the assistance of the Police.
(3) ST's ex-husband's father is, or was, a prominent politician and her ex-husband was involved in political activity and they had, or appeared to have, immunity from Police interest in their criminal acts that had been directed towards her.
(4) ST was born into a very conservative Sunni family and was brought up as a Sunni. She had been converted to the Shi'a faith since she started to live in Bradford and was now an active preacher of the Shi'a faith to Sunnis. She would be regarded as an apostate on her return to Pakistan and would be shunned by her family there and was at significant risk of serious harm at the hands of extremist fundamentalist Sunni groups. The Sunni Muslims form at least 80% of Muslims in Pakistan, an almost exclusively Muslim country and fundamentalist repression of Shi'as, particularly those considered to be apostates, is widespread.
(5) ST lived with, or appeared to be living with, a man in England to whom she was not married and is or would be perceived to be an adulteress on her return to Pakistan. This fact would have been likely to have been reported back to her family by a source now living in Bradford who ST considered to have become aware of her and her activities.
(6) ST would be returned to Pakistan as a failed asylum seeker and would be likely to come to the attention of those who she reasonably perceived as being likely to seek her out for harmful purposes.
(7) ST had no family to accept her on her return due to her estrangement with them as a result of a combination of the risk factors set out above.
(8) ST had no place of residence to return to and there were no, or no reported refuges or places of safety to which she could turn given her seven-year absence from Pakistan and the inter-locking and complex series of risk factors that she was, or might be, at risk from.
(1) As a refugee who has a well-founded fear of being persecuted for reasons of religion or membership of a particular social group, namely a woman who has been subjected to a forced marriage when very young, domestic violence and separation or divorce and as the mother of a female child and who is unwilling and unable to return due to her fear of the consequences[8].
(2) The very significant threat or potential threat to her right to life, to her being the victim of degrading treatment and to her right to a private life are such that her removal to Pakistan would involve an infringement of her articles 2, 3 and 8 rights that are protected by the ECHR.
(3) ST has a real and well-founded fear that she would have insufficient protection from the authorities and would be unable safely to relocate within Pakistan if she was returned there.
(4) ST has a real and well-founded fear that she would be unable to practice her faith and her wish to preach it and that, due to her conversion to the Shi'a faith, taken in conjunction with her other risk factors, she was at serious risk of harm from Sunni fundamentalist groups.
(5) ST could not reasonably safely relocate if returned, there were no shelters or other places of safety where she could be accommodated, she could not safely practise her preaching activities and she would not be adequately protected by the Police or by the state.
(2) Paragraph 353
"When a human rights or asylum claim has been rejected or withdrawn or treated as withdrawn under paragraph 353C of these Rules and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas."
(1) Is the further claim a human rights or asylum claim?
(2) Has the claim previously been rejected or withdrawn and any appeal relating to that claim is no longer pending?
(3) Is the present claim accepted or rejected?
(4) If rejected, is the content of the submission significantly different from the material that had previously been considered?
(5) When taken together with the previously considered material, does the present claim create a realistic prospect of success notwithstanding its rejection?
"The WM (Congo) case has been treated as authority that, in deciding whether to treat a submission as a fresh claim, the Secretary of State should in effect put himself in the shoes of an adjudicator or immigration judge. The judge [at first instance in YH] quoted the following passage from the judgment of Buxton LJ:
'… the question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator [allowing the appeal]. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that inquiry; but it is only a starting point in the consideration of a question that is a distinctly different one from the exercise of the Secretary of State making up his own mind.'
It was no doubt in deference to such guidance, that the decision letter of [the SSHD that was the subject-matter of the appeal in YH] spoke of the view to be expected from the 'hypothetical judge'.
The concept of a 'hypothetical judge' deciding an appeal can be a helpful discipline, in so far as it makes clear that the Secretary of State is acting simply as the gate-keeper to a process leading to a possible appeal, and it emphasises the objectivity which that requires. However, it is no more than a guide, not a legal formula. In law, whether under the rules or the statute, the Secretary of State is standing in his or her own shoes in deciding this threshold question."
"That … judgement will involve not only judging the reliability of the new material but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.[12]"
"Where there are no clear findings [of an adjudicator or immigration judge], the defendant is at risk of assuming more than a role of determining whether a new judge would realistically reach a decision favourable to the claimant. Uncertainties should be unravelled by evidence or an opportunity for evidence to be adduced. That is a consequence of the obligation of anxious scrutiny."[14]
"… most people who have experience of obtaining a narrative from asylum seekers from a different language or a different culture recognise that time, confidence in the interviewer and the interview process and some patience and some specific direction to pertinent questions is needed to adduce a comprehensive and adequate account. This is particularly the case where sexual assaults are alleged and all kind of cultural and gender sensitive issues may be in play as to why the full picture is not disclosed early on."
"… shall take account as damaging [ST's] credibility of any behaviour to which … this section [i.e. section 8] applies."
The relevant behaviour referred to in section 8 was that set out in section 8(4) which refers to:
"… failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country."
SSHD determined that ST's statements made to the SSHD officials who were involved in conducting her screening and statement of evidence interviews were not credible because she had:
"… failed to make a claim at the earliest opportunity, and as a result [her] credibility has been damaged under section 8 of the Asylum & Immigration Act (Treatment of Claimants etc.) Act 2004"
It is to be noted that the test applied by the decision-maker was more onerous than the applicable test provided for in section 8(4) that ST failed to make her asylum claim at the earliest opportunity[16]. In fact, ST appears to have complied with both tests. However, the statutory adverse finding about ST's timing of her asylum claim was clearly a significant factor in influencing the first decision-maker to make seven adverse credibility findings about particular aspects of her factual account of her previous history and of the persecution that she had been subjected to with the result that her asylum claim was rejected.
"339L It is the duty of the person to substantiate the asylum claim or establish that he is a person eligible humanitarian protection or substantiate his human rights claim. Where aspects of the person's statements are not supported by documentary or other evidence, those aspects will not need confirmation when all of the following conditions are met:
(i) the person has made a genuine effort to substantiate his asylum claim or establish that he is a person eligible humanitarian protection or substantiate his human rights claim;
(ii) all material factors at the person's disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant material has been given;
(iii) the person's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the person's case;
(iv) the person has made an asylum claim or sought to establish that he is a person eligible for humanitarian protection or made a human rights claim at the earliest possible time, unless the person can demonstrate good reason for not having done so; and
(v) the general credibility of the person has been established."
"It is the task of the fact-finder, whether official or judge, to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof. Some aspects of the evidence may themselves contain the seeds of doubt. Some aspects of the evidence may cause doubt to be cast on other parts of the evidence… Some parts of the evidence may shine with the light of credibility. The fact-finder must consider all these points together; and … although some matters may go against and some matters count in favour of credibility, it is for the fact-finder to decide which are the important, and which are the less important features of the evidence, and to reach his view as a whole on the evidence as a whole".
"(1) There may be circumstances in which a decision-maker must take into account the possibility that alleged past events occurred even though it finds that these events probably did not occur. The reason for this is that the ultimate question is whether the applicant has a real substantial basis for his fear of future persecution. The decision-maker must not foreclose reasonable speculation about the chances of the future hypothetical event occurring.
(2) Although the civil standard of proof is not irrelevant to the fact-finding process, the decision-maker cannot simply apply that standard to all fact-finding. It frequently has to make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate, and who often do not understand either the process or the language spoken by the decision-maker/investigator. Even applicants with a genuine fear of persecution may not present as models of consistency or transparent veracity.
(3) In this context, when the decision-maker is uncertain as to whether an alleged event occurred, or finds that although the probabilities are against it, the event may have occurred, it may be necessary to take into account the possibility that the event took place in deciding the ultimate question (for which see (1) above). Similarly, if the non-occurrence of an event is important to the applicant's case, the possibility that that event did not occur may need to be considered by the decision-maker even though it considers that the disputed event probably did occur.
(4) Although the "What if I am wrong?" terminology has gained currency, it is more accurate to see this requirement as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason.
(5) There is no reason in principle to support a general rule that a decision-maker must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that its findings were correct. (In Guo, for instance, the High Court considered that it was enough that the tribunal appeared to have no doubt that the probability of error was insignificant).
(6) If a fair reading of the decision-maker's reasons as a whole shows that it "had no real doubt" that claimed events did not occur, then there is no warrant for holding that it should have considered the possibility that its findings were wrong."[22]
"Like Brooke LJ I find the Australian cases of the greatest assistance. I would put my own view, in summary, as follows. The question whether an applicant for asylum is within the protection of 1951 Convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant's case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statute and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process: see Simon Brown LJ in Ravichandran [1996] Imm AR 97, 112. Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and - sometimes - specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the Convention issues. Finally, and importantly, the Convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or criminal litigation need not detain us now."[23]
"As I suggested in the AS (Sri Lanka) case[25], the expression in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind; indeed, one might be thought an 'axiomatic' part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however, echoing Lord Hope, that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credibility towards those advancing stories which are manifestly contrived or riddled with inconsistencies."
(1) Wednesbury test. When an applicant seeks to have an adverse fresh claim decision judicially reviewed, the court will adopt a conventional judicial review. The first consideration is whether the decision-maker asked the right questions. These are: (a) is the new claim an asylum or human rights claim; (b) is it significantly different from the material that has previously been considered and (c) taken together with the previously considered material, does it create a realistic prospect of success by a judge at the hearing of an immigration appeal in the FtT.
(2) The court will then consider whether the decision-maker has correctly applied the law, whether there was any procedural impropriety in the decision-making process, whether the decision took account anything it should not have done or did not take into account anything it should have done and whether it was perverse.
(3) Separate reasoned decision. The decision-maker must stand back from the decision rejecting the new claim and review the further representations and the previously considered material afresh for the purpose of deciding whether, notwithstanding the rejection of the further submissions, the claim is a fresh claim. Reasons must be given for the fresh claim rejection decision. These must be sufficient in content and length to explain why that decision was made.
(4) Anxious scrutiny. The decision-maker in making the fresh claim determination and the court in reviewing it must undertake their respective decision-making with anxious scrutiny. This requirement involves the decision-maker in the reasons for the decision and the court in its judgment has taken into account every factor which might tell in favour of the applicant.
(5) It is particularly important in a case, such as this one, to ensure that the fresh claim rejection decision was taken following the exercise of anxious scrutiny there had been no appeal from the initial decision and therefore there had never at any stage a decision in relation to the applicant's asylum and human rights claims by an independent tribunal.
(6) In exercising anxious scrutiny, the decision-maker and the court may in appropriate circumstances on the fact-specific facts of a particular case take account of any factor that is known to it or could with reasonable diligence be known to it even if that factor had not been expressly relied on by the applicant in the original or new claims as part of the exercise of showing anxious scrutiny[30].
(7) Paragraph 353 - substantially different claim. Following the rejection of the further claim, which will have been made in the form of further representations or submissions drafted by the claimant or his or her representative, the decision-maker must then consider whether the further claim is significantly different from the previous claim. This involves a consideration of all aspects of the two claims. Thus, a claim may be significantly different if its factual or legal basis is significantly different from the first claim. It may also be significantly different if the decision-maker, exercising anxious scrutiny, considers that the new claim and anything else reasonably known to the decision-maker shows that there is a reasonable prospect of showing that significant adverse credibility findings made when the first claim was rejected were not justified or that there is uncertainty as to the reasonableness or fairness of those findings.
(8) The decision-maker should not draw adverse inferences where the applicant did not exercise his or her right of appeal against the first decision where there is, or there may be, a satisfactory explanation for the absence of an appeal.
(9) Realistic prospect of success. Where the claim is substantially different from the first claim, the decision-maker must then consider whether the second claim has a realistic prospect of success. That involves the second decision-maker considering the factual and evidential basis of the second claim, taken together with the previously considered material and then reaching his or her own conclusion as to whether an appeal against the decision to reject that claim that has just been made has a reasonable prospect of success.
(10) When deciding whether the decision-maker had properly evaluated the prospects of success of an appeal concerned with the rejection of the new claim, the judge hearing the judicial review should consider whether the decision-maker had reached that rejection decision following the exercise of anxious scrutiny since any failure to apply that test would be strongly indicative that the decision-maker had not properly considered what the prospects of success would be of a hypothetical appeal from that rejection decision.
(11) Hypothetical appeal. In reaching the fresh claim decision, the decision-maker must make his or her own decision and is not standing in the shoes of the hypothetical judge. However, in making that decision, the decision-maker must take into account the nature of both the hypothetical appeal and of the decision-making process of an immigration judge deciding that appeal.
(12) The hypothetical appeal is an immigration appeal heard by an immigration judge in the FtT. Although described as an appeal, the process involves a fresh hearing of the new claim in all respects and previous decisions in relation to the claim are evidence that may be taken into account but are not binding on the judge hearing the appeal.
(13) The judge hearing the hypothetical appeal would be undertaking a very different decision-making process from the decision-making process that the decision-maker making the rejection decision had carried out. The decision-maker would have taken the taken into account the first decision and the second claim, both of which would have been in writing. The hypothetical appeal would, however, be decided by the evidence adduced at the hearing which, in addition to the original decision, would include the written evidence and cross-examination of the applicant, the written evidence of any other witness and the cross-examination of those witnesses called or tendered for cross-examination, any further documents that were tendered and the submissions of the applicant's advocate who would be able to draw out all factors in the appeal that were favourable to the applicant. The hypothetical appeal would also consider any new grounds put forward by the applicant and any explanation of any deficiency in the new claim that had been relied on by the decision-maker in reaching the decision being appealed.
(14) In deciding whether the appeal has a reasonable prospect of succeeding before a judge, the decision-maker would need to take account of the way that the judge hearing the appeal would reach his or her decision. The judge would reach his or her decision having anxiously scrutinised the claim under appeal in all its aspects. That decision-making process would involve these approaches to the evidence:
(a) The judge would consider everything that might tell in favour of the applicant.
(b) The judge would be applying a "somewhat modest test" to the new claim and would be evaluating it by rigorously applying the Rajalingam tests.
(c) The judge would consider any relevant factual or credibility findings of a previous decision-maker with care. In doing so, the judge would properly place considerable weight on any adverse credibility findings unless there were good reasons for not doing so.
(d) Before placing any weight on previous adverse findings, the judge would anxiously consider whether those findings had been reached with the appropriate degree of anxious scrutiny by the previous decision-maker.
(e) Where the adverse credibility or other findings of the previous decision-maker had been made whilst deciding a claim based on the perceived risk of persecution arising from gender-based discrimination, domestic or sexual violence, a forced arranged marriage or other similar factors, the judge would need to consider whether the previous decision-maker had approached the applicant's answers in interview or in evidence with anxious scrutiny and had made sufficient allowance for incomplete, inconsistent and inadequate answers. These considerations would particularly apply if the applicant had given her answers at a time when she was, or might have been, stressed, unaccompanied, vulnerable, struggling with language difficulties or had come from a significantly different cultural background from the interviewer or questioner.
(f) The judge would also be able to assess the credibility of the applicant having seen the entirety of her claim set out in writing and having seen and heard the applicant being questioned and cross-examined at the hearing.
(g) Where there are no previous judicial adverse credibility findings but only findings of the SSHD decision-maker, anxious scrutiny should normally permit the applicant an appeal hearing where uncertainties may be unravelled by evidence and where there is an opportunity for evidence to be adduced by an oral hearing process.
(h) The judge would scrutinise any adverse credibility findings he or she was minded to make to ensure that they were consistent with the evidence as a whole and were supported by adequate reasons.
(i) The judge would also weigh up all the evidence as a whole and would not first eliminate any evidence that was considered not to be credible and then reach a decision on the remaining evidence that had not been rejected.
(j) If the new claim was a sur place claim, the judge would consider it on the basis that it could well be true even if the applicant had lied when presenting his or her original claim.
(15) Judicial review test. The judge hearing the judicial review must be careful not to reach his or her own decision as to whether the appeal has a reasonable prospect of success before the hypothetical immigration judge. However, he or she must scrutinise the rejection decision of the decision-maker to ensure that he or she, in reaching that decision, took account of all relevant considerations concerned with that hypothetical appeal.
(16) Having considered all these matters, the judge hearing the judicial review will consider whether the fresh claim rejection decision is susceptible to judicial review on one or more of the available judicial review grounds.
Non-exercise of ST's Right of Appeal
(1) Discussion
(2) Adverse inference as a result of there being no appeal.
Issue 1 – First Further Representations Rejection Decision dated 10 January 2011.
(1) The decision.
(2) General discussion about the decision.
[Having set out verbatim the six critical credibility findings relating to specific factual features of ST's claim]
"As the above findings demonstrate, it was not accepted during your initial asylum application that you had established there is a risk that you will face persecution on your return to Pakistan. Ultimately, you have been found to be a less than credible witness and it was not accepted during your initial asylum application that your account of domestic violence falls under the 1951 Convention relating to refugees. Nor was it accepted that returning you to Pakistan would breach your Human Rights under articles 2 and 3 of the ECHR.
It is further considered that you have not provided strong enough evidence in your current representations that would lead the SSHD to detract from the original findings made in your initial asylum application."
(1) Finding: It was not credible that ST would leave her daughter in Pakistan with her parents if her husband had made threats to kill her daughter.
Anxious scrutiny consideration: ST was only, on her account, leaving her daughter temporarily in order to make a new life for both of them in Canada.
(2) Finding: It was not credible that ST's husband had threatened to kill their daughter since she was now nearly seven years old and she had provided no evidence to support the claim that she had suffered physical harm from him in the past.
Anxious scrutiny consideration: The 2011 COI refers to a 2009 SPARC Report that refers to harmful traditional practices aimed at children including female infanticide and honour killings. Moreover, it would have been unlikely that ST could have provided independent evidence of any physical harm her husband had caused their daughter since she had no access to any such evidence.
(3) Finding; It was not credible that ST had been beaten regularly by her husband since she had suffered no significant injuries as a result other than a small scar on her right temple.
Anxious scrutiny consideration: ST is not reported to have claimed to have suffered permanent significant injuries. She is reported as having claimed to have been regularly beaten but that the only surviving evidence of such beating was the small scar on her temple. In any event, the credibility finding appears to have overlooked the possibility, as is well-known, that domestic abusers are frequently able to cause repeated beatings in a way that does not leave permanent or long-term visible markings. Moreover, on ST's account, her last beating had been some time previously.
(4) Finding: It was not credible that ST's husband belonged to a political organisation called District Nazim and there no reference to such an organisation could be found on the internet.
Anxious scrutiny consideration: A search in Wikipedia reveals that a Nazim is, in Pakistan, an elected Government official similar to a mayor and a District Nazim is, therefore a similar official within a District. This suggests that this evidence was credible since it was possible that ST's husband was a politically appointed District Nazim or was connected to one rather than being a member of a non-existent political organisation of that name. The finding was also to the effect that it was not credible that DS's husband has not carried out the threats she claimed he had made but, according to her evidence, he had attempted to murder her and their daughter on four separate occasions, clear evidence, if this evidence is true, of her general evidence of her being persecuted by him and others at his behest and of her remaining in reasonable fear of further persecution if she was returned to Pakistan.
(5) Finding: It was not credible that ST could not accurately remember the date of her wedding and of her daughter's birth.
Anxious scrutiny consideration: ST explained that she was confused about dates and that she could verify that her daughter was born a few months after their wedding. Moreover, ST asked for a short time to obtain her documents which she said would confirm this sequence of events and the relevant dates and this was rejected. Given ST's youthful, force arranged marriage, her stress and unhappiness and her sheltered upbringing and background, it was possible that she had put the date of her marriage out of her mind and had become confused about these dates and their relationship with each other.
(6) Finding: It was not credible that ST could not safely relocate because, according to her explanation, "Pakistan is not very big".
Anxious scrutiny consideration: ST had had a very sheltered upbringing and had entered into an force arranged marriage when she was 16 and had, on her account, had led a very sheltered life since then whilst remaining in Pakistan. Her explanation may have been no more than an expression of her belief that was the product of such a life-style. Whether safe relocation was possible involved a consideration of the objective evidence as to the availability of safe accommodation for one such as ST and of whether her fear of persecution was, given her personal circumstances, reasonable in the light of that evidence.
(7) Finding: It was not credible that her husband had no interest in killing their daughter as he had only contacted her once by telephone after had she moved away from him and her family, likewise, had had no contact with him.
Anxious scrutiny consideration: It was necessary to consider that evidence in the round with all the other evidence. No explanation was given as to why this finding had been reached.
Issue 2 - Second Further Representations Rejection Decision dated 28 January 2011
(1) ST's claim to have converted to the Shi'a faith was not believed since there was no corroborative evidence to support that claim, she had not stated when she had converted to the Shi'a faith and she had not reported this conversion in her previous and recently submitted further claim.
(2) ST had not stated that she had been threatened or attacked on account of her change of religion and the supporting letter from the Hussainia Mission dated 25 January 2011, the date of the representations, was not accepted as evidence supporting her claim and was considered to be obtained purely in an attempt to strengthen her claim. The decision stated that the SSHD had attempted unsuccessfully to telephone the Mission but the telephone number given on its letter, which was a photocopy, had not been accessible when the number was called.
(3) ST would not in any event not be targeted on her return and could safely relocate since her conversion would not be treated as apostasy, there was no evidence that her conversion would become known to anyone else and Pakistan was a large country.
(4) ST was not at risk from attack from fundamentalist groups since ST would be able to gain assistance on her return and there was no evidence that she had been involved with such groups in the past.
Issue 3 – Overall Conclusion and Order
HH Judge Anthony Thornton QC
Note 1 In reliance on Application by Guardian News and Media Ltd and others in Her Majesty's Treasury (Respondent) v Mohammed Jabar Ahmed and others (FC) (Appellants) [2010] UKSC 1. [Back] Note 2 Throughout this judgment, I refer to the UK Border Agency and the SSHD collectively as the SSHD. [Back] Note 3 The FtT came into being in 2005, references to this tribunal in a pre-2005 context is to be taken to be a reference to its predecessor, the Immigration and Asylum Tribunal. [Back] Note 4 ST’s solicitors in the 2006 judicial review proceedings were not identified. The assumption that a different firm sent the 2008 further representations may, therefore be incorrect. [Back] Note 5 See paragraphs 106 - 107 below. [Back] Note 6 [2010] UKUT 216 (IAC) [Back] Note 8 R v Immigration Appeal Tribunal, ex parte Shah [1999] 2 AC 629, HL where the persecution arose against a Pakistani woman and where discrimination against her was the critical element in that persecution. [Back] Note 9 Ibid., paragraph 15. [Back] Note 10 Ibid [2010] EWCA Civ 116, paragraph 24. [Back] Note 11 Per Buxton LJ in WM, ibid. at paragraph 7. [Back] Note 12 Ibid., paragraph 6. See also Afghanistan v SSHD [2007] EWCA 535, CA. [Back] Note 13 1997, unreported. [Back] Note 14 At paragraph 40. [Back] Note 15 [2008] EWHC 1952 (Admin). [Back] Note 16 See paragraph 92 below. [Back] Note 17 Asylum Process Guidance. [Back] Note 18 [2005] UKAIT 00116. [Back] Note 19 [2007] EWCA Civ 852. [Back] Note 20 [2000] 3 All ER 449, CA. [Back] Note 21 [1999] FCA 719. [Back] Note 22 Paragraph 98 of Brooke LJ’s judgment which quotes verbatim from paragraph 67 of Sackville J’s judgment. [Back] Note 23 Paragraph 18 of Sedley LJ’s judgment. [Back] Note 24 [2010] EWCA Civ 116, CA at paragraph 24. [Back] Note 25 [2009] All ER (D) 245 at paragraph 39. [Back] Note 26 [2009] UKHL 6, HL [Back] Note 27 [2009] EWCA Civ 1550, CA at paragraph 8. [Back] Note 28 [2011] 2 All ER 772, CA at paragraph 16. [Back] Note 29 [2011] EWCA Civ 362, CA per Lloyd LJ particularly at paragraph 22. [Back] Note 30 See paragraphs 106 - 107 below. [Back] Note 31 See paragraphs 106 – 107 below. [Back] Note 32 See paragraph 61 above. [Back] Note 33 By virtue of section 8(7) of the AITCA which defines “safe country” as a country to which Part 2 of Schedule 3 of the AITCA applies. This Part of Schedule 2 does not apply to the UK. [Back] Note 34 See paragraphs 106 – 107 below. [Back] Note 35 [2002] UKIAT 00439, IAT. [Back] Note 36 See paragraph 41 above. [Back]