[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> K.A. AND OTHERS v. THE UNITED KINGDOM - 63008/11 - HECOM [2012] ECHR 1696 (27 August 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/1696.html Cite as: [2012] ECHR 1696

[New search] [Contents list] [Printable RTF version] [Help]

 

 

 

FOURTH SECTION

Application no.63008/11
K.A. and Othersagainst the United Kingdom
lodged on 11 October 2011

STATEMENT OF FACTS

 

The applicants are Pakistani nationals who live in Coventry. The first applicant was born in 1981 and is the mother of the second, third and fourth applicants who were born in 2003, 2007 and 2011 respectively. They were represented before the Court by Mr K. Tanner and Ms D. Sheahan, lawyers practising with Paragon Law in Nottingham and assisted by Mr E. Fripp, counsel.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant arrived in the United Kingdom on 20 August 2006 accompanied by the second applicant and submitted an application for asylum, claiming that she would be at risk of violence and honour killing in Pakistan at the hands of her husband, his family and his associates. She also claimed that she would face detention and prosecution by the Pakistani authorities as a result of false adultery and attempted murder charges that her husband had filed against her. She claimed that she was pregnant and that she would be ill-treated in prison and separated from her child, the second applicant, and, once born, from her baby, the third applicant.

1. Events in Pakistan

The first applicant claimed that, in 2001, she had entered into a difficult arranged marriage with a man who had ill-treated her and who had, after the birth of their first child in 2003, started to beat her. On 21 July 2006, she had decided to leave her husband to return to live in her parent’s home because of the violence.

In revenge, the first applicant’s husband had filed a First Information Report (“FIR”) against her (see below under relevant background information), falsely alleging that she had committed adultery the previous day with a man called YK (a man unknown to the first applicant); that the adulterous couple had assaulted and attempted to murder the husband’s servant because he had witnessed them commit adultery; and that the first applicant had fled from the family home stealing money and jewellery.

Later on 21 July 2006, the first applicant was arrested by the police at her parents’ home and detained for two days in poor conditions whilst the police investigated the charges against her. She was released on police bail and subjected to reporting conditions after her father paid a sum of money on her behalf. The first applicant’s lawyer in Pakistan warned her father that if the police formally charged her in the future, she would be unlikely to obtain bail and the criminal proceedings would take a long time.

Due to her fear of her husband, the first applicant’s father arranged for her to stay with a friend whilst on bail. He also attempted to obtain shelter for her in a state run “DarulAman” woman’s refuge (translated as a “house of peace”) in Lahore but was informed that they would be unable to provide her with shelter because of the ongoing criminal proceedings against her.

On 31 July 2006, the first applicant was informed by her lawyer that the police had decided to formally charge her with adultery under the laws known collectively as the “Hudood Ordinances” (see below under relevant background information). Her father then arranged for her departure from Pakistan. She left Pakistan on 19 August 2006 and travelled to the United Kingdom. On 31 August 2006, the first applicant claims that her “case was sent to the court” in Pakistan.

The first applicant claims that, since she has been in the United Kingdom, her husband has continued to threaten her family members in Pakistan and the police have continued to look for her because she has breached her bail conditions. Her husband has not sought to lodge divorce proceedings and the first applicant fears that this is so that he will be able to draw out his intended ill-treatment and humiliation of her upon her return to Pakistan.

She also claims that her father, who is over 65 years of age, has become seriously ill having had a heart attack and a stroke and continuing to suffer from heart disease and arthritis. She claims that the family’s finances have deteriorated because her father is unable to work and needs expensive medical treatment and that, as a result, her parents have stopped paying for a lawyer.

2. The refusal of the first applicant’s asylum claim and the findings of the then Asylum and Immigration Tribunal

On 16 January 2008, the Secretary of State refused the first applicant’s asylum application. It was accepted that her husband might be hostile to her in Pakistan but it was considered that she would have her father’s protection and could internally relocate to a woman’s crisis centre or refuge if necessary. If there were any outstanding criminal charges against her, it was considered that she would receive a fair hearing in Pakistan.

On 5 March 2008, an Immigration Judge at the then Asylum and Immigration Tribunal (“AIT”) dismissed her appeal against the Secretary of State’s decision. The Immigration Judge accepted that the first applicant’s account of events in Pakistan was true and further accepted that the FIR (which stated that the first applicant had been accused of adultery with a named man, attempted murder and theft) was a genuine document. The Immigration Judge also accepted that the first applicant had been arrested and detained for two days as a result of the FIR and that her lawyer in Pakistan had been concerned that, if the charges were officially registered against her, she would be detained without bail. Finally, the Immigration Judge accepted that the first applicant’s father had decided that it would be best for her to leave Pakistan and that the serious charges against her were a plausible reason why the owner of the DarulAman women’s refuge in Lahore had not been prepared to allow the first applicant to stay there.

In the circumstances, the Immigration Judge found that, at the time that she had left Pakistan, the first applicant had had a well-founded fear of persecution on account of being a member of a particular social group, namely a woman charged with committing adultery who would have been at real risk of imprisonment in Pakistan under the Hudood Ordinances. He also found that, if she had been re-arrested, she would have had difficulty in obtaining further bail.

However, the Immigration Judge concluded that the first applicant no longer faced any risk of imprisonment because of the introduction of legislation in Pakistan in the form of the Protection of Women (Criminal Laws Amendment Act) Act 2006 (“PWA 2006”) which had repealed those parts of the Hudood Ordinances that related to charges of sexual misconduct, in particular the offence of “zina” (a generic term covering, inter alia, adultery and non-marital, consensual sex – see below under background information). Additionally, the Immigration Judge considered that the applicant would not be at risk of honour killing from her husband because she had the protection of her family and because the evidence suggested that honour killings occurred in rural parts of the country whereas the first applicant had lived in Lahore and came from a relatively prosperous background. Additionally, even if the first applicant lacked protection in her home area in Pakistan, the Immigration Judge considered that she would have the option of obtaining shelter in a DarulAman woman’s shelter. In that regard, it was considered that the only reason that she had been refused shelter before had been because of the outstanding criminal charges against her which would no longer be a barrier on her return because of the repeal of the relevant parts of the Hudood Ordinances relating to sexual misconduct.

On 27 March 2008, a Senior Immigration Judge ordered reconsideration because he was satisfied that the Immigration Judge may have erred in law when he had assessed the current risk to the first applicant upon return.

On 25 September 2008, during a case management review hearing, it was agreed that the first applicant’s appeal would be suitable as a “country guidance” case (see below under domestic law and practice) on the effect of the PWA 2006 and related matters in Pakistan.

On 8 January 2009, a Panel of the AIT concluded that the Immigration Judge had made a material error of law because his findings as to the effect of the PWA 2006 were fundamentally flawed. The Panel directed that the next Tribunal should carry out a fresh assessment of the risk faced by the first applicant upon return to Pakistan based upon the factual findings made by the Immigration Judge.

3. The evidence before the Upper Tribunal

The appeal was re-heard before the Upper Tribunal over two days in April 2010. In addition to a large amount of general background evidence relating to the prevalence and spread of domestic violence and problems facing women relocating in Pakistan (some of which is set out below), the Upper Tribunal heard oral evidence from three experts. The first two experts, Drs Lau and Balzani, were instructed by the applicants and had written two reports for the appeal.

The third expert, Dr Shah, was instructed by the Secretary of State and had prepared one report for the appeal. During the hearing, his cross‑examination by the applicants’ counsel was cut short when counsel for the Secretary of State conceded that Dr Shah was only being relied upon as an expert on Pakistani law and practice and not an expert on other matters in his report, including for example the prevalence of honour killing in Pakistan.

4.    The findings of the Upper Tribunal

The Upper Tribunal’s determination, the country guidance of KA and Others (domestic violence risk on return) Pakistan CG [2010] UKUT 216 (IAC), was handed down in July 2010. Having reference to the evidence before it, the Upper Tribunal set out the following general guidance:

“In general persons who on return face prosecution in the Pakistan courts will not be at real risk of a flagrant denial of their right to a fair trial, although it will always be necessary to consider the particular circumstances of the individual case.

Although conditions in prisons in Pakistan remain extremely poor, the evidence does not demonstrate that in general such conditions are persecutory or amount to serious harm or ill-treatment contrary to Article 3 ECHR.

The Protection of Women (Criminal Laws Amendment) Act 2006 (“PWA”), one of a number of legislative measures undertaken to improve the situation of women in Pakistan in the past decade, has had a significant effect on the operation of the Pakistan criminal law as it affects women accused of adultery. It led to the release of 2,500 imprisoned women. Most sexual offences now have to be dealt with under the Pakistan Penal Code (PPC) rather than under the more punitive Offence of Zina (Enforcement of Hudood) Ordinance 1979. Husbands no longer have power to register a First Information Report (FIR) with the police alleging adultery; since 1 December 2006 any such complaint must be presented to a court which will require sufficient grounds to be shown for any charges to proceed. A senior police officer has to conduct the investigation. Offences of adultery (both zina liable to hadd and zina liable to tazir) have been made bailable. However, Pakistan remains a heavily patriarchal society and levels of domestic violence continue to be high.

Whether a woman on return faces a real risk of an honour killing will depend on the particular circumstances; however, in general such a risk is likely to be confined to tribal areas such as the North West Frontier Province (NWFP) and is unlikely to impact on married women.

Pakistan law still favours the father in disputes over custody but there are signs that the courts are taking a more pragmatic approach based on the best interests of the child.

The guidance given in SN and HM (Divorced women – risk on return) Pakistan CG [2004] UKIAT 00283 and FS (Domestic violence – SN and HM – OGN) Pakistan CG [2006] 000283 remains valid. The network of women’s shelters (comprising government-run shelters (DarulAmans) and private and Islamic women’s crisis centres) in general affords effective protection for women victims of domestic violence, although there are significant shortcomings in the level of services and treatment of inmates in some such centres. Women with boys over 5 face separation from their sons.

In assessing whether women victims of domestic violence have a viable internal relocation alternative, regard must be had not only to the availability of such shelters/centres but also to the situation women will face after they leave such centres.”

Assessing the individual risk to the first applicant on return to Pakistan in the individual circumstances of her case, the Upper Tribunal made the following findings.

a. Past ill-treatment

The Upper Tribunal stated that they had no doubt that, taken cumulatively, her interrelated experiences in Pakistan (domestic violence experienced at the hands of her husband; his filing of a FIR against her leading to her arrest and detention for two days; the ease with which he had been able to have her detained and to inflict damage to her reputation; his later threat to kill her; and the ongoing harassment of her parents) had amounted to persecution and serious harm. They therefore went on to consider the question of whether such persecution or harm would be repeated upon her return to Pakistan.

b. Risk of future criminal proceedings and the availability of bail

Regardless of whether or not the police had or had not formally charged her before the first applicant had fled Pakistan, the Upper Tribunal proceeded on the basis that formal charges would be a likely next step upon her return and that, if such a step had not happened already, it would happen when the police came to learn of her return to her home area. The Upper Tribunal was also satisfied that, notwithstanding the reforms ushered in by the PWA 2006, the first applicant would still face charges of zina under the Hudood Ordinances (see below under relevant background information on Pakistan) because the FIR had been issued under the old law and the PWA 2006 did not have retrospective effect.

The Upper Tribunal noted however that such charges were “bailable” and that the procedure for bail in the first applicant’s case would be governed by the reformed law. Furthermore, the police investigation of her case would now have to be conducted at a more senior level. Having regard to the provision in Pakistani law for lawyers to arrange for pre-arrest bail hearings and the fact that the first applicant’s father had already paid a lawyer to deal with her case, it was considered that the first applicant would not be at risk of detention except by order of a court. It was also considered that she would be likely to get automatic bail on both the adultery and the attempted murder charges.

However, the Upper Tribunal acknowledged that, if they had found that she would not get automatic bail, they would have been likely to find that she would not have been granted discretionary bail essentially because she would be someone who had absconded from the jurisdiction by fleeing abroad and who had been responsible for a lengthy delay in the criminal process.

The Upper Tribunal noted that, even if not detained, the first applicant would remain in the criminal justice process and continue to face prosecution under an old law which would mean that her husband would not need to worry about his false accusations resulting in him being charged. The trial process was likely to be prolonged and it was likely that the first applicant’s husband would seek to use the frequent court appearances as a means of harassing the first applicant.

c. Child custody issues

In relation to any child custody issues, the Upper Tribunal found that there was no evidence to suggest that the first applicant’s husband had any ongoing interest in his daughters, the second and third applicants. He had never raised such an issue earlier or made any such threats in his phone calls to the first applicant’s parents.

d. Risk of honour killings

In relation to the risk of the first applicant being the victim of an honour killing, the Upper Tribunal still held that:

“Given our earlier assessment of the problems of honour killings we do not think it is likely that her husband will actually seek to kill her or have her killed: in addition to two factors we have already identified (her home area not being an area of the country where Jirga councils hold sway; hers being an urban, not a rural area) we note that she is a married woman and that married women are much less likely to be the target of honour killings than single women. In addition, his father is a lawyer whose family’s reputation (we infer) would suffer if his son sought to take the law into his own hands; the dispute has arisen in Lahore involving two families with professional status. This is a far cry from the tribal-based genesis of most continuing occurrences of honour killings.”

e. General risk to the applicant in her home area

However, in relation to the risk to the first applicant in her home area, the Upper Tribunal held that:

“Equally, however, it is accepted that the appellant’s husband has previously made a threat to kill the appellant and her brother and that he has continued to visit her parents’ home and to make clear that he will not stop his vendetta against the appellant. We think it reasonably likely that when she returns he will repeat his threatening and intimidating behaviour and will see the ongoing court proceedings as a way of frightening and demoralising her. We remind ourselves that persecution can arise from threats (certainly threats to kill) as well as from acts: see Article 9 of the Qualification Directive [see relevant European Union law below]. In our judgment, whilst her likely encounter with the Pakistan criminal justice process will not in itself give rise to persecutory harm, it will do so when other circumstances are added to the equation, in particular the circumstance that her husband is very likely to continue to threaten and intimidate her.”

The Upper Tribunal found that there would not be effective protection in the first applicant’s home area from her husband having regard both to the fact that, in 2006, the local police had already shown that they had taken the first applicant’s husband’s side in matters and the fact that her parents were of advancing age and may be less able to deal with the social pressures brought to bear by her husband.

Furthermore, although the Upper Tribunal recorded that, if criminal proceedings were pursued against her, they considered it highly likely that her trial would result either in a Session court finding that there was no case to answer or in her acquittal, they accepted that her overall circumstances whilst awaiting trial would give rise to a real risk of persecutory harm in her home area.

f. Possibility of internal relocation

Nevertheless, the Upper Tribunal, noting that Pakistan was a very large country with a large population, did not accept that the first applicant would be tracked down by her husband’s family or the authorities if she were to internally relocate to another area of Pakistan. In particular, there was no evidence to suggest any centralised database or that the state agencies either at a federal or provincial level held sophisticated nationwide databases on their citizenry. The Upper Tribunal considered that there was only a remote possibility of the appellant’s husband’s family being able to trace her through official or unofficial channels.

The Upper Tribunal also concluded that it would be reasonable to expect the first applicant to relocate and seek assistance from DarulAman shelters for women in her position. Acknowledging that the services offered by the shelters were “far too few and had many shortcomings, even in the private NGO sector,” the Upper Tribunal nevertheless did not accept that women returning to Pakistan who sought to access such shelters would be at real risk either of being denied assistance or of receiving ill treatment in them. Nor did the Upper Tribunal consider the fact that the shelter workers might come to know that the first applicant faced criminal charges would cause her to be turned away, since their services were particularly designed to help women fleeing from husbands who had made false accusations against them.

The Upper Tribunal accepted that the fact that the first applicant had no history of employment, only modest education and would lack male support away from her home area would give rise to some degree of hardship for her and her children. However, the Upper Tribunal observed that the first applicant and her children had no known health problems and that she had already shown a certain degree of resourcefulness in having been able to leave her husband’s home, then seeking safety first with her parents and then with friends before travelling to the United Kingdom to claim asylum.

Further, it was considered that the fact that the first applicant had the support of her family was an extremely important background consideration in her case. Her family had not disowned her and had shown in the past that they had been ready and able to help her with obtaining legal and financial assistance. In that regard, it was considered that the first applicant’s family’s standard of living had not declined and that she had three other sets of relatives, none of whom were said to be poor or to have expressly turned their back on her. Given the lengths which her father and mother had gone to before to assist her, the Upper Tribunal did not consider that they would leave her to relocate elsewhere in Pakistan without any kind of family assistance.

Whilst accepting that the first applicant would face difficulties in her home area as a result of her husband’s past vendetta against her and his likely continued pursuit of her through the courts, the Upper Tribunal did not consider that her history would become known in other parts of Pakistan or that she would need to make it known to those she associated with. From the background evidence, the Upper Tribunal considered that in the larger cities single women with children could survive and that there was not the same level of social scrutiny that occurred in the smaller towns and rural areas. The Upper Tribunal therefore concluded that the applicants would have a viable option of internal relocation.

5.    Further proceedings

The applicant applied for permission to appeal to the Court of Appeal claiming, inter alia, that the Upper Tribunal’s findings concerning honour killings in Pakistan were unsustainable and in contradiction to the available background information; that the Upper Tribunal had wrongly relied on evidence submitted by Dr Shah on his view of honour killings in Pakistan even though the Secretary of State had given a specific concession that she did not rely upon his evidence other than as an expert on Pakistani law; and that the Upper Tribunal’s finding that it would not be unreasonable or unduly harsh for the first applicant to internally relocate to a women’s shelter or otherwise to avoid ill-treatment within Pakistan was flawed.

On 1 November 2010, the Upper Tribunal refused that application for permission to appeal. First, it considered that it had properly evaluated the existing evidence regarding the prevalence of honour killings and whether returned Pakistani women with family problems were exposed to a real risk of honour killings. Second, as to the factual question of the concession made before the Upper Tribunal concerning the scope of Dr Shah’s expertise, it was accepted that the concession had been made and relied upon by the applicants’ Counsel but it was not accepted that the Upper Tribunal had been precluded from relying on Dr Shah’s evidence on matters unrelated to Pakistan law even though the Secretary of State had not relied upon that evidence at the hearing. Further, the Upper Tribunal had made it clear that except in respect of matters of Pakistan law they had found the evidence of all three experts of limited assistance since it added little to the background sources on which they drew. Third, it was considered that the Upper Tribunal’s reasons for finding that the first applicant would be admitted to a woman’s shelter had plainly taken into account the evidence about state and private sector provisions for victims of domestic violence. Finally, it was pointed out that the Upper Tribunal had not accepted that the first applicant would be consigned to an indefinite existence in a shelter.

6. Application for permission to appeal to the Court of Appeal

The applicants then renewed their application for permission to appeal at the Court of Appeal relying on substantially the same grounds as before.

On 24 January 2011, the Court of Appeal refused their application stating that the determination of the Upper Tribunal was comprehensive in its examination of the evidence and was closely and fully reasoned. Differences as to the weight to be given to various items of evidence could not found an appeal.The central decision was considered to be the possibility of relocation in Pakistan and the reasons given by the Upper Tribunal were cogent.

On 14 April 2011, the Court of Appeal refused a further renewed application for permission to appeal. Gross LJ agreed with the reasoning of the Upper Tribunal of 1 November 2010 and added that there was no error of law in the question of the risk posed by honour killing or the right to bail. Giving the judgment of the Court, he stated:

“It would be difficult on [Mr Fripp - counsel for the applicants’] submission to see why almost any battered or falsely accused wife from Pakistan would not be entitled to Article 3 or Article 8 protection. It is true their evidence would require a certain level of credibility; but having once achieved that, it is difficult to see where Mr Fripp’s submission would stop. The consequence is that one needs to re-examine the premise, and the premise here is that Mr Fripp’s true complaint against the Upper Tribunal is in truth one of fact, not law, and so that ground fails.

...

So far as concerns relocation, Mr Fripp’s submission would effectively, even though again he disclaims it, serve to exclude relocation as a practical resolution of the matter. Let us strip it down to its common sense essentials: the applicant, and I have no want of sympathy for her predicament, has a dispute with her husband and his family, not with the Pakistani state. What has been said by the Tribunal is that it is reasonable and not unduly harsh for her to move elsewhere in Pakistan. If the Upper Tribunal has erred in this regard, that to me is an error of fact not one of law. Again, the consequences of Mr Fripp’s submission being otherwise right are unacceptably wide.

...

I turn finally to the point which I regarded as potentially the most troubling, the concession point [the Secretary of State’s concession regarding the evidence of Dr Shah]. The answer, as it seems to me, however, is that [the Upper Tribunal] was right. Relatively little turns on it. The key question was not anything said by Dr Shah, but the underlying material. In my judgment the Upper Tribunal was entitled to reach the conclusion it did on that material. An error, if error it was, in that regard would be factual. It follows that if the Upper Tribunal was in error in placing excessive reliance on Dr Shah, it was not material.”

B.    Relevant domestic law and practice

1.  Asylum and human rights claims

Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention.

Appeals in asylum, immigration and nationality matters were until 14 February 2010 heard by the AIT. Section 103A of the Nationality, Immigration and Asylum Act 2002 provided that a party to an appeal could apply to the High Court, on the grounds that the AIT had made an error of law, for an order requiring the AIT to reconsider its decision on the appeal.The High Court could make such an order if it thought that the AIT may have made an error of law.All applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the AIT.If the immigration judge refused to make an order for reconsideration, the first applicant was able to renew the application to the High Court, which would consider the application afresh.

Since 15 February 2010, appeals in asylum, immigration and nationality matters have been heard by the First-tier Tribunal (Immigration and Asylum Chamber). Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

2.  Country guidance determinations in relation to the position of women in Pakistan

Country guidance determinations of both the former AIT and the Upper Tribunal are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the AIT or Upper Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.

In the country guidance determination of SN & HM (Divorced women‑ risk on return) Pakistan CG [2004] UKIAT 00283, the then Immigration Appeal Tribunal considered the position of women subject to domestic violence in Pakistan and set out guidelines for Tribunals considering such cases. The general questions which had to be asked in cases of the kind were the following:

“(a) Has the claimant shown a real risk or reasonable likelihood of continuing hostility from her husband (or former husband) or his family members, such as to raise a real risk of serious harm in her former home area?

(b) If yes, has she shown that she would have no effective protection in her home area against such a risk, including protection available from the Pakistani state, from her own family members, or from a current partner or his family?

(c) If yes, would such a risk and lack of protection extend to any other part of Pakistan to which she could reasonably be expected to go (Robinson [1997] EWCA Civ 2089, AE and FE [2002] UKIAT 036361), having regard to the available state support, shelters, crisis centres, and family members or friends in other parts of Pakistan?

The appeal should be allowed under the Refugee Convention or Article 3 ECHR only if, on the facts as at the Adjudicator or Tribunal hearing, having regard to the background evidence and jurisprudence, a positive answer can be given to each of these questions.”

In the country guidance determination of FS (domestic violence –SN and HM – OGN) Pakistan CG [2006] UKAIT 00023, the AIT held, inter alia, that the background evidence on the position of women at risk of domestic violence in Pakistan and the availability to them of State protection remained as set out in SN & HM. The AIT noted that it appeared that the intention of the Pakistani authorities was to improve State protection for such women but that progress was slow. Every case was still to turn on its particular facts and was to be analysed according to the step by step approach set out inSN & HM, with particular regard to the support on which the appellant could call upon if she was returned.

3.  (EM (Lebanon) (FC) v. Secretary of State for the Home Department (Respondent) UKHL 64 (2008)

In the above case, the House of Lords considered the claim of a Lebanese asylum seeker to remain in the United Kingdom to avoid, upon return to Lebanon, the automatic transfer of the custody of her 12 year old son to his father, who had been violent to her and who her son did not know, and the subsequent adverse impact upon the family life of her and her son.

Their Lordships noted that the child had not seen his father since the day that he had been born, nor had he had any contact with any of his father’s relatives. Thus, they considered that, realistically, the only family which existed consisted of the applicant and her son. The evidence made plain that the bond between the applicants was one of deep love and mutual dependence which could not be replaced by a new relationship between the child and his father who had inflicted physical violence and psychological injury on his mother; who had been sent to prison for failing to support his mother; who the child had never consciously seen; and towards whom the child understandably felt strongly antagonistic. The Lordships also considered that such family life could not be replaced by a new relationship with an unknown member or members of his father’s family; and that in no meaningful sense could occasional supervised visits by the applicant mother to her son at a place other than her home, even if ordered by the Lebanese courts (and there was no guarantee that they would be ordered), be described as family life.

In the particular circumstances of the case, as set out above, their Lordships unanimously found that the return of the applicants to Lebanon would “flagrantly violate or completely deny and nullify” their rights under Article 8 of the Convention.

C.    Relevant European Union Law

Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted: “the Qualification Directive”) has the objective,inter alia, of ensuring EU Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble).

The Qualification Directive was transposed into domestic law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006.

Article 6 of the Qualification Directive states:

“Actors of persecution or serious harm

Actors of persecution or serious harm include:

(a) the State;

(b) parties or organisations controlling the State or a substantial part of the territory of the State;

(c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7.”

Article 7 of the Qualification Directive sets out that

“Actors of protection

1. Protection can be provided by:

(a) the State; or

(b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State.

2. Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.

3. When assessing whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph 2, Member States shall take into account any guidance which may be provided in relevant Council acts.”

Article 8 of the Qualification Directive provides that:

“Internal protection

1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.

2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.

3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.”

Article 9 provides that:

“Acts of persecution

1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must:

(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).

2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:

(a) acts of physical or mental violence, including acts of sexual violence;

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;

(c) prosecution or punishment, which is disproportionate or discriminatory;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);

(f) acts of a gender-specific or child-specific nature.

3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.”

Article 15 provides that:

“Serious harm

Serious harm consists of:

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”

D.    Relevant Background information about Pakistan

1.  FIRs and arrest procedures in Pakistan

According to the United States of America Department of State Country Report on Human Rights Practices – Pakistan 2011, published in May 2012 (“the USSD Report 2011”), an FIR is the legal basis for any arrest. Police may initiate FIRs when complainants offer reasonable proof that a crime was committed. An FIR allows police to detain named suspects for 24 hours, after which only a magistrate can order detention for an additional 14 days, if the police show that such detention is material to the investigation. In practice, the police did not fully observe these limits on detention. It was reported that authorities frequently issued FIRs without supporting evidence to harass or intimidate detainees or did not issue them when adequate evidence was provided unless bribes were paid.

Furthermore, in respect of bail, the USSD Report 2011 stated that:

“Police routinely did not seek a magistrate’s approval for investigative detention and often held detainees without charge until a court challenged the detention. When requested, magistrates approved investigative detention without requiring further justification. In cases of insufficient evidence, police and magistrates sometimes colluded to issue new FIRs, thereby extending detention beyond the 14-day period.

The district coordination officer may recommend preventive detention for as long as 90 days to the provincial home department and, with the approval of the Home Department, can extend it for an additional 90 days. The law stipulates that detainees must be brought to trial within 30 days of their arrest.

The law defines bailable and nonbailable offenses. On April 18, President Zardari signed the Code of Criminal Procedure (Amendment) Bill, 2011, which grants statutory bail to prisoners undergoing trial and to convicts whose trials and appeals are pending over a prescribed time limit. Under the law prisoners undergoing trial are entitled to statutory bail if charged with any offense not punishable by death and if they have been detained for one year. In the case of an offense punishable by death, the accused is eligible for statutory bail if the trial has not been concluded in two years.

Judges sometimes denied bail at the request of police or the community, or upon payment of bribes. In some cases trials did not start until six months after the FIR, and in some cases individuals remained in pre-trial detention for periods longer than the maximum sentence for the crime with which they were charged. SHARP estimated that in 2010 approximately 55 percent of the prison population was awaiting trial. This situation remained unchanged due to a lack of change in the judicial system. The high number of inmates awaiting trial remained a large burden on the country’s jails. In some cases detainees were informed promptly of charges brought against them.”

2.  The Hudood Ordinances

In 1979, the following four Hudood Ordinances (laws enacted by the military ruler Zia-ul-Haq to implement Islamic law) were enforced. The first was the offence of “zina” (a man and a woman are said to commit zina if they wilfully have sexual intercourse without being married to each other – this encompasses both adultery and non-marital, consensual sex). The second was the offence of “qazf” (the false accusation of zina). The third was an offence against property (theft). The final ordinance related to prohibition of alcohol and narcotics and gambling.

The Federal Shariat Court of Pakistan enforced the 1979 Hudood Ordinances and provided for Koranic punishments, including death by stoning for adultery, as well as jail terms and fines.

The WPA 2006 amended the Hudood Ordinance and the procedure for prosecution of the offence of “zina” has changed. It is no longer possible for husbands to have FIRs registered at the local police station in such cases. A FIR can only be lodged if a judge agrees to it.

However, FIRs alleging zina that were registered before 1 December 2006 can still proceed under the Hudood Ordinances.

The USSD Report 2011 reported that:

“In December 2010 the Federal Shariat Court (FSC) declared several clauses of the law un-Islamic and unconstitutional. The verdict sought to reinstate certain provisions of the 1979 Hudood Ordinance and expand the FSC’s jurisdiction in cases of adultery and false accusations of adultery. The FSC directed its judgment to the federal government, as well as the provincial and Islamabad high courts for implementation. The federal government appealed the FSC’s decision to the Supreme Court in May. The Supreme Court had not set a hearing date by year’s end.”

3.  Evidence in respect of domestic violence in Pakistan

The USSD Report 2011 reported that:

“No specific law prohibits domestic violence, which was a widespread and serious problem. Husbands reportedly beat and occasionally killed their wives. Other forms of domestic violence included torture, physical disfigurement, and shaving the eyebrows and hair off women’s heads. In-laws abused and harassed the wives of their sons. Dowry and family-related disputes often resulted in death or disfigurement by burning or acid.

According to the Aurat Foundation, the media reported 8,539 cases of violence against women, a decrease from 2010. The foundation’s data showed there were reports of 1,575 women killed, 2,089 abducted, 610 victims of domestic violence, 110 sexually assaulted, 44 victims of acid attacks, 29 victims of burning, 827 raped, and 758 as having committed suicide. The foundation noted that their analysis attributed the reduction in reporting to a declining law and order situation in Sindh and Balochistan as well as flooding in July.

According to a 2008 HRCP [“Human Rights Commission of Pakistan”] report, 80 percent of wives in rural Punjab feared violence from their husbands, and nearly 50 percent of wives in developed urban areas admitted that their husbands beat them.

Women who tried to report abuse faced serious challenges. Police and judges were sometimes reluctant to take action in domestic violence cases, viewing them as family problems. Instead of filing charges, police typically responded by encouraging the parties to reconcile. Abused women usually were returned to their abusive family members. Women were reluctant to pursue charges because of the stigma attached to divorce and their economic and psychological dependence on relatives. Relatives were hesitant to report abuse due to fear of dishonoring the family.

To address societal norms that frowned on victims who reported gender-based violence and abuse, the government established women’s police stations, staffed by female officers, to offer women a safe haven where they could safely report complaints and file charges. Men are also able to utilize these police stations. The 12 women’s police stations in the country were located in Karachi (3), Larkana (1), Hyderabad (1), Sukkur (1), Lahore (1), Faisalabad (1), Rawalpindi (1), Peshawar (1), Abbottabad (1), Quetta (1), and the Islamabad Capital Territory (ICT) in IslamabadCity. Women’s police stations continued to struggle with understaffing and limited equipment. Training for female police officers and changing cultural assumptions of male police officers also remained challenges. Due to restrictions on women’s mobility and social pressures related to women’s public presence, utilization of women’s police centers was limited, but NGOs and officials reported that use was growing and that more centers were needed.

The government operated the Crisis Center for Women in Distress, which referred abused women to NGOs for assistance. A total of 26 government-funded Shaheed Benazir Bhutto centers for women across the country provided women with temporary shelter, legal aid, medical treatment, and psychosocial counselling. These centers served women who were victims of exploitation and violence. Victims later were referred to “darulaman” (approximately 200 centers for women and child victims established with funds from the Provincial Women Development Department). These centers provided shelter, access to medical treatment, limited legal representation, and some vocational training. Many government centers were full beyond capacity and lacked sufficient staff and resources. In some cases women were abused at the government-run shelters, found their movements severely restricted, or were pressured to return to their abusers.”

An article by the Asian Human Rights Commission dated 5 February 2010 and entitled “Pakistan: Constant violence against women in 2009” reported:

“2009 has been another tragic year for women rights in Pakistan. Many cases have been reported, in which women were abducted, assaulted, raped, murdered, forced to marriage or traded to resolve disputes. According to Aurat Foundation, a non-governmental organization working for women empowerment in Pakistan, between January and June last year, a total of 4,514 incidents of violence against women were reported. Victims, if they dare reporting these facts, have to face police obstruction and societal pressure. If some of these facts can be imputed to feudal societies and tribal traditions, the most worrying aspect of women rights violations is that some practices and ideas are simply entrenched in the mindsets.”

The Human Rights Watch “World Report 2012: Pakistan” reported that:

“Mistreatment of women and girls—including rape, domestic violence, and forced marriage—remains a serious problem. Public intimidation of, and threats to, women and girls by religious extremists increased in major cities in 2011.

In a disappointing development, the government failed to honor its commitment to reintroduce the Domestic Violence (Prevention and Protection) Bill, unanimously passed by the National Assembly in August 2009, but lapsed after the Senate failed to pass it within three months as required under Pakistan’s constitution. In April the Supreme Court upheld a 2005 ruling by the provincial Lahore High Court acquitting five of the six men accused of the gang-rape of Mukhtar Mai, a villager from Muzaffargarh district in Punjab province, who was raped on the orders of a village council in 2002.”

The United Kingdom Border Agency Country of Origin Information Report on Pakistan of 7 June 2012 reported that:

“24.95 The HRCP [“Human Rights Commission of Pakistan”] Report 2011 stated:

‘Incidents of domestic violence seemed to have increased in the Punjab province or perhaps were more adequately reported, while Sindh showed a downward trend and cases in Balochistan remained largely unmonitored and unreported. Parts of Khyber Pakhtunkhwa remained under threat of religious militancy and the state of Afghan refugees, particularly the condition of women, was inadequately monitored...

It was reported at a discussion organized by InsaniHaqooqIttehad, a conglomerate of civil society organizations based in Islamabad, that more than 80 percent [of] women were subject to physical or psychological domestic violence, which often went unreported since 66 percent women accepted it as their fate, 33 percent merely complained while less than 5 percent took concrete steps against it.’

24.96 On 20 February 2012, The Express Tribune reported that the Domestic Violence (Prevention and Protection) Bill was unanimously passed by the upper house of parliament and would come into force once signed by President AsifZardari. ‘The law classifies domestic violence as acts of physical, sexual or mental assault, force, criminal intimidation, harassment, hurt, confinement and deprivation of economic or financial resources... Those found guilty of beating women or children will face a minimum six months behind bars and a fine of at least 100,000 rupees ($1,100).’

24.97 However, on 16 April 2012, The Express Tribune reported that ‘Clerics at Wafaq-ul-MadarisAl-ArabiaPakistan have demanded a ‘review’ of the Domestic Violence Bill from the government, so that a consensus can be achieved on the law before it is presented to the parliament. According to a statement from the seminary’s clerics, certain controversial clauses of the bill might destroy the family structure of the Muslim community... [The] JamiatUlema-e-Islam-Fazl (JUI-F) has already asked the government not to pursue the current form of the legislation.’

24.98 The HRCP Report 2011 recorded 366 cases of domestic violence against women in 2011, as reported by the media, and noted that ‘Of these, nearly all victims were married women with only two of them unmarried, five widows, and two divorced women, and the perpetrators were mostly husbands or other close relatives. The families were nearly all of them from the working class with only one victim being a female doctor. The reasons given for the violence were domestic dispute and the suspicion of illicit relations.’

24.99 The Aurat Foundation’s press briefing, ‘Incidents of Violence against Women in Pakistan: Reported during 2011’, undated, cited 610 cases of domestic violence during the reporting period.

24.100 On the types of violence, the HRCP Report 2011 cited “Amongst the worst hit were 38 women who suffered from acid attacks, 47 were set on fire, 81 suffered attempted murder, 98 were tortured, 10 women had their heads shaved as part of public humiliation, and nine women had their nose or other parts of the body amputated as punishment.”

24.101 On 12 December 2011, The Express Tribune reported that the Acid Control and Acid Crime Prevention Bill 2010 was unanimously passed by the Senate.

24.102 The same source added that ‘The purpose of the bill is to control the import, production, transportation, hoarding, sale and use of acid to prevent misuse and provide legal support to acid and burn victims... The amendment in Section 336-B [of the Pakistan Penal Code] states: ‘Whoever causes hurt by corrosive substance shall be punished with imprisonment for life or imprisonment of either description which shall not be less than fourteen years with a minimum fine of Rs1 million’.’

24.103 The AHRC Report 2010 cited that the Acid Survivor’s Foundation (ASF) recorded 48 acid attacks in 2009. ‘ASF figures suggest family members perpetrate nearly half of acid attacks (48 percent), rejected suitors are responsible for a quarter (25 percent), and ‘collateral damage’ accounts for 12 percent.’

24.104 The Aurat Foundation reported 44 cases of acid attacks and 29 cases of stove burning, during 2011.

...

24.106 An article by IRIN, dated 11 March 2008, stated that “Domestic violence is endemic in Pakistan.” The report noted that in the eight years since the publication of HRW’s [Human Rights Watch] 1999 report on domestic violence in Pakistan, there was little evidence that any major changes had been made in the country. The article quoted a leading lawyer and rights activist as saying “Domestic violence is very widespread. It is tied in to the lack of empowerment of women in our society.”

24.107 The same source noted that:

‘At times, the violence inflicted on women takes on truly horrendous forms. The Islamabad-based Progressive Women’s Association (PWA), headed by ShahnazBukhari, believes up to 4,000 women are burnt each year, almost always by husbands or in-laws, often as ‘punishment’ for minor ‘offences’ or for failure to bring in a sufficient dowry. The PWA said it had collected details of nearly 8,000 such victims from March 1994 to March 2007, from three hospitals in the Rawalpindi-Islamabad area alone... A lack of safe shelters for women victims of domestic violence, limited awareness of the issue and the absence of specific legislation all compound the problem. The result is that thousands of women are victims of severe violence within their homes, with most cases going unreported and the culprits consequently escaping any punishment for their crime.’”

4.  Evidence in respect of honour killings

The USSD Report 2011 reported that:

“Women were victims of various types of societal violence and abuse, including honor killings; facial, bodily, and genital mutilation; forced marriages; imposed isolation; and being used to settle disputes. Women often were treated as chattel, and perpetrators were often husbands and other male family members.

Hundreds of women reportedly were victims of honor killings. Many cases went unreported and unpunished. The Aurat Foundation reported 382 honor killings between January and June and estimated that less than 2 percent of all honor killings were reported. The practice of “karo-kari” continued across the country. (Karo-kari is a form of premeditated honor killing that occurs if a tribal court or jirga determines that adultery or some other “crime of honor” occurred. Karo-kari means “black male” (karo) and “black female” (kari), metaphoric terms for someone who has dishonored the family or is an adulterer or adulteress.) Once a woman is labelled as a kari, male family members have the self-authorized justification to kill her and any co-accused karo to restore family honor. In many cases the karo is not killed or is able to flee.

Human rights groups criticized the law banning karo-kari because it allows the victim or the victim’s heirs to negotiate physical or monetary restitution with the perpetrator in exchange for dropping charges.

Police in Sindh established karo-kari cells with a toll-free telephone number in the districts of Sukkur, Ghotki, Khairpur, and NausharoFeroze for persons to report karo-kari incidents. Because honor crimes generally occurred within families, many went unreported. However, police and NGOs reported that increased media coverage enabled law enforcement to take some action against a limited number of perpetrators.

The practice of cutting off a woman’s nose or ears, especially in relation to honor crimes, was reported. For example, on June 20, Muhammad Riaz cut off his 22-year-old wife’s nose before turning himself over to police in Haripur, KP. He accused his wife of having an affair.”

The United Kingdom Border Agency Country of Origin Information Report on Pakistan of 7 June 2012 reported that:

“24.110 The IRB [Immigration and Refugee Board] of Canada in a Response to Information Request [RIR] entitled Pakistan: Honour killings targeting men and women, especially in the northern areas (2001 - 2006), dated 24 January 2007, provided a brief description of the custom and to whom it applied:

‘There is an extensive amount of information on honour killings in Pakistan primarily focusing on female victims. Honour killings are described as a custom in which mostly women and some men are murdered after accusations of sexual infidelity. The killers seek to avenge the shame that victims are accused of bringing to their families. However, even girls and, on a smaller scale, boys are victims of the practice. Honour killings are known by different names depending on the area in Pakistan in which they are practised. In Sindh province they are referred to as karokari, where karo refers to the ‘blackened’ or dishonoured man and kali [kari] to the ‘blackened’ woman; they are called tor tora in the North-West Frontier Province (NWFP), where tor refers to the accused man and tora to the accused woman; kala kali in Punjab province, where kala refers to the accused man and kali refers to the accused woman; and sinyahkari in Balochistan.’

24.111 The same source also provided detail about the motivations and justifications for honour killings, and states that such killings:

‘...are often carried out by men who believe their honour has been breached by the sexual misconduct of female family members, even when it is only an allegation. The tribal justice system, for example, makes it incumbent upon husbands and male relatives to restore family honour damaged by allegations of a woman’s sexual misdeed, usually by killing the woman and her alleged lover. The NCSW [National Commission on the Status of Women] indicates that it is not just honour killings but all forms of domestic violence that are ‘frequently intended to punish a woman for a perceived insubordination supposedly impacting on male honour’. The media in Pakistan reports stories indicating that the male companion of the accused female will also be killed in the name of protecting family honour, or for marrying a woman from another tribal group without the consent of her parents, to restore the honour of her tribe.’

24.112 The Aurat Foundation provided a glossary of terms in its Annual Report January-December 2010, Violence Against Women in Pakistan: A qualitative review of statistics 2010 (Aurat Foundation Annual Report 2010), published June 2010. The report described an honour killing as:

‘A customary practice where male family members kill female relatives in the name of family ‘honour’ for sexual activity outside marriage, either suspected or forced, even when they have been victims of rape. Often young teenage boys are chosen to perform the crime because their sentences are generally lighter than those for adults. The practice is deeply rooted in patriarchal/tribal traditions where males are looked upon by society as the sole protectors of females; and because of this duty conferred on the man, he has complete control over the female. In case the man’s protection is violated through the perceived immoral behaviour of the woman, the man loses his honour in society, as it is interpreted, as a failure either to protect the woman adequately or to educate her properly.’

24.113 The IRB RIR summarised the motives for honour killings:

• maintain family assets;

• acquire another family’s assets;

• prevent women from freely choosing their husband;

• punish women for seeking divorce, having been raped or having disobeyed

family wishes;

• seek revenge on an opponent; and

• disguise the murder of another man.

24.114 The IRB continued:

‘Honour killings are reportedly most prevalent in rural areas of Pakistan. In 2004, more than half of all reported honour killings occurred in southern Sindh province, but the practice was also believed to be widespread in Punjab, Balochistan, NWFP and the FATA. However, the HRCP noted an increase in these types of murders in urban areas such as Lahore in 2005. Pakistan’s National Commission on the Status of Women (NCSW) similarly indicates that honour killings take place in urban areas and that some of these cases are committed by the urban elite.’

24.115 The HRCP Report 2011 noted:

‘Throughout the year, women were callously killed in the name of ‘honour’ when they went against family wishes in any way, or even on the basis of suspicion that they did so. Women were sometimes killed in the name of ‘honour’ over property disputes and inheritance rights. According to media monitoring and field reports from HRCP volunteers, at least 943 women were killed in the name of honour, of which 93 were minors. The purported reasons given for this were illicit relations in 595 cases and the demand to marry of their own choice in 219 cases. The murderers were mostly brothers and husbands, in 180 cases the murderer being a brother and in 226 cases being the husband of the victim. The majority of cases (557) were of married women. Before being killed, at least 19 women were raped, 12 of them gang raped, and the means used were mostly firearms but also blunt weapons and strangulation. Among the honour killing victims were seven Christian and two Hindu women.’

24.116 Between January and December 2011, 705 women were recorded as being killed in so called “honour” killings and 1,575 were documented as murdered. There were a total of 8,539 recorded cases of violence against women in 2011. (Aurat Foundation, Incidents of Violence Against Women, 2011)

24.117 The Free and Fair Election Network (FAFEN), a network of 42 civil society organisations working to foster democratic accountabilities in Pakistan, stated in a press release, published 27 April 2012, based its report on the monitoring of the offices of 78 District Police Officers [DPOs] across Punjab, Sindh, Balochistan and Islamabad Capital Territory, in February 2012, that:

‘Cases of honour killings were more widespread in February 2012 as compared to the preceding month – 24 cases being reported in 16 districts against 19 recorded in 12 districts in January ... A total of 793 cases were registered for crimes against women, the report said. Most frequent and widely reported on these were FIRs [First Information Reports] for forced marriage. These constituted 40% of the total cases. Twenty four percent of the cases were those of attack on modesty, rape (19%), offences relating to marriage (14%), honour killings (3%), and word, gesture or act intended to insult the modesty of a woman (1%).’

24.118 Regarding the recording of honour killings, the Aurat Foundation noted in its 2009 annual report on violence against women, published June 2010, that:

“... it can be safely assumed that all such cases are not reported since perpetrators are mostly family members immediate and extended like a husband, a brother or a cousin. In some cases, women are killed by their spouses suspecting extra-marital relations while in others, they are killed for having chosen their husband rather than accepting the one their family chose for them. Often, ‘honor’ can also be an excuse for a cold-blooded murder. The greatest number of ‘honor’ killings is committed in the ‘karo-kari’ or ‘kalakali’ tradition. Karo or kala (black man) and kari or kali (black woman) are terms for adulterer and adulteress. A man is entitled to kill his wife and her alleged lover if he declares her ‘kari’ or ‘kali’.”

24.119 The HRCP Report 2008 stated that:

‘Killing[s] in the name of honour were witnessed across the country involving both men and women. A majority of victims however were women as men were usually exiled or forgiven or made to pay compensation in cash or in the form of hand of a female relative in marriage. In most cases women were killed on mere suspicion of having illicit relations or displaying an independent spirit that threatened the patriarchal way of life in their areas. According to an NGO, 17 women alone were killed on the pretext of Karokari in Sindh in the first two months of the year.’

24.120 In its report, The State of Pakistan’s Children 2008 (SPARC Report 2008), the Society for the Protection of the Rights of the Child (SPARC) noted that:

‘The selective use of religion and patriarchy, which interplay in the institution of the family, and the endorsement of it by the parallel judiciary systems [jirgas] provide a license to men to inflict violence and murder on their spouses/sisters/daughters in the name of honour, not only on the grounds of ‘illicit relations’ but for multiple reasons such as seeking divorce, rape, fake honour killings and to safeguard family property etc... The tribal system of retribution, and the formal legal system, both subject women and girl child to cruel treatment and judgements are passed which are highly unfavourable to women. As state institutions the law enforcement apparatus and the judiciary have dealt with such crimes against women with extraordinary leniency, and as the law provides many loopholes for murderers in the name of honour to get away, the tradition of honour killings continue unabated.’

24.121 The Freedom House Freedom in the World: Pakistan 2011 report observed that “Activists have cast doubt on the authorities’ willingness to enforce a 2005 law that introduced stiffer sentences and the possibility of the death penalty for honor killings.” Commenting on its revised laws for honour killings, the UN Committee on the Rights of the Child report, dated 19 March 2009, that the low level implementation of laws was a problem, which was “Mostly... due to lack of adequate training to appropriately deal with the situation and apply the relevant provisions of the law.”

24.122 The USSD Report 2010 also noted the 2005 law that established penalties for honour killings. However, the report noted that ‘... human rights groups criticized the act because it allows the victim or the victim’s heirs to negotiate physical or monetary restitution with the perpetrator in exchange for dropping charges, known as ‘qisas’ and ‘diyat.’... Because honor crimes generally occurred within families, many went unreported. However, police and NGOs reported that increased media coverage enabled law enforcement to take action against perpetrators.’

24.123 Human Rights Watch noted in their submission to the Human Rights Council, on 5 May 2008, that “According to Pakistan’s Interior Ministry, there have been more than 4,100 ‘honor killings’ since 2001” and also noted that “provisions of the Qisas and Diyat law which allow the next of kin to ‘forgive’ the murderer in exchange for monetary compensation remain in force, and continue to be used by offenders to escape punishment in cases of so-called honor killings. Such laws which in effect allow men to pay to kill women act as no deterrent to those who would engage in so-called honor killings.”

5.  Evidence in respect of women’s shelters in Pakistan

The 2008 Annual Report of the Human Rights Commission of Pakistan stated that:

“Shelter facilities for women remained sparse and inadequate in 2008. The government DarulAman shelters retained their notoriety for being similar to detention centres with curfews, ill treatment and absence of a gender-sensitive environment.

In February, nine women residents of the Rawalpindi DarulAman dug a hole in a wall to escape from the shelter. The courts had sent the nine women to the shelter for refuge while they fought cases of domestic violence and sought divorce out of forced marriages.

Numerous reports were also made of sex trade rackets where, in one case, officers of the Lahore DarulAman were accused of forcing helpless girls to have sex with some men and warning against talking about it. A sessions court took up the case and an enquiry was ordered.

Private shelters continued to run and provide refuge as well as rehabilitation services allowed by their resources and outreach. Nevertheless, the facilities were small-scaled, few and far between, and relatively unknown to the masses which brought out the need to maximum government input and action. The women’s shelters set up by the women’s ministry were not enough in number and also many were not completely functional.”

The USSD Report 2011 reported that:

“The government operated the Crisis Center for Women in Distress, which referred abused women to NGOs for assistance. A total of 26 government-funded Shaheed Benazir Bhutto centers for women across the country provided women with temporary shelter, legal aid, medical treatment, and psychosocial counselling. These centers served women who were victims of exploitation and violence. Victims were later referred to "darulaman" (approximately 200 centers for women and child victims established with funds from the Provincial Women Development Department). These centers provided shelter, access to medical treatment, limited legal representation, and some vocational training. Many government centers were full beyond capacity and lacked sufficient staff and resources. In some cases women were abused at the government-run shelters, found their movements severely restricted, or were pressured to return to their abusers.”

6.  Evidence in respect of internal relocation for single women in Pakistan

The IRB of Canada in a Response to Information Request, dated 4 December 2007, recorded that:

“It is very hard for single women to live alone both in urban and rural areas. .... It depends on age, class, education, and urban or rural setting. Young unmarried/divorced women in all classes in urban areas find it difficult to live alone. They cannot get apartments to be rented. If they own a property, they can more conveniently opt to live alone but again there is a social pressure around them and they have to face all kinds of gossip and scandals. In such cases, age is the biggest problem. Older women can live alone but still they feel insecure socially and physically. We do have examples now in the big cities where highly educated and economically independent women opt to live alone but their percentage is very low. In the rural areas they mostly live with joint family even if they do not get along with them...”

It further recorded that:

“The response to your question depends on the circumstances, location, socio-economic, educational and professional status of the single female. Generally, it would be accurate to say that single women are rarely able to live on their own without a male member of the family in Pakistan. Reasons for this are numerous but they primarily stem from custom and culture that requires a woman to have a male family member to be in a protective and supervisory role. Society also frowns upon women living on their own and [this] would not help the reputation of the single woman. You may find one in a million single women who has the means and can live in a big city with helpers, etc. to assist and protect her. This of course is a minority and an exception rather than the rule.”

COMPLAINTS

The applicants complain under Articles 2 and 3 of the Convention that the first applicant would face a real risk of the death penalty, honour killing and/or domestic violence if returned to Pakistan.

In that regard, they complain that the domestic courts, and in particular the Upper Tribunal, failed to show sufficient rigour in assessing the foreseeable consequences of the applicants’ return to Pakistan and the real risk to them as required under Article 3 of the Convention (NA. v. the United Kingdom, no. 25904/07, § 111, 17 July 2008). In particular, they complain that the Upper Tribunal failed to adequately engage with reputable evidence in relation to the risk of honour killing throughout Pakistan and wrongly relied upon the evidence of Dr Shah (whose evidence in that regard had not been relied upon by the Secretary of State) which had contradicted the other available evidence.

They also complain that the Upper Tribunal’s conclusions that the applicants could internally relocate to a women’s refuge in another area of Pakistan to avoid ill-treatment in Lahore were unsustainable and failed to engage with the available evidence. Those conclusions failed to take into account the existence of the criminal charges against the first applicant and the fact that she had been previously refused admission to a women’s refuge because of those criminal charges. Furthermore, those conclusions represented a gendered and unacceptable approach to internal relocation bearing in mind the extremely poor conditions, lack of safety and restrictions of liberty in women’s refuges. They also claim that the evidence demonstrated the very serious obstacles to a woman with the applicant’s background with dependent children without male protection obtaining employment or accommodation outside a refuge and unacceptable difficulties to the applicants in trying to conceal their identities.

The applicants also complain under Article 8 that their proposed expulsion to Pakistan would give rise to a flagrant breach of their rights to private life because the treatment facing the applicants would completely nullify the very essence of those rights.

Finally, they complain under Article 13 that, by reason of the absence of independent and rigorous scrutiny by the domestic courts, they were not afforded an effective remedy in respect of their Article 3 claim.




 

QUESTIONS

 

1.  Would the applicants’ removal to Pakistan violate Article 2 and/or Article 3 of the Convention?

 

(i) The parties are requested to comment upon the relevance, if any, of the existence of an internal flight alternative in determining whether removal of an applicant would amount to a violation of Article 2 and/or 3 of the Convention when the alleged ill-treatment stems from private actors but is implicitly condoned by the receiving State (see SalahSheekh v. the Netherlands, no. 1948/04, § 141, ECHR 2007-I (extracts), Chahal v. the United Kingdom, 15 November 1996, § 98, Reports of Judgments and Decisions 1996-V and Hilal v. the United Kingdom, no. 45276/99, §§ 67–68, ECHR 2001-II).

 

(ii) The parties are further requested to comment on the relevance of the following matters in the present case:

 

(a)   the first applicant’s employment history and education;

 

(b)  the outstanding criminal charges against the first applicant;

 

(c)   any support which may be provided to the applicants by the applicants’ extended family, including the availability or otherwise of male support;

 

(d)  the availability of any other support for someone in the applicants’ position in Pakistan;

 

(e)   the availability and conditions of women’s shelters in Pakistan; and

 

(f)    the background evidence regarding the difficulties facing women living alone without male support in Pakistan.

 

(iii) Finally, the parties are requested to comment on the relevance, if any, of the evidence of Dr Shah in the Upper Tribunal’s assessment of the risk of honour killing to the first applicant and the prevalence of honour killings throughout Pakistan, having regard to the fact that this evidence was withdrawn by the Secretary of State on appeal.

 




    Would the applicants’ removal to Pakistan amount to a flagrant breach of their right to private and/or family life under Article 8 of the Convention (see, for example, EM (Lebanon) (FC) v. Secretary of State for the Home Department (Respondent) UKHL 64 (2008))?