NUSRAT SHAHEEN v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2002] EWCA Civ 1290

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

[2002] EWCA Civ 1290

Case No C/02/1470

Venue Royal Courts of Justice, Strand, London WC2A 2LL, Thursday 29 August 2002

Between

NUSRAT SHAHEENClaimant/Applicant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant/Respondent

Before

Lord Justice Brooke

Lord Justice Tuckey

MISS M PLIMMER (Instructed by Messrs Henry Hyams, Leeds, LS1 5QX) appeared on behalf of the Applicant.

The Respondent did not attend and was not represented.

Date 29 August 2002

LORD JUSTICE BROOKE:

This

[1]is a renewed application by Nusrat Shaheen for permission to appeal against an order of the Immigration Appeal Tribunal made on 20 February 2002 whereby it allowed an appeal by the Secretary of State from the determination of an adjudicator made on 24 January 2001. The adjudicator had allowed an appeal by the present appellant against directions given on 11 August 2000 for her removal from the United Kingdom as an illegal entrant. She had applied for, but had been refused, asylum.

[2]The history is complicated. The appellant is a single woman, born in Pakistan in 1975. Her parents and three brothers have lived in England since 1994 and have been granted extended leave to remain here. She arrived with her sister in this country on 29 January 2000 accompanied by a man she believed to have been an agent. This man provided them with false passports which enabled them to pass through immigration control unchecked. She applied for asylum five days later.

[3]The original statement in support of her application, which she signed, contained a number of vivid details about the way she had been treated in Pakistan, which she told the adjudicator were quite untrue. For the purposes of the proceedings before the adjudicator, she gave an account of events which was largely adopted by tribunal as the foundation of its rulings on the applicable law. In paragraphs 11 to 14 of its decision the tribunal said:

"11. ....The Respondent and her sister, upon the departure of her parents from Pakistan, had been left in the care of her grandmother and uncle. The grandmother was a kind and considerate, sweet old lady .... Everything was fine until December 1999 when the uncle decided to arrange the marriage of the Respondent to a man twice her age. Through local gossip the Respondent and her grandmother understood that he was a bad character, a drug addict and an alcoholic but that her uncle would have made some financial gain as a result of the arrangement. 12. The arrangement was made without consultation with the Respondent, her parents or grandmother and the Respondent says that she was prevented from going to college or communicating with anyone within her own household, that is to say with her uncle's children or his wife. The uncle told her that if she did not enter into the proposed marriage he would accuse her of committing 'zina' (adultery) which carries the punishment of public floggings or death by stoning in accordance with the Hadood Ordinance. He claimed, she maintained, that he had said that it would not be difficult for him to find four witnesses necessary to substantiate such an accusation as required by Sharia laws. 13. The grandmother took the Respondent and her sister to a friend of her father who she knows as uncle Malik. Her father in the United Kingdom was informed and he was especially angry and said that the Respondent and her sister were to stay at uncle Malik's house where uncle Malik received instructions from the Respondent's father. 14. On 23rd January 2000 the grandmother died and on 29th January uncle Malik informed the Respondent and her sister that they were going to the United Kingdom to join their parents. They were taken to Lahore airport, introduced to a man who told them to follow him, had their passports and tickets and remained with them until they had passed through immigration control in the United Kingdom."

[4]The adjudicator held that the underlying principle in this case was identical with that established by the House of Lords in Shah v Islam

[1999] 2 AC 629

. There was the same distinctive feature of Pakistani women being uprooted by the State, with the same fear of accusations which arose in Shah v Islam and in the present case. He therefore held that the appellant fell within the words "particular social group". He considered that the appellant had a well-founded fear of persecution by her uncle for a Convention reason and that the State was not able to provide sufficiency of protection. He noted from the papers that the police in Pakistan were not at all willing to offer protection. He said it was alarming that there were so many "honour" killings of women in Pakistan.

[5]The tribunal considered that the real issue in this case was not whether Miss Shaheen could show that within Pakistan she was a member of a social group within the meaning of the Convention, but rather what would flow from that, and whether the adjudicator could have found that, upon the totality of the evidence, there was a likelihood that if she was returned to Pakistan she would suffer persecution by reason of her membership of that group.

[6]The tribunal reminded itself that, at most, there had been the threat of an arrangement for marriage made by her uncle alone, acting without the knowledge (and certainly without the consent) of her father, grandmother or any other member of the family. The tribunal also reminded itself that the Koranic punishment which she claimed to have feared required a high standard of evidence. Four adult male Muslims of good character, on pain of punishment for the offence of making a false accusation of zina, would have to say that they had witnessed the act of which the complaint was made.

[7]The tribunal noted that the uncle's rule had not been allowed to prevail and that Miss Shaheen's father had been able, even from his country, to call on a friend of his to take appropriate action to bring his two daughters to England. Although they were mindful of discrimination against women in Pakistan, they did not accept that the adjudicator was entitled on the evidence before him to assume that the actions of one man, albeit an uncle, opposed by the father and without any support from the family, could successfully have supported a threat involving such dishonesty. They noted from the chronology that a full year had elapsed between the raising of the arrangement and Miss Shaheen's departure from the home. Marriage required consent in Pakistan. The very fact that the uncle was induced, on Miss Shaheen's story, to make threats in an effort to impose his will, indicated that he appreciated that he could not impose his will without persuading his niece to give her consent.

[8]In her admirably concise submissions to this court today, Miss Plimmer has taken three points. The first is that the tribunal was wrong in law in contending that there would be adequate protection for the appellant if it was on the cards that she could be rescued and brought to this country. On the previous occasion her father had enabled her to get international surrogate protection in this country. She submits that the tribunal ought to have directed itself as to the future whether she would be likely to have obtained such protection within in the boundaries of the State of Pakistan. In that respect she submits that the tribunal misdirected itself in law.

[9]Secondly, she argued that the tribunal misdirected itself in the way that it approached the question of future risk. The adjudicator had taken very seriously the risk of honour killing (about which he had read in the papers before him) which the tribunal did not address in its determination. The applicant had refused consent to an arranged marriage against her will. Miss Plimmer said that whatever might have been the situation about an accusation of zina which the tribunal did take into account, the tribunal, when assessing future risk, ought to have considered all the possible permutations in the way that the adjudicator clearly did.

[10]Thirdly, she said that the tribunal made a material error of fact in considering the point of law in the matter. It was not a full year before the appellant was rescued. On her statement she said that the uncle made these threats in December and she was rescued by her father the following month.

[11]In my judgment, this case does raise issues which are fit for consideration by this court on a full appeal. It cannot be said there is no real prospect of success on such an appeal. I would, therefore, grant permission to appeal.

LORD JUSTICE TUCKEY: So would I.

Order

Application for permission to appeal allowed. Detailed assessment of publicly funded applicant's costs. Time estimate half a day to be heard before a 3-judge court to include one High Court with experience on asylum law but the court should not include Schiemann LJ.

Cited in 1 later judgment

G v S 2009