“ Delays in justice in civil and criminal cases arose due to antiquated procedural rules, weak case management systems, costly litigation to keep a case moving in the system, and weak legal education. These problems undermined the right to effective remedy and the right to a fair and public hearing. … Lower courts remained corrupt, inefficient, and subject to pressure from prominent wealthy, religious, and political figures. The politicized nature of judicial promotions increased the government's control over the court system. Unfilled judgeships and inefficient court procedures resulted in severe backlogs at both trial and appellate levels.”
“On17 February 2009 , the Aurat Foundation released its 2008 annual report on the ‘Situation of Violence Against Women in Pakistan’. The report covered the period January to December 2008 and recorded a total of 7,733 cases of violence against women reported in the print media. Of those cases, 5,686 were registered with the police. [57b]”
“The Freedom House Freedom in the World 2009 Country Report on Pakistan observed that: “A combination of traditional norms, discriminatory laws, and weak enforcement contributes to a high incidence of rape, domestic abuse, acid attacks, and other forms of violence against women; according to the HRCP, up to 80 percent of women are victims of such abuse during their lifetimes. Female victims of rape and other sexual crimes are often pressured by police not to file charges, and they are sometimes urged by their families to commit suicide. Gang rapes sanctioned by village councils as a form of punishment for crimes committed by the targeted woman’s relatives continue to be reported, despite the fact that harsh sentences have been handed down against the perpetrators in some cases.“ [19a]”
“Shelters for women are grossly inadequate taking into account the number of cases against women reported ever year. Police station personnel are not trained properly to deal with cases reported by women and do not take their complaints seriously. Women’s stations are few and far between and many people do not know their locations. The government has set up a few women’s shelters in the main cities, all the while promising more shelters every year to reach the target that they propose. Unfortunately, the existing centres are under-staffed and ill-equipped to handle most cases, and are often unable to house women in the building due to lack of space or facilities. Some centres lie out of use. Promises of free medical and legal aid as well as psychological counselling are hardly ever followed through due to lack of funds and trained personnel. It is reported that only 17 out of 25 government women crisis centres are operational. Women have to either depend on the Darul Aman, which has a reputation for treating its occupants as inmates and with reports often surfacing about abuse and drug rackets. The other options are private and NGO shelters which are extremely few and unable to cater on a large scale. There is also very little awareness about their government created facilities for distressed women. The Gender Crime Cell at the National Police Bureau in Islamabad is little known to [the] public and is extremely constrained by lack of human resources. Details of complaints and reports it had received and disposed are not made public either (NGO Statement: Pakistan presented at the 38th Session of CEDAW Committee, United Nations, May 21, 2007).”
“In a Response to Information Request dated4 December 2007 , regarding the circumstances under which single women could live alone in Pakistan the Immigration and Refugee Board of Canada (IRB) noted, following correspondence with an adjunct professor of gender studies and international studies at the University of Denver, 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 social pressure around them and they have to face all kinds of gossips and scandals. In such case 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 …’”
“3.8 Women victims of domestic violence Some female applicants will apply for asylum or make a human rights claim based on the grounds that they are the victims of domestic violence and are unable to seek protection from the authorities.”
“As noted above, case law has confirmed that Pakistani women are members of a particular social group within the terms of the 1951 Refugee Convention. Asylum claims from Pakistani women who have demonstrated that they face a serious risk of domestic violence which will amount to persecution or torture or inhuman or degrading treatment must be considered in the context of the individual circumstances of each claim. In individual cases, sufficiency of protection by the state authorities may not be available, and although internal relocation may be possible in some circumstances, where it is not a grant of asylum may be appropriate.”
“[v]ery careful consideration must be given to whether internal relocation would be an effective way to avoid a real risk of ill-treatment/persecution at the hands of, tolerated by, or with the connivance of, state agents. If an applicant who faces a real risk of ill-treatment/persecution in their home area would be able to relocate to a part of Pakistan where they would not be at real risk, whether from state or non-state actors, and it would not be unduly harsh to expect them to do so, then asylum or humanitarian protection should be refused.”
“[this] can be seen at all levels, from legislation through to over-subscribed women’s shelters which are limited in number and in resources, and crucially, to the lack of rehabilitation or aftercare. There is no system of state care or re-housing for women made homeless following violence; this fact alone plays a major role in the decisions many women make to return to violent relationships, exacerbated by their weak socio-economic position, lack of education and financial dependence. Additionally, the attitudes towards women who attempt to live without a male relative that pervades society in Pakistan results in their isolation and ostracism, exposing women to further risk of harm.”
“The majority of shelters are grossly under resourced and offer very poor or no childcare provision. Policies within shelters which exclude boys over the age of five create severe dilemmas for women, and provide disincentives to access shelters. They are usually overcrowded, provide sub-standard facilities, rarely have a key worker system, offer poor working conditions, no casework supervision, and no training or worker accountability. The workers often appear to run shelters with very little input from trustees. Life after living in a shelter often means returning to a violent situation, remarriage or returning to the natal family if they are willing or able to allow her access. In the absence of these ‘options’, women are often open to sexual exploitation to support the children and to avoid destitution.”
“…This study has demonstrated the limited and temporary circumstances in which women reach a ‘place’ which can be deemed ‘safe’. The specific conditions relevant to women in both Pakistan and the UK (where they may face involuntary return) place most women in circumstances which, rather than offer safety, heighten potential danger.”
“Crisis centres play a crucial role in assessing a woman’s needs and the risk she faces. A woman is never turned away without a full assessment of her case…Lawyers, advice workers and counsellors are available to offer immediate support to women at the centres”
“Generally, privately funded shelters or those with religious affiliations provided better facilities. … Pannah, funded by multiple donors, has excellent living conditions and offers more services to the women than other shelters. …Although there were some commonalities between all the different types of shelters, the quality of provision varied considerably. The residents of some shelters complained about the poor diet they were given, overcrowded rooms and general poor living conditions, not having access to medical treatment, lawyers not appearing at court hearings and restrictions on their mobility. …”
“In an acknowledged context of shortfall in provision, the NGO sector and privately-run shelters try to provide a safe home for women in a country that offers little protection to them. Shelters were visited in two of the three regions covered by this report. In these shelters, the majority of women were from rural areas. One key difference between NGO shelters and Darul Amans is that the latter install metal fencing within their buildings to restrict women’s mobility…The government shelters are still largely regarded as, and referred to as, “sub-jails”
“[m]ost of them are therefore either forced to return to violent relationships or remarry…”
“…if adequate provision is made available it is clearly not impossible for a woman to live on her own, although as indicated earlier she will be very visible, under suspicion as a ‘lone’ woman, and vulnerable to harassment and exploitation. If a woman’s basic needs are met (for example, accommodation, financial assistance and protection) then a woman can survive.”
“All participants (apart from the Home Office) stated that it would be difficult, if not impossible, for a lone woman, with or without minor children, to live safely and independently in Pakistan. Whilst the situation of the woman might vary from case to case, the experience of legal practitioners handling the relevant evidence supported these doubts about the viability of internal relocation. Apart from the difficulty of obtaining work and accommodation in her attempts to settle into a new community, participants concluded that a lone woman would be regarded with considerable suspicion. The dangers associated with the inter-connectedness of communities, and the complicity of the police in the way in which they service individuals within communities, have been highlighted above and heighten the ensuing dangers of internal relocation.”
“Whilst the distribution and quality of provision in Pakistan is in many respects inferior to that of the UK, it is important to note features of practice that are, in fact, better than the UK. Some shelters in Pakistan, for example, offer immediate access to lawyers, counsellors and psychologists. This is generally not available in the UK…One other crucial difference…is that [shelters in Pakistan] never turn a woman away, whereas in the UK shelters do have the option of turning women away.”
“a. There is no evidence that the Appellant has been charged with a criminal offence, there is only an FIR registering a case against her; b. The Appellant cannot be arrested and imprisoned on her return to Pakistan on the basis of the allegations set out in the FIR, as she is entitled to bail as of right and the police would have to apply to the court for a warrant for her arrest. There is therefore no risk of pre-trial detention on the basis of the allegation of adultery made by her husband; c. There is no evidence to suggest the Appellant will not have received a fair trial if she is charged and the case is pursued against her; d. If convicted the Appellant is not at risk of the death penalty; and e. The effect of recent changes to Pakistani law have had a significant effect on the position of women subject to allegations of adultery, demonstrating a liberalisation in approach and changes in social and cultural norms.”
“25. Where evaluation of issues of prosecution versus persecution must be made, it is vital decision-makers avoid a fragmented approach. Particular care must be taken to focus on the criminal justice process involved as a whole. Which ever parts of the criminal law process are being examined - be it the initial laying of information, the bringing of charges, the arrest, the detention, the consideration of bail, the trial itself, the subsequent punishment - the refugee decision-maker must be alert to how these stages interact and what safeguards apply at each stage. Also relevant will be the nature of the law in question and whether its provisions adequately ensure justice. Only a holistic approach to this issue can ensure the decision-maker weighs any harms involved cumulatively, not just separately. ..”
“1. Although it is not the purpose of refugee law to adjudge guilt or innocence under the national law of the country of origin, the type of examination a refugee decision-maker must conduct when considering the issue of prosecution versus persecution is no less evaluative than it is in respect of any other issue. Incomplete or sketchy evidence is not a valid reason for failing to decide whether a claimant faces justice or injustice. 2. Whether a prosecution amounts to persecution is a question of fact. All the relevant circumstances have to be considered on a case-by-case basis. 3. Particular care must be taken to focus on the criminal justice process as a whole. Only a holistic approach to this issue can ensure the decision-maker weighs any harms cumulatively and not just separately. 4. Whether prosecution amounts to persecution must be analysed by reference to international human rights norms. The utility behind doing so is that international human rights instruments contain specific guarantees relating to the criminal justice process and that these are increasingly used in major general country reports to assess the performance of a State`s criminal justice system. 5. In line with the human rights approach to the definition of persecution (and protection) approved in Horvath and its basis in a notion of a hierarchy of human rights, account must be taken of the fact that the right to a fair trial is not an absolute, non-derogable right. Just as under international human rights law examining the issue of fair trial in the context of return or refoulement there is no violation unless the risk faced is that of a flagrant denial of a fair trial, so too under the Refugee Convention prosecution does not amount to persecution unless likely failures in the fair trial process go beyond shortcomings and pose a threat to the very existence of the right to a fair trial. 6. When considering whether the generality of citizens face a real risk of persecution under the criminal justice system of their country of origin, it is important to establish the scale of any violations of relevant human rights such as the right not to be exposed to ill treatment during detention or the right to a fair trial. A useful benchmark is that set out inArticle 3 of the Convention Against Torture, namely whether the level of abuse of human rights rises to the level of a "consistent pattern of gross, flagrant or mass violations of human rights". 7. Applying these principles to this case, the adjudicator had sufficient evidence before him to establish: (i) that the police would no longer have any reason to target the appellant; (ii) however, the charges facing the appellant might proceed, even though false; (iii) but the Pakistani courts would recognise they were false and would exonerate him at least by the time of the trial; (iv) that he might nevertheless first undergo a period of pre-trial detention; (v) although this would mean he experienced hardships, these would not rise to the level of serious harm so as to make his a case of persecution rather than prosecution; (vi) even on the assumption that he might still face a real risk of serious harm from the relatives of the man killed at the demonstration (against which the authorities could not protect him), he would be able to avail himself of an internal flight (protection) alternative.”
"While the court has not to date found that the expulsion or extradition of an individual violated, or would if carried out violate,article 6 of the Convention , it has on frequent occasions held that such a possibility cannot be excluded where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country. What constitutes a 'flagrant' denial of justice has not been fully explained in the court's jurisprudence but the use of the adjective is clearly intended to impose a stringent test of unfairness going beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of article 6 if occurring within the Contracting State itself. As the court has emphasised, article 1 cannot be read as justifying a general principle to the effect that a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. In our view, what the word 'flagrant' is intended to convey is a breach of the principles of fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article."
"General principles 115.Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. 116. In the modern world States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Labita v. Italy [GC], no. 26772/95, BAILII:[2000] ECHR 161 , § 119, ECHR 2000-IV; Selmouni v. France [GC], no. 25803/94, BAILII:[1999] ECHR 66 , § 95, ECHR 1999 V; and Assenov and Others v. Bulgaria, BAILII:[1998] ECHR 98 , judgment of28 October 1998 , Reports 1998-VIII, p. 3288, § 93). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal v. the United Kingdom, BAILII:[1996] ECHR 54 , judgment cited above, § 79). The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (Indelicato v. Italy, no. 31143/96, BAILII:[2001] ECHR 599 , § 30,18 October 2001 ). 117. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for instance, Ireland v. the United Kingdom, BAILII: [1978] ECHR 1,18 January 1978 , Series A no. 25, p. 65, § 162). … 118. The Court has considered treatment to be "inhuman" because, interalia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be "degrading" because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Kudla v. Poland [GC], no. 30210/96, 10 BHRC 269, § 92, ECHR 2000-XI). In considering whether a punishment or treatment is "degrading" within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, among other authorities, Raninen v. Finland, BAILII:[1997] ECHR 102 , judgment of16 December 1997 , Reports 1997-VIII, pp. 2821-2822, § 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, Peers v. Greece, BAILII:[2001] ECHR 296 , no. 28524/95, § 74, ECHR 2001-III). 119. In order for a punishment or treatment associated with it to be "inhuman" or "degrading", the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, BAILII:[1999] ECHR 171 , § 71, ECHR 1999-IX; Indelicato, cited above, § 32; Ilascu and Others v. Moldova and Russia [GC], no. 48787/99, BAILII:[2004] ECHR 318 , § 428, § 428, ECHR 2004-VII; and Lorsé and Others v. the Netherlands, no. 52750/99, BAILII:[2003] ECHR 59 , § 62,4 February 2003 ). In that connection, the Court notes that measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudla v. Poland,(2000) 10 BHRC 269 , cited above, § 94; and Kalashnikov v. Russia no. 47095/99, BAILII:[2002] ECHR 596 , § 95, ECHR 2001-XI). The Court would add that the measures taken must also be necessary to attain the legitimate aim pursued. Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (Dougoz v. Greece, no. 40907/98, BAILII:[2001] ECHR 213 , § 46, ECHR 2001-II)."
“The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.”
“(i) The Secretary of State will not make: (a) a grant of asylum if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country; or (b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country. (ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making his decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person. (iii) (i) applies notwithstanding technical obstacles to return to the country of origin or country of return.”
“Amendment of section 497, Act V of 1898. – In the Code of Criminal Procedure, 1898 (V of 1898), in section 497, in sub-section (1), in the first proviso, the words “or any woman” shall be omitted and after the first proviso amended as aforesaid, the following new provisos shall be inserted; namely:- “Provided further that a woman accused of such an offence shall be released on bail, as if the offence is bailable, notwithstanding anything contained in schedule-II to this Code or any other law for the time being in force: “Provided further that a woman may not be so released if there appear reasonable grounds for believing that she has been guilty of an offence relating to terrorism, financial corruption and murder and such offence is punishable with death or imprisonment for life or imprisonment for ten years, unless having regard to the facts and circumstances of the case, the court directs that she may be released on bail: Provided further that where a woman accused of an offence is refused bail under the foregoing proviso, she shall be released on bail if she has been detained for a continuous period of six months and whose trial for such offence has not been concluded, unless the court is of the opinion that delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on her behalf.”
“48. The same CIPU Country Report accepts that internal flight options are limited for women, but it does not state that there are no internal flight possibilities and each case will depend on its own particular factual matrix. We find that some support is available in the cities, and we also consider the geographical scale of Pakistan (covering an area of about 307,374 square miles, with a population of 140,470,000); the question of internal flight will require careful consideration in each case. The general questions which Adjudicators should ask themselves in cases of this kind are as follows – (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 …having regard to the available state support, shelters, crisis centres, and family members or friends in other parts of Pakistan?”
“(2) The background evidence on the position of women at risk of domestic violence in Pakistan, and the availability to them of State protection remains as set out in SN and HM. … It appears that the current intention of the authorities is to improve the State protection for such women, although progress is slow. Every case will still turn on its particular facts and should be analysed according to the step by step approach set out at para 48 of SN and HM, with particular regard to the support on which the appellant can call if she is returned.”
“31. We were referred to a number of documents in particular a Home Office operational guidance note and a US State Department report relating to Pakistan, both of which documents were very recent in relation to the date of the original hearing before Immigration Judge Walters. Miss Chan, for the Secretary of State, submits that, on careful reading, these documents take matters no further. She also observes that there is no country guidance dealing with the general question of single women with children being returned to Pakistan. It is true that there is no country guidance. Perhaps it would be helpful if there was a country guidance case dealing with issues that arise in such circumstances.”
“If the woman is accepted by the shelter then the worker will immediately inform the family that she is with them. This is done to prevent husbands or families from registering false cases against women or the NGOs which can lead to workers in NGOs being arrested…If the family wishes to visit or contact the women they are told to make arrangements through the office and a meeting will be arranged with the consent of the woman.”
“The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there.” (Emphasis added)
“[S]he had only been allowed to leave the police station because the charges against her were still under investigation and the police had to finalise the registration of a FIR against her under Hudood Law. However, the police, on the basis of her husband’s complaint, had then decided to register the case of adultery under Hudood Law and had decided to charge her on31 July 2006 .”