FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Mackay of Drumadoon Lord Bonomy	[2012] CSIH 70 XA28/11 OPINION OF THE COURT delivered by LORD EASSIE in the application for Leave to Appeal under Section 13(4) of Tribunals, Courts and Enforcement Act 2007 by KP; and MRK Applicants; against a decision of the Upper Tribunal (Immigration and Asylum Chamber) _______________

Applicants: Wolffe QC, Byrne; Drummond Miller LLP (for Peter G Farrell, Solicitors, Glasgow)

Respondent (Home Secretary): K Campbell QC; Solicitor to the Advocate General

11 September 2012

[1] The applicants in this application for leave to appeal against a decision of the Asylum and Immigration Chamber of the Upper Tribunal are citizens of Pakistan. They are mother and son. They arrived in the United Kingdom in December 2007 and sought asylum. Put briefly, the basis of the claim of the first applicant was that she had been the victim of prolonged, severe abuse and violence at the hands of her husband and her attempts to obtain assistance from the police had been unsuccessful; and that of the second applicant, who had supported his mother against his father, was that he had been seriously assaulted by his father on a number of occasions and likewise could not rely on any assistance from the police.

[2] The respondent, the Secretary of State for the Home Department, accepted that the first applicant had been the victim of prolonged physical domestic abuse at the hands of her husband and that the second applicant had been assaulted by his father. However, the applications for asylum were refused on the ground that the respondent considered that the applicants could relocate to another part of Pakistan where they would not be at risk of persecution and that for them to do so would not be unduly harsh.

[3] The applicants appealed those refusals to the First‑tier Tribunal (Immigration and Asylum Chamber). Having heard evidence, the First‑tier Tribunal allowed the applicants appeals on asylum and human rights grounds. The First‑tier Tribunal held that there was a real risk that the applicants would suffer persecution in Pakistan. It held that the risk and lack of protection extended to other areas to which the first applicant could reasonably expected to go and rejected the respondent's contention that internal relocation within Pakistan would be open to the applicants and not be unduly harsh.

[4] The respondent appealed that decision to the Upper Tribunal. The Upper Tribunal considered that there was no evidence on which the conclusion that there was a risk to the applicants throughout Pakistan could be reached and that on that account the First‑tier Tribunal had erred in law. The Upper Tribunal set aside the determination of the First‑tier Tribunal and in its place dismissed the applicants' appeals against the respondent's refusal of their claims to asylum.

[5] This application is brought for leave to appeal that decision of the Upper Tribunal. The application for leave raised the issue whether the then prevailing rule 41.59 of the Rules of the Court of Session was ultra vires. That aspect was considered by the court at an earlier stage in these proceedings and for the reasons given by the court in its Opinion [2012] CSIH 38 that rule was held to be ultra vires.

[6] As was indicated in that opinion, in light of that ruling the respondent accepts that leave to appeal should be granted. She also accepts that the appeals themselves should be granted. The basis for that concession is this. While the senior immigration judge in the Upper Tribunal concluded that the immigration judge in the First‑tier Tribunal had made an error in law in finding that the risk of persecution extended throughout Pakistan, the senior immigration judge had himself then erred in law by failing to consider whether it would be unduly harsh to expect the applicants to relocate to some other place in Pakistan in which they would be safe. We would record that the two‑fold aspect of internal relocation in asylum matters namely (a) the issue of the existence and identification in the country of persecution of an area in which the applicant would be free of persecution and (b) the issue whether it would be reasonable and not unduly harsh to expect the applicant for asylum to relocate in that area was not in dispute (cf Januzi v The Home Secretary [2006] UKHL 5; [2006] 2 AC426; AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] 1 AC 678.)

[7] We are satisfied that the concession of error on the part of the Upper Tribunal which is made by the respondent is well‑founded. We therefore grant the applicants leave to appeal and also allow the appeals. The issue which is now in dispute is the further disposal of the case following that allowance of the appeals.

[8] Put shortly, the contention of counsel for the applicants is that the senior immigration judge constituting the Upper Tribunal in this case was not only in error in the respect conceded by the respondent but was also wrong in considering that the decision of the First‑tier Tribunal was vitiated by an error of law. Since there was no error of law in the decision reached by the First‑tier Tribunal, the Upper Tribunal had no basis on which to interfere with it. The proper course was accordingly to restore the decision of the First‑tier Tribunal. The contrary contention for the respondent is to the effect that the Upper Tribunal was correct in its identification of an error of law in the decision of the First‑tier Tribunal. The case should therefore be remitted to the Upper Tribunal for consideration of the case de novo.

[9] In these circumstances the central issue for our decision is whether the senior immigration judge in the Upper Tribunal was correct in his decision that the immigration judge in the First‑tier Tribunal had committed an error in law in finding that the applicants would be at risk in Pakistan generally. The error of law is stated by the judge in the Upper Tribunal in paragraph 35 of his determination as being:

"the determination of the First‑tier Tribunal errs in law, in finding a risk to the applicant's throughout Pakistan, because there was no evidence on which that conclusion could properly be reached."

[10] Counsel for the applicants submitted that there was a clear and sufficient evidential base upon which the First‑tier Tribunal was entitled to reach the conclusion that the applicants would be at risk in Pakistan outwith the area in which the family home had been situated. The First‑tier Tribunal had before it evidence from the applicants in the form of both witness statements and their oral testimony, as well as various documentary materials on the state of affairs and the position of women in Pakistan. The evidence of the applicants was accepted by the First‑tier Tribunal as being credible and reliable. In paragraph 19ff of its determination the First‑tier Tribunal records the accounts given by the applicants of their ill‑treatment and the disinterest of the police and the lack of protection available from those authorities while living in the family home. In August 2007, with assistance from a male friend (MA), the applicants and another son of the first applicant were able to leave home and go to Islamabad where they remained until MA was able to arrange for the applicants' travel to the United Kingdom for their safety. Contrary to what the Upper Tribunal judge appears to have thought respecting the circumstances in which the applicants lived in Islamabad before they were able to leave for the UK, the conditions in which they were living were described in their witness statements; the applicants were effectively in hiding and in fear.

[11] As was set out by the applicants in their written argument, on the basis of the materials before it the First‑tier Tribunal was able to justify the making of findings (paragraphs 60 - 62 and 64) as to the position of women in Pakistani society generally and the prevailing reluctance of the police and judicial authorities to take action in cases of domestic abuse, the normal course of those authorities being to return the abused to the abusive family member. The First‑tier Tribunal was therefore able to conclude, in paragraph 63, that the first applicant faced a real risk of persecution at the hands of her husband and the prospect of her being able to obtain any protection from the authorities appeared "very slim indeed". Similar findings were made by the immigration judge in paragraphs 40 and 56 of the First‑tier Tribunal's determination. The First‑tier Tribunal also accepted the second applicant's account of violence, harm and intimidation at the hands of his father and made a finding that the risk he faced had increased by virtue of the fact that he had openly sided with his mother (c.f. paragraphs 23 and 73).

[12] Further, in light of the evidence before it, the First‑tier Tribunal was able to make findings respecting the character of the husband. Thus it found the first applicant to have been "the victim of unrelenting abuse and violence"; and her husband's behaviour to her and the family being "a reign of terror" (paragraphs 35 and 36). The First‑tier Tribunal concluded from the evidence that the husband had "shown determination to enforce his will" and was "determined and possibly unstable". There was also evidence that the first applicant's husband had reported to the police that she had run away with his children and in light of what was found, on the basis of the documentary materials, about the normal course adopted by the authorities it could properly be inferred that if the first applicant came into contact with the police or those authorities it was likely that she would be returned to her husband.

[13] Against those findings, including the findings respecting the character of the first applicant's husband, it was submitted that the First‑tier Tribunal was entitled to make the important finding in paragraph 44 that it seemed entirely possible that the first applicant's husband "would track her down and threaten her personal safety as he had done in the past".

[14] The First‑tier Tribunal had also considered the availability of shelters for women (which had been suggested by the respondent as a relocation option) and found them to be insufficient and inadequate (cf paragraph 42). The First‑tier Tribunal had also found, on the basis of materials before it, that in some cases women were abused within the shelters (cf paragraph 23). The First‑tier Tribunal had also considered whether two of the first applicant's sons could provide the necessary protection and had concluded that it was unrealistic to expect them to be able to provide protection for their mother in the longer term, particularly if tracked down by the husband.

[15] Having considered carefully the terms of the determination by the First‑tier Tribunal, we have come to the view that, despite the efforts of counsel for the respondent to argue the contrary, counsel for the applicants was well‑founded in his submission that there was an evidential basis upon which it was open to the First‑tier Tribunal to infer that the first applicant would be at risk of being tracked down by her husband at places in Pakistan outwith the home area. As was observed by counsel for the applicants, although the error of law said to have been made by the First‑tier Tribunal was one of proceeding on "no evidence", elsewhere in the determination of the Upper Tribunal one finds reference to the adequacy of the evidence. As counsel for the respondent properly acknowledged, such criticisms of the adequacy of the evidence may be more a matter of the weight to be attached to evidence, rather than an error of law.

[16] Counsel for the applicants presented a further submission which was to the effect that the First‑tier Tribunal had also given consideration to the issue whether in any event it would be reasonable and not unduly harsh for the applicants to relocate within Pakistan. The First‑tier Tribunal had reached the conclusion that relocation would not be realistic and had rejected the proposition that it would not be unduly harsh. This aspect of the decision of the First‑tier Tribunal was not said by the Upper Tribunal to involve any error of law. That conclusion would apply esto there were somewhere in Pakistan to which to relocate.

[17] In these circumstances, and for the reasons already indicated, we consider that the decision of the Upper Tribunal should be set aside in terms of section 14(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and that the decision should be re­made, in terms of section 14(2)(b), as a decision refusing the appeals from the First‑tier Tribunal to the Upper Tribunal.