United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/01971/2018

 

 

THE IMMIGRATION ACTS

 

 

Heard at Manchester Decision & Reasons Promulgated

On 19 ^th August 2019 On 11 ^th September 2019

 

 

Before

 

DEPUTY JUDGE UPPER TRIBUNAL FARRELLY

 

 

Between

 

MISS S I

(ANONYMITY DIRECTION MADE)

Appellant

And

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the appellant: Miss E Rotherford, Counsel, instructed by M and K Solicitors

For the respondent: Mr Bates, Senior Presenting Officer.

 

DECISION AND REASONS

Introduction

1.              The appellant is a national of Pakistan, born June 1975. She is educated to degree level. She has visited the United Kingdom on a number of occasions. She came here in 2006 and remained for four months. She came again in 2009. The third visit was in July 2010. She has remained ever since, breaching the terms of her Visa.

2.              In December 2012 she sought to remain on the basis of article 8 rights. The application was refused in January 2016. Her appeal in September 2016 was dismissed.

3.              The appellant made a claim for protection in July 2017. At that stage she was pregnant. She was screened on 28 July 2017. She gave birth to a son, Abdullah, on 21 October 2017.Her substantive interview took place on 22 January 2018.

4.              She claimed that his child's father is a British national and they are no longer in a relationship. She claims her child is illegitimate and therefore both she and the child would be at risk on return. Beyond naming the father at screening she would provide no other details.

5.              She repeated her claim that she was estranged from her family because she would not take part in an arranged marriage in Pakistan. She claimed to continue to be at risk in Pakistan because of this and the bulb of her interview was concerned with this.

6.              The respondent refused her claim only 24 ^th January 2018. The bulk of the refusal letter is concerned with her claim of being at risk because she rejected an arranged marriage in Pakistan. The refusal rejects the appellant's credibility, pointing out she failed to make this claim on arrival 10 years ago and that this claim has already been dealt with and rejected on appeal. It is only later in the refusal letter when the question of internal relocation is considered that the child features. This is considered in the context of the appellant being returned as a lone female and single parent. The child is then considered in the context of article 8 at paragraph 104 of the decision onwards.

7.              Her appeal was heard by First-tier Tribunal Judge Chambers on 22 August 2018 and in a decision promulgated on 24 August 2018 was dismissed. Again, the focus was on the arranged marriage claim. The judge rejected her claim in relation to this. Regarding the appellant's son, Judge Chambers concluded she had not demonstrated the child was British. The judge concluded she could return with her child and relocate if necessary.

The error of law hearing

8.              Following a hearing on 2 May 2019 I found a material error of law in that the judge failed to make clear findings as to whether it was accepted the child was illegitimate. I preserved the rejection of the claim relating to an arranged marriage. The matter was to be relisted in the Upper Tribunal.

9.              A central issue was the consideration of the child's status and the impact of this upon the appellant's ability to return to Pakistan. Whilst I could not speculate I had raised with the appellant's Counsel the possibility the appellant had undergone an Islamic religious ceremony of marriage here. In that situation then under Islamic law the child would be legitimate.

10.          I had issued Directions to the parties that they be in a position to make submissions on legitimacy and how the appellant would be perceived, irrespective of the child's status. If the claim was being advanced on the basis the child is British then adequate proof was expected.

The resumed Upper Tribunal hearing

11.          I have received a skeleton argument on behalf of the appellant. Disappointingly, this does not address the issues raised in my Directions but continues on the assumption the appellant would be returned as the mother of an illegitimate child. As stated, the refusal letter did not clearly address this issue. The focus in the refusal was primarily upon the claim of an arranged marriage. The appellant was simply described as a single parent. The First-tier Tribunal decision had also focused principally on the question of the arranged marriage. I had set the decision aside because of the failure of the judge to make a clear finding about the child's status. Consequently, the appellant's representatives should have been clear as to what the outstanding issues where.

12.          There is source material for argument on the point but it is not for me to carry out independent research. There are statutory and common law presumptions on legitimacy and no doubt similar provisions in Pakistan which could have been argued. This issue has arisen in relation to claims made by children under the British Nationality Act and the British Nationality(Proof of Paternity Amendment)Regulations 2015.Such matters were considered, for instance, in K (A child) -v-SSHD [2018] EWHC 1834 and in R(on the application of Johnson -v- SSHD) [2016]UKSC 56.There has been an enquiry into whether Sharia marriages in the United Kingdom should be registered.

13.          It is for the appellant to establish she is entitled to protection. On the remaining issues in the appeal in the Upper Tribunal it is for her to establish that her child is entitled to British citizenship and that the child will be perceived as illegitimate in Pakistan.

14.          Mr Bates acknowledge that if the child is illegitimate then he will face difficulties in Pakistan and suggested if this were my finding the appeal could succeed on the basis of article 8. He did accept that the appellant had been consistent in her account about the child being illegitimate and the birth certificate produced does not name his father. He said he had attempted to carry out checks on the name of the father without success. He did query why the appellant had not sought to obtain maintenance from the father given her apparent straitened circumstances.

15.          The appellant gave evidence and was cross-examined. Her child, Abdullah, was born on 21 ^st October 2017. The appellant said that she last had contact with his father when she was three months pregnant. Allowing for the normal gestation period the conception would have occurred towards the end of January 2017.Therefore, on her account contact with the child's father ended towards the end of April 2017.She said she attempted to contact him after by telephone without success. She said she was unaware of his friends or acquaintances.

16.          In cross-examination she was asked how long she had been in a relationship with the child's father. She said she had been with him 7-8 months. She claimed to have little knowledge of him. She said she did not know where he lived and had never met his friends or acquaintances. She was asked where they would meet. She said they met in a coffee shop. She also said that he rented a room in Manchester and that she lived with him there for a number of months. Regarding her own address, she had resided there two years. She said she had asked to meet his family but this had never happened.

17.          She said when she realised she was pregnant she told the child's father. At that stage he told her that he was married and had children with his wife. Consequently, he was not prepared to acknowledge his son.

18.          She was asked how she knew he was British. She said on occasion she had seen him with a passport which he had used to book flights.

19.          She claimed a lack of knowledge about her own family. She confirmed she had been in the United Kingdom now 10 years without permission. She said that her mother and brother lived in Luton. She said her mother came a few months after she arrived. She said she was not contact with either. She confirmed she had a sister in Pakistan and also said she had no contact with her. She denied any possible family support in Pakistan.

20.          I asked the appellant for some more details about the relationship with the child's father. She said they met in July 2016.The relationship became sexual in January 2017, with her quickly becoming pregnant. She said they had cohabited for between two and three months. She had no documents to show a common address.

21.          I asked how she had been supporting herself in the past 10 years. She said she works as a volunteer with the elderly and on occasion they would give her small sums such as £5-£10. She also said that the child's father gave her gifts when they were together. She confirmed the baby had been safely delivered and was well.

22.          In submissions, the presenting officer continued to rely on the reasons for refusal letter. He said the appellant's credibility was in issue. He questioned the likelihood of her supporting herself as described. Her claim of estrangement from her family related to events in Pakistan. However, the First tier judge had rejected this and that finding had been preserved. Consequently, there was no explanation for an ongoing estrangement and lack of contact.

23.          He questioned why she had not sought maintenance from the child's father, particularly given her account of relying on elderly people giving her money. He accepted that if I found the child was illegitimate then, as a lone parent without family, mother and child faced significant obstacles to reintegration and the appeal could succeed on article 8 grounds on the basis paragraph 276 ADE(vi). He continued to resist the appeal being allowed on the basis of protection grounds.

24.          In response, the appellant's representative acknowledged that if the appellant had engaged in an Islamic marriage ceremony here she would be recognised as married in Pakistan. However, she submitted the appellant's child was born outside wedlock. She said the appellant had given a consistent account.

25.          I was referred to the birth certificate not naming the father. While she had not sought maintenance from the father it was pointed out she said she did not know where he lives. She did attempt to phone him without success. In the circumstance she said it was not surprising he would be seeking to avoid her and not want to introduce her to his wife and family.

26.          As a lone woman without family support she will face difficulties in Pakistan. It was submitted that in general women in the Pakistan do not live alone. Where a husband was working abroad there would normally be wider family support. Absent this, the appellant child would be perceived as the illegitimate.

27.          The question of her child's legitimacy would surface when she sought registration, for instance, for school. She submitted as the mother of an illegitimate child the police would not protect her. If she attempted to relocate as a single mother she would stand out. She would face difficulty in getting employment and accommodation. Shelters would not provide a long-term solution. She submitted in the circumstance he was entitled to refugee protection.

Consideration

28.          There is an expert report from Prof Menski. This was obtained on behalf of the appellant for the original First-tier Tribunal hearing. The expert was to advise on the risk to the appellant as an unmarried mother. Therein lies a fundamental flaw, as it proceeds on this premise. The expert acknowledges the respondent's decision makes adverse credibility findings and the expert report should be read subject to these. Because the report is based upon the assumption that the child is illegitimate it is of limited assistance. Nevertheless, it does contain information relevant to the position on return.

29.          The expert makes the point that Pakistan is an Islamic country and extramarital relations are considered Zina and a grave infringement. She referred to the risk of extra judicial punishment including honour killings by family members or extremist groups. She refers to statutory penalties which make it illegal to have sexual intercourse outside of marriage. There is reference to stoning to death albeit the expert states that no person so far has been so punished by the State. There is also the offense of fornication under the penal code which can lead to 5 years imprisonment. At paragraph 21 of her report the expert refers to a requirement of very strong evidence. This includes four male witnesses although she refers to childbirth being used as evidence in one case, albeit pregnancy itself would not be sufficient to prove guilt. Rather, she describes giving birth as circumstantial proof.

30.          The expert deals with the question of relocation. Again, this assumes the appellant is a mother of an illegitimate child. She states that individuals in such situations are often tracked down by their own families.

31.          The expert concludes that as a mother of an illegitimate child she would face prosecution and there was also a real risk of honour killing. Whilst laws have been passed prohibiting so-called honour killings there is rising violence against women generally in Pakistan. The expert concluded there would not be sufficiency of protection. She also comments that whilst there are private sheltered homes these have failed to protect women from violence. She suggests that the appellant can be located through the Nadra system.

32.          The expert then refers to the risk of the appellant's child, again on the basis he is illegitimate. She refers to the stigma attached to illegitimacy and the fact that in Pakistan the name of the father is needed for important documents. Illegitimate child would not have a right of inheritance and could not be registered with the national database without a father. She points out that even highly qualified and educated women suffer discrimination in Pakistan.

Findings.

33.          In a protection claim the standard of proof is relatively low. The appellant must demonstrate a real risk. Nevertheless, the burden of proof is upon her. In relation to her family and her child's paternity she has provided very little information and claims ignorance of most matters. I am conscious of the religious background of the appellant and the stigma attached to illegitimacy in Muslim society.

34.          I do not find it established that the appellant is a mother of an illegitimate child. The expert report and the information confirms the conservative nature of Pakistan and the taboo against extramarital sexual relations. This is particularly so for the female. I do not find the appellant's account of her relationship with the child's father credible.

35.          I do not find it credible she would know absolutely nothing about him. She claimed they had been living together for several months and has provided no evidence to support this. She has made no effort to trace him . On her account she has been without income and living on gifts received from elderly people she does charitable works for. There is no evidence she has sought maintenance from the father of her child, for instance through the government agencies.

36.          I appreciate he is not mentioned in the child's birth certificate and the appellant has consistently said she was not married to him. However, I do not find these claims and her consistent denial sufficient to make the claim credible in the circumstance.

37.          She has not established that her child is a British national. Beyond her say-so she has provided no evidence to confirm the child's father is a British national. He is not identified on the child's birth certificate and there is no other evidence to show the child's father is British.

38.          I do not accept her claim of estrangement from her own family. This is because the underlying basis for that statement, namely, refusal to engage in an arranged marriage was not accepted by First-tier judge. She had said her elder brother is living in Luton and that her mother is there also. She has been living there for 10 years until recently. Her brother sponsored her in two earlier these applications. After she came to the United Kingdom she telephoned her mother to say she was well. Absent the arranged marriage claim there is no reason for any estrangement. The same applies in relation to her sister in Pakistan.

39.          Given my rejection of the estrangement claim she should have the support of her family. If her child is not illegitimate and she has family in Pakistan then she will in a position similar to that of mothers whose husbands are working abroad.

40.          The best interests of the child are paramount consideration. The child is only an infant. He will have no awareness of his surroundings. She has not established that the child is British and as such has an inherent right to be here. Her child would be returned to Pakistan with her and so the family unit would be preserved. The respondent has given detailed consideration at paragraph 10 to 10 of the refusal letter which I would adopt.

41.          It was not suggested she could remain on the basis of her private life. The private life was established when her immigration status was precarious. I have borne in mind the considerations in section 117 B. There was no evidence to show competency in English or that she and her child would not be a drain on the public purse.

Decision

I remake the decision, dismissing the appeal on protection and human rights grounds.

 

 

Deputy Upper Tribunal Judge Farrelly.

 

09 September 2019