KA & Ors v The Secretary of State for the Home Department

A prosecution in Pakistan will not generally amount to persecution through a denial of a fair trial unless the individual faces a real risk of a flagrant denial of that right. Extremely poor prison conditions do not, on the evidence considered, generally reach the threshold of persecution or Article 3 ill-treatment.

The Protection of Women (Criminal Laws Amendment) Act 2006 materially reduced the misuse of adultery allegations against women. Pre-existing allegations may remain prosecutable, but women accused of zina or attempted murder were held entitled to automatic bail on the Tribunal's construction of the relevant legislation.

Existing country guidance on domestic violence remained valid. Women’s shelters generally provide effective protection, but internal relocation requires an individual assessment which includes the woman’s prospects after leaving a shelter.

The appellants were a Pakistani woman and her two daughters. The Secretary of State refused their asylum and human-rights claims. An Immigration Judge dismissed their appeals after accepting that the woman had suffered domestic violence and had been falsely accused in a First Information Report of adultery and attempted murder.

On reconsideration, the Tribunal held that the Immigration Judge had materially misunderstood the effect of the Protection of Women (Criminal Laws Amendment) Act 2006 and had failed to address the remaining allegations and bail. The factual findings in the appellant’s favour were retained.

The central issues were the risk arising from the criminal process, domestic violence, detention and prison conditions, and whether internal relocation within Pakistan was safe and reasonable.

1. The appeals were dismissed. The Immigration Judge had made a material error of law. His decision was set aside, but the Tribunal remade the decision by dismissing the appeals.

2. The appellant would probably face reactivated proceedings in Lahore under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and section 324 of the Pakistan Penal Code. A pre-December 2006 FIR was a residual category unaffected by the later reforms. However, the Tribunal found that the appellant was entitled to bail as of right on both allegations. She could also seek pre-arrest bail. She was therefore not at real risk of detention pending trial.

3. The general deficiencies of the Pakistani criminal justice system did not establish a real risk of a flagrant denial of a fair trial. Nor did the evidence show that prison conditions generally amounted to persecution or Article 3 ill-treatment. The appellant was likely either to face no case to answer or to be acquitted of the false allegations.

4. In her home area, the appellant nevertheless faced a real risk of persecutory harm. Her husband was likely to continue threats and intimidation, and the local police had previously sided with him. Effective protection in Lahore was therefore unavailable on her particular facts.

5. The risk could, however, be avoided by internal relocation. The evidence did not show a real likelihood that the husband’s family or the authorities could trace her elsewhere in Pakistan. Shelters and private or NGO assistance generally afforded protection to women fleeing domestic violence, despite serious shortcomings. The appellant had no sons who might be separated from her by shelter policies, had family support and some personal resources, and could reasonably establish herself with her daughters in a larger city.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal found a material error of law in the Immigration Judge’s decision, set it aside, and remade it by dismissing the appeals.
• Immigration Judge: The appeals were dismissed on 5 March 2008. The judge accepted the appellant’s account but considered that the Protection of Women (Criminal Laws Amendment) Act 2006 removed the relevant risk.