SM (Pakistan) v the Secretary of State for the Home Department

LORD JUSTICE JACKSON: [Prepared without papers so spellings may be wrong] This is an application for permission to appeal to the Court of Appeal.

The facts giving rise to this matter as are follows. The applicant is a 30-year-old woman and a citizen of Pakistan. She comes from a well-off family and is well educated. Her parents now live in the United Kingdom. The applicant grew up in Pakistan. She had the benefit of higher education and attained qualifications in politics and Urdu. In 2009 her mother came to the United Kingdom where her father was already living, so from the age of 24 onwards the applicant was living as a single woman in Pakistan. She went to live with a man called Abdul Wahid, who is the cousin of her father.

The applicant states that on two occasions in October 2013 Wahid sexually assaulted her. On the first occasion he rubbed his hands on the upper part of her body, on the second occasion he held her breasts. On both occasions the applicant resisted and she remonstrated with him.

On 13 October 2013, the applicant came to the UK having made previous lengthy visits to this country. In October 2013 the applicant was refused leave to enter. She was detained while her application was being considered. In April 2014 the applicant made a claim for asylum on the basis that she was a member of a particular social group and that she feared ill-treatment in Pakistan as a lone woman, particularly by reason of her previous experiences with Wahid.

The Secretary of State refused the application. She took the view that the applicant was well able to look after herself. There was no sufficient evidence that she would suffer ill-treatment by reason of the two incidents, to which the applicant referred, and anyway internal relocation was available.

The applicant appealed to the First-tier Tribunal. This matter was dealt with in the detained fast-track system. The applicant's appeal was heard at Yarl's Wood detention centre on 22 May 2014. The First-tier Tribunal Judge refused an application for adjournment and proceeded to deal with the case. The First-tier Tribunal Judge concluded that the applicant could not bring herself within the principles formulated by the House of Lords in the well-known case of Islam v Secretary of State for the Home Department [1999] UKHL 20, 25 March 1999. The First-tier tribunal judge referred to the decision in KA (domestic violence - risk on return) Pakistan [2010] UKUT 216 (IAC).

He noted that the applicant was a person who came from a well-off family which owned property in Pakistan. The applicant had an extended family there, quite apart from the father's cousin against whom the applicant was making complaint. The First-tier Tribunal Judge was satisfied that the applicant had sufficient protection available from the authorities and from other members of her family, and concluded that she could safely relocate. Accordingly he dismissed the applicant's appeal.

The applicant then obtained an expert report from the Asian Legal Advice Service, which was dated 11 June 2014. She obtained this report about a month after the hearing before the First-tier Tribunal. The applicant appealed to the Upper Tribunal placing reliance upon that expert report. There was no oral evidence before the Upper Tribunal. The Upper Tribunal at its hearing on 12 June 2014 concluded that there was no error of law in the decision of the First-tier Tribunal, reviewed the reasoning of the First-tier Tribunal Judge with some care and dismissed the appeal.

The applicant now applies for permission to appeal to the Court of Appeal. The principal ground upon which the applicant now rests her case is that in Detention Action v First-tier Tribunal [2015] EWHC 1689 (Admin), a decision handed down on 12 June 2015. Nicol J held that the detained fast-track rules are unlawful and the process under those rules is unfair. The applicant says that she has been dealt with under the detained fast-track rules and accordingly she is the victim of unfair process.

The problem which I face this morning is that Nicol J's decision is currently under appeal and I do not know what the Court of Appeal will decide when it deals with the matter. As things stand, the claimant is entitled to say that she has been subject to an unfair process as held by a High Court judge; on the other hand, the decision of Nicol J is plainly one that is going to be reconsidered. Permission to appeal has been granted and I anticipate that steps will be taken to bring that appeal on in the near feature.

It is not possible for me to decide the permission application today. In the present case if Nicol J's decision is upheld, then I would have thought that the present applicant has an arguable case. If, on the other hand, Nicol J's decision is reversed on appeal, then in my view the applicant's case (with all due respect to the skeleton argument which I have read prepared by Miss Sood) is hopeless. I think that if one ignores the decision of Nicol J the First-tier Tribunal judge was well entitled to take the view that he did take, the Upper Tribunal were entirely correct in saying that there was no error of law by the First-tier Tribunal, and I can see no basis for criticising the decision of the Upper Tribunal.

This is a case, therefore, which turns entirely, in my view, on the currently unknown outcome of the pending appeal in Detention Action. I therefore indicate my view that if the appeal succeeds in Detention Action, then the applicant's application for permission in the present case should be refused. If the appeal fails in Detention Action, then in that case the present applicant has an arguable case and permission should be granted to her. That is as much assistance as I can give to the parties in the present appeal.

The order which I make is that this renewed application for permission to appeal should be adjourned until after the Court of Appeal has given its decision in Detention Action.