CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 août 2012

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font:7pt 'Times New Roman'; display:inline-block } .s1C90AC38 { width:6.67pt; font:7pt 'Times New Roman'; display:inline-block } .s6CDEDE67 { margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; text-indent:-21.25pt; text-align:justify } .sB7511820 { width:11.24pt; text-indent:0pt; display:inline-block }       FOURTH SECTION Application no. 63008/11 K.A. and Others against the United Kingdom lodged on 11 October 2011 STATEMENT OF FACTS   The applicants are Pakistani nationals who live in Coventry. The first applicant was born in 1981 and is the mother of the second, third and fourth applicants who were born in 2003, 2007 and 2011 respectively. They were represented before the Court by Mr K. Tanner and Ms D. Sheahan, lawyers practising with Paragon Law in Nottingham and assisted by Mr E. Fripp, counsel. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant arrived in the United Kingdom on 20 August 2006 accompanied by the second applicant and submitted an application for asylum, claiming that she would be at risk of violence and honour killing in Pakistan at the hands of her husband, his family and his associates. She also claimed that she would face detention and prosecution by the Pakistani authorities as a result of false adultery and attempted murder charges that her husband had filed against her. She claimed that she was pregnant and that she would be ill-treated in prison and separated from her child, the second applicant, and, once born, from her baby, the third applicant. 1. Events in Pakistan The first applicant claimed that, in 2001, she had entered into a difficult arranged marriage with a man who had ill-treated her and who had, after the birth of their first child in 2003, started to beat her. On 21 July 2006, she had decided to leave her husband to return to live in her parent’s home because of the violence. In revenge, the first applicant’s husband had filed a First Information Report (“FIR”) against her (see below under relevant background information), falsely alleging that she had committed adultery the previous day with a man called YK (a man unknown to the first applicant); that the adulterous couple had assaulted and attempted to murder the husband’s servant because he had witnessed them commit adultery; and that the first applicant had fled from the family home stealing money and jewellery. Later on 21 July 2006, the first applicant was arrested by the police at her parents’ home and detained for two days in poor conditions whilst the police investigated the charges against her. She was released on police bail and subjected to reporting conditions after her father paid a sum of money on her behalf. The first applicant’s lawyer in Pakistan warned her father that if the police formally charged her in the future, she would be unlikely to obtain bail and the criminal proceedings would take a long time. Due to her fear of her husband, the first applicant’s father arranged for her to stay with a friend whilst on bail. He also attempted to obtain shelter for her in a state run “Darul Aman” woman’s refuge (translated as a “house of peace”) in Lahore but was informed that they would be unable to provide her with shelter because of the ongoing criminal proceedings against her. On 31 July 2006, the first applicant was informed by her lawyer that the police had decided to formally charge her with adultery under the laws known collectively as the “Hudood Ordinances” (see below under relevant background information). Her father then arranged for her departure from Pakistan. She left Pakistan on 19 August 2006 and travelled to the United Kingdom. On 31 August 2006, the first applicant claims that her “case was sent to the court” in Pakistan. The first applicant claims that, since she has been in the United Kingdom, her husband has continued to threaten her family members in Pakistan and the police have continued to look for her because she has breached her bail conditions. Her husband has not sought to lodge divorce proceedings and the first applicant fears that this is so that he will be able to draw out his intended ill-treatment and humiliation of her upon her return to Pakistan. She also claims that her father, who is over 65 years of age, has become seriously ill having had a heart attack and a stroke and continuing to suffer from heart disease and arthritis. She claims that the family’s finances have deteriorated because her father is unable to work and needs expensive medical treatment and that, as a result, her parents have stopped paying for a lawyer. 2. The refusal of the first applicant’s asylum claim and the findings of the then Asylum and Immigration Tribunal On 16 January 2008, the Secretary of State refused the first applicant’s asylum application. It was accepted that her husband might be hostile to her in Pakistan but it was considered that she would have her father’s protection and could internally relocate to a woman’s crisis centre or refuge if necessary. If there were any outstanding criminal charges against her, it was considered that she would receive a fair hearing in Pakistan. On 5 March 2008, an Immigration Judge at the then Asylum and Immigration Tribunal (“AIT”) dismissed her appeal against the Secretary of State’s decision. The Immigration Judge accepted that the first applicant’s account of events in Pakistan was true and further accepted that the FIR (which stated that the first applicant had been accused of adultery with a named man, attempted murder and theft) was a genuine document. The Immigration Judge also accepted that the first applicant had been arrested and detained for two days as a result of the FIR and that her lawyer in Pakistan had been concerned that, if the charges were officially registered against her, she would be detained without bail. Finally, the Immigration Judge accepted that the first applicant’s father had decided that it would be best for her to leave Pakistan and that the serious charges against her were a plausible reason why the owner of the Darul Aman women’s refuge in Lahore had not been prepared to allow the first applicant to stay there. In the circumstances, the Immigration Judge found that, at the time that she had left Pakistan, the first applicant had had a well-founded fear of persecution on account of being a member of a particular social group, namely a woman charged with committing adultery who would have been at real risk of imprisonment in Pakistan under the Hudood Ordinances. He also found that, if she had been re-arrested, she would have had difficulty in obtaining further bail. However, the Immigration Judge concluded that the first applicant no longer faced any risk of imprisonment because of the introduction of legislation in Pakistan in the form of the Protection of Women (Criminal Laws Amendment Act) Act 2006 (“PWA 2006”) which had repealed those parts of the Hudood Ordinances that related to charges of sexual misconduct, in particular the offence of “zina” (a generic term covering, inter alia, adultery and non-marital, consensual sex – see below under background information). Additionally, the Immigration Judge considered that the applicant would not be at risk of honour killing from her husband because she had the protection of her family and because the evidence suggested that honour killings occurred in rural parts of the country whereas the first applicant had lived in Lahore and came from a relatively prosperous background. Additionally, even if the first applicant lacked protection in her home area in Pakistan, the Immigration Judge considered that she would have the option of obtaining shelter in a Darul Aman woman’s shelter. In that regard, it was considered that the only reason that she had been refused shelter before had been because of the outstanding criminal charges against her which would no longer be a barrier on her return because of the repeal of the relevant parts of the Hudood Ordinances relating to sexual misconduct. On 27 March 2008, a Senior Immigration Judge ordered reconsideration because he was satisfied that the Immigration Judge may have erred in law when he had assessed the current risk to the first applicant upon return. On 25 September 2008, during a case management review hearing, it was agreed that the first applicant’s appeal would be suitable as a “country guidance” case (see below under domestic law and practice) on the effect of the PWA 2006 and related matters in Pakistan. On 8 January 2009, a Panel of the AIT concluded that the Immigration Judge had made a material error of law because his findings as to the effect of the PWA 2006 were fundamentally flawed. The Panel directed that the next Tribunal should carry out a fresh assessment of the risk faced by the first applicant upon return to Pakistan based upon the factual findings made by the Immigration Judge. 3. The evidence before the Upper Tribunal The appeal was re-heard before the Upper Tribunal over two days in April 2010. In addition to a large amount of general background evidence relating to the prevalence and spread of domestic violence and problems facing women relocating in Pakistan (some of which is set out below), the Upper Tribunal heard oral evidence from three experts. The first two experts, Drs Lau and Balzani, were instructed by the applicants and had written two reports for the appeal. The third expert, Dr Shah, was instructed by the Secretary of State and had prepared one report for the appeal. During the hearing, his cross ‑ examination by the applicants’ counsel was cut short when counsel for the Secretary of State conceded that Dr Shah was only being relied upon as an expert on Pakistani law and practice and not an expert on other matters in his report, including for example the prevalence of honour killing in Pakistan. The findings of the Upper Tribunal The Upper Tribunal’s determination, the country guidance of KA and Others (domestic violence risk on return) Pakistan CG [2010] UKUT 216 (IAC) , was handed down in July 2010. Having reference to the evidence before it, the Upper Tribunal set out the following general guidance: “In general persons who on return face prosecution in the Pakistan courts will not be at real risk of a flagrant denial of their right to a fair trial, although it will always be necessary to consider the particular circumstances of the individual case. Although conditions in prisons in Pakistan remain extremely poor, the evidence does not demonstrate that in general such conditions are persecutory or amount to serious harm or ill-treatment contrary to Article 3 ECHR. The Protection of Women (Criminal Laws Amendment) Act 2006 (“PWA”), one of a number of legislative measures undertaken to improve the situation of women in Pakistan in the past decade, has had a significant effect on the operation of the Pakistan criminal law as it affects women accused of adultery. It led to the release of 2,500 imprisoned women. Most sexual offences now have to be dealt with under the Pakistan Penal Code (PPC) rather than under the more punitive Offence of Zina (Enforcement of Hudood) Ordinance 1979. Husbands no longer have power to register a First Information Report (FIR) with the police alleging adultery; since 1   December 2006 any such complaint must be presented to a court which will require sufficient grounds to be shown for any charges to proceed. A senior police officer has to conduct the investigation. Offences of adultery (both zina liable to hadd and zina liable to tazir) have been made bailable. However, Pakistan remains a heavily patriarchal society and levels of domestic violence continue to be high. Whether a woman on return faces a real risk of an honour killing will depend on the particular circumstances; however, in general such a risk is likely to be confined to tribal areas such as the North West Frontier Province (NWFP) and is unlikely to impact on married women. Pakistan law still favours the father in disputes over custody but there are signs that the courts are taking a more pragmatic approach based on the best interests of the child. The guidance given in SN and HM (Divorced women – risk on return) Pakistan CG [2004] UKIAT 00283 and FS (Domestic violence – SN and HM – OGN) Pakistan CG [2006] 000283 remains valid. The network of women’s shelters (comprising government-run shelters (Darul Amans) and private and Islamic women’s crisis centres) in general affords effective protection for women victims of domestic violence, although there are significant shortcomings in the level of services and treatment of inmates in some such centres. Women with boys over 5 face separation from their sons. In assessing whether women victims of domestic violence have a viable internal relocation alternative, regard must be had not only to the availability of such shelters/centres but also to the situation women will face after they leave such centres.” Assessing the individual risk to the first applicant on return to Pakistan in the individual circumstances of her case, the Upper Tribunal made the following findings. a. Past ill-treatment The Upper Tribunal stated that they had no doubt that, taken cumulatively, her interrelated experiences in Pakistan (domestic violence experienced at the hands of her husband; his filing of a FIR against her leading to her arrest and detention for two days; the ease with which he had been able to have her detained and to inflict damage to her reputation; his later threat to kill her; and the ongoing harassment of her parents) had amounted to persecution and serious harm. They therefore went on to consider the question of whether such persecution or harm would be repeated upon her return to Pakistan. b. Risk of future criminal proceedings and the availability of bail Regardless of whether or not the police had or had not formally charged her before the first applicant had fled Pakistan, the Upper Tribunal proceeded on the basis that formal charges would be a likely next step upon her return and that, if such a step had not happened already, it would happen when the police came to learn of her return to her home area. The Upper Tribunal was also satisfied that, notwithstanding the reforms ushered in by the PWA 2006, the first applicant would still face charges of zina under the Hudood Ordinances (see below under relevant background information on Pakistan) because the FIR had been issued under the old law and the PWA 2006 did not have retrospective effect. The Upper Tribunal noted however that such charges were “bailable” and that the procedure for bail in the first applicant’s case would be governed by the reformed law. Furthermore, the police investigation of her case would now have to be conducted at a more senior level. Having regard to the provision in Pakistani law for lawyers to arrange for pre-arrest bail hearings and the fact that the first applicant’s father had already paid a lawyer to deal with her case, it was considered that the first applicant would not be at risk of detention except by order of a court. It was also considered that she would be likely to get automatic bail on both the adultery and the attempted murder charges. However, the Upper Tribunal acknowledged that, if they had found that she would not get automatic bail, they would have been likely to find that she would not have been granted discretionary bail essentially because she would be someone who had absconded from the jurisdiction by fleeing abroad and who had been responsible for a lengthy delay in the criminal process. The Upper Tribunal noted that, even if not detained, the first applicant would remain in the criminal justice process and continue to face prosecution under an old law which would mean that her husband would not need to worry about his false accusations resulting in him being charged. The trial process was likely to be prolonged and it was likely that the first applicant’s husband would seek to use the frequent court appearances as a means of harassing the first applicant. c. Child custody issues In relation to any child custody issues, the Upper Tribunal found that there was no evidence to suggest that the first applicant’s husband had any ongoing interest in his daughters, the second and third applicants. He had never raised such an issue earlier or made any such threats in his phone calls to the first applicant’s parents. d. Risk of honour killings In relation to the risk of the first applicant being the victim of an honour killing, the Upper Tribunal still held that: “Given our earlier assessment of the problems of honour killings we do not think it is likely that her husband will actually seek to kill her or have her killed: in addition to two factors we have already identified (her home area not being an area of the country where Jirga councils hold sway; hers being an urban, not a rural area) we note that she is a married woman and that married women are much less likely to be the target of honour killings than single women. In addition, his father is a lawyer whose family’s reputation (we infer) would suffer if his son sought to take the law into his own hands; the dispute has arisen in Lahore involving two families with professional status. This is a far cry from the tribal-based genesis of most continuing occurrences of honour killings.” e. General risk to the applicant in her home area However, in relation to the risk to the first applicant in her home area, the Upper Tribunal held that: “Equally, however, it is accepted that the appellant’s husband has previously made a threat to kill the appellant and her brother and that he has continued to visit her parents’ home and to make clear that he will not stop his vendetta against the appellant. We think it reasonably likely that when she returns he will repeat his threatening and intimidating behaviour and will see the ongoing court proceedings as a way of frightening and demoralising her. We remind ourselves that persecution can arise from threats (certainly threats to kill) as well as from acts: see Article 9 of the Qualification Directive [see relevant European Union law below]. In our judgment, whilst her likely encounter with the Pakistan criminal justice process will not in itself give rise to persecutory harm, it will do so when other circumstances are added to the equation, in particular the circumstance that her husband is very likely to continue to threaten and intimidate her.” The Upper Tribunal found that there would not be effective protection in the first applicant’s home area from her husband having regard both to the fact that, in 2006, the local police had already shown that they had taken the first applicant’s husband’s side in matters and the fact that her parents were of advancing age and may be less able to deal with the social pressures brought to bear by her husband. Furthermore, although the Upper Tribunal recorded that, if criminal proceedings were pursued against her, they considered it highly likely that her trial would result either in a Session court finding that there was no case to answer or in her acquittal, they accepted that her overall circumstances whilst awaiting trial would give rise to a real risk of persecutory harm in her home area. f. Possibility of internal relocation Nevertheless, the Upper Tribunal, noting that Pakistan was a very large country with a large population, did not accept that the first applicant would be tracked down by her husband’s family or the authorities if she were to internally relocate to another area of Pakistan. In particular, there was no evidence to suggest any centralised database or that the state agencies either at a federal or provincial level held sophisticated nationwide databases on their citizenry. The Upper Tribunal considered that there was only a remote possibility of the appellant’s husband’s family being able to trace her through official or unofficial channels. The Upper Tribunal also concluded that it would be reasonable to expect the first applicant to relocate and seek assistance from Darul Aman shelters for women in her position. Acknowledging that the services offered by the shelters were “far too few and had many shortcomings, even in the private NGO sector,” the Upper Tribunal nevertheless did not accept that women returning to Pakistan who sought to access such shelters would be at real risk either of being denied assistance or of receiving ill treatment in them. Nor did the Upper Tribunal consider the fact that the shelter workers might come to know that the first applicant faced criminal charges would cause her to be turned away, since their services were particularly designed to help women fleeing from husbands who had made false accusations against them. The Upper Tribunal accepted that the fact that the first applicant had no history of employment, only modest education and would lack male support away from her home area would give rise to some degree of hardship for her and her children. However, the Upper Tribunal observed that the first applicant and her children had no known health problems and that she had already shown a certain degree of resourcefulness in having been able to leave her husband’s home, then seeking safety first with her parents and then with friends before travelling to the United Kingdom to claim asylum. Further, it was considered that the fact that the first applicant had the support of her family was an extremely important background consideration in her case. Her family had not disowned her and had shown in the past that they had been ready and able to help her with obtaining legal and financial assistance. In that regard, it was considered that the first applicant’s family’s standard of living had not declined and that she had three other sets of relatives, none of whom were said to be poor or to have expressly turned their back on her. Given the lengths which her father and mother had gone to before to assist her, the Upper Tribunal did not consider that they would leave her to relocate elsewhere in Pakistan without any kind of family assistance. Whilst accepting that the first applicant would face difficulties in her home area as a result of her husband’s past vendetta against her and his likely continued pursuit of her through the courts, the Upper Tribunal did not consider that her history would become known in other parts of Pakistan or that she would need to make it known to those she associated with. From the background evidence, the Upper Tribunal considered that in the larger cities single women with children could survive and that there was not the same level of social scrutiny that occurred in the smaller towns and rural areas. The Upper Tribunal therefore concluded that the applicants would have a viable option of internal relocation. Further proceedings The applicant applied for permission to appeal to the Court of Appeal claiming, inter alia, that the Upper Tribunal’s findings concerning honour killings in Pakistan were unsustainable and in contradiction to the available background information; that the Upper Tribunal had wrongly relied on evidence submitted by Dr Shah on his view of honour killings in Pakistan even though the Secretary of State had given a specific concession that she did not rely upon his evidence other than as an expert on Pakistani law; and that the Upper Tribunal’s finding that it would not be unreasonable or unduly harsh for the first applicant to internally relocate to a women’s shelter or otherwise to avoid ill-treatment within Pakistan was flawed. On 1 November 2010, the Upper Tribunal refused that application for permission to appeal. First, it considered that it had properly evaluated the existing evidence regarding the prevalence of honour killings and whether returned Pakistani women with family problems were exposed to a real risk of honour killings. Second, as to the factual question of the concession made before the Upper Tribunal concerning the scope of Dr Shah’s expertise, it was accepted that the concession had been made and relied upon by the applicants’ Counsel but it was not accepted that the Upper Tribunal had been precluded from relying on Dr Shah’s evidence on matters unrelated to Pakistan law even though the Secretary of State had not relied upon that evidence at the hearing. Further, the Upper Tribunal had made it clear that except in respect of matters of Pakistan law they had found the evidence of all three experts of limited assistance since it added little to the background sources on which they drew. Third, it was considered that the Upper Tribunal’s reasons for finding that the first applicant would be admitted to a woman’s shelter had plainly taken into account the evidence about state and private sector provisions for victims of domestic violence. Finally, it was pointed out that the Upper Tribunal had not accepted that the first applicant would be consigned to an indefinite existence in a shelter. 6. Application for permission to appeal to the Court of Appeal The applicants then renewed their application for permission to appeal at the Court of Appeal relying on substantially the same grounds as before. On 24 January 2011, the Court of Appeal refused their application stating that the determination of the Upper Tribunal was comprehensive in its examination of the evidence and was closely and fully reasoned. Differences as to the weight to be given to various items of evidence could not found an appeal. The central decision was considered to be the possibility of relocation in Pakistan and the reasons given by the Upper Tribunal were cogent. On 14 April 2011, the Court of Appeal refused a further renewed application for permission to appeal. Gross LJ agreed with the reasoning of the Upper Tribunal of 1 November 2010 and added that there was no error of law in the question of the risk posed by honour killing or the right to bail. Giving the judgment of the Court, he stated: “It would be difficult on [Mr Fripp - counsel for the applicants’] submission to see why almost any battered or falsely accused wife from Pakistan would not be entitled to Article 3 or Article 8 protection. It is true their evidence would require a certain level of credibility; but having once achieved that, it is difficult to see where Mr Fripp’s submission would stop. The consequence is that one needs to re-examine the premise, and the premise here is that Mr Fripp’s true complaint against the Upper Tribunal is in truth one of fact, not law, and so that ground fails. ... So far as concerns relocation, Mr Fripp’s submission would effectively, even though again he disclaims it, serve to exclude relocation as a practical resolution of the matter. Let us strip it down to its common sense essentials: the applicant, and I have no want of sympathy for her predicament, has a dispute with her husband and his family, not with the Pakistani state. What has been said by the Tribunal is that it is reasonable and not unduly harsh for her to move elsewhere in Pakistan. If the Upper Tribunal has erred in this regard, that to me is an error of fact not one of law. Again, the consequences of Mr Fripp’s submission being otherwise right are unacceptably wide. ... I turn finally to the point which I regarded as potentially the most troubling, the concession point [the Secretary of State’s concession regarding the evidence of Dr Shah]. The answer, as it seems to me, however, is that [the Upper Tribunal] was right. Relatively little turns on it. The key question was not anything said by Dr Shah, but the underlying material. In my judgment the Upper Tribunal was entitled to reach the conclusion it did on that material. An error, if error it was, in that regard would be factual. It follows that if the Upper Tribunal was in error in placing excessive reliance on Dr Shah, it was not material.” Relevant domestic law and practice 1.     Asylum and human rights claims Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Appeals in asylum, immigration and nationality matters were until 14   February 2010 heard by the AIT. Section 103A of the Nationality, Immigration and Asylum Act 2002 provided that a party to an appeal could apply to the High Court, on the grounds that the AIT had made an error of law, for an order requiring the AIT to reconsider its decision on the appeal. The High Court could make such an order if it thought that the AIT may have made an error of law. All applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the AIT. If the immigration judge refused to make an order for reconsideration, the first applicant was able to renew the application to the High Court, which would consider the application afresh. Since 15 February 2010, appeals in asylum, immigration and nationality matters have been heard by the First-tier Tribunal (Immigration and Asylum Chamber). Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. 2.     Country guidance determinations in relation to the position of women in Pakistan Country guidance determinations of both the former AIT and the Upper Tribunal are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the AIT or Upper Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence. In the country guidance determination of SN & HM (Divorced women ‑   risk on return) Pakistan CG [2004] UKIAT 00283, the then Immigration Appeal Tribunal considered the position of women subject to domestic violence in Pakistan and set out guidelines for Tribunals considering such cases. The general questions which had to be asked in cases of the kind were the following: “(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 ( Robinson [1997] EWCA Civ 2089, AE and FE [2002] UKIAT 036361), having regard to the available state support, shelters, crisis centres, and family members or friends in other parts of Pakistan? The appeal should be allowed under the Refugee Convention or Article 3 ECHR only if, on the facts as at the Adjudicator or Tribunal hearing, having regard to the background evidence and jurisprudence, a positive answer can be given to each of these questions.” In the country guidance determination of FS (domestic violence –SN and HM – OGN) Pakistan CG [2006] UKAIT 00023, the AIT held, inter alia , that the background evidence on the position of women at risk of domestic violence in Pakistan and the availability to them of State protection remained as set out in SN & HM . The AIT noted that it appeared that the intention of the Pakistani authorities was to improve State protection for such women but that progress was slow. Every case was still to turn on its particular facts and was to be analysed according to the step by step approach set out in SN & HM , with particular regard to the support on which the appellant could call upon if she was returned. 3.     (EM (Lebanon) (FC) v. Secretary of State for the Home Department (Respondent) UKHL 64 (2008) In the above case, the House of Lords considered the claim of a Lebanese asylum seeker to remain in the United Kingdom to avoid, upon return to Lebanon, the automatic transfer of the custody of her 12 year old son to his father, who had been violent to her and who her son did not know, and the subsequent adverse impact upon the family life of her and her son. Their Lordships noted that the child had not seen his father since the day that he had been born, nor had he had any contact with any of his father’s relatives. Thus, they considered that, realistically, the only family which existed consisted of the applicant and her son. The evidence made plain that the bond between the applicants was one of deep love and mutual dependence which could not be replaced by a new relationship between the child and his father who had inflicted physical violence and psychological injury on his mother; who had been sent to prison for failing to support his mother; who the child had never consciously seen; and towards whom the child understandably felt strongly antagonistic. The Lordships also considered that such family life could not be replaced by a new relationship with an unknown member or members of his father’s family; and that in no meaningful sense could occasional supervised visits by the applicant mother to her son at a place other than her home, even if ordered by the Lebanese courts (and there was no guarantee that they would be ordered), be described as family life. In the particular circumstances of the case, as set out above, their Lordships unanimously found that the return of the applicants to Lebanon would “flagrantly violate or completely deny and nullify” their rights under Article 8 of the Convention. Relevant European Union Law Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted: “the Qualification Directive”) has the objective, inter alia , of ensuring EU Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble). The Qualification Directive was transposed into domestic law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Article 6 of the Qualification Directive states: “ Actors of persecution or serious harm Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7.” Article 7 of the Qualification Directive sets out that “ Actors of protection 1. Protection can be provided by: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State. 2. Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection. 3. When assessing whether an international organisation controls a State or a substantial part of its territory and provides protection as described in paragraph 2, Member States shall take into account any guidance which may be provided in relevant Council acts.” Article 8 of the Qualification Directive provides that: “Internal protection 1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. 2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant. 3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.” Article 9 provides that: “Acts of persecution 1. Acts of persecution within the meaning of article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). 2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment; (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2); (f) acts of a gender-specific or child-specific nature. 3. In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.” Article 15 provides that: “Serious harm Serious harm consists of: (a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” Relevant Background information about Pakistan 1.     FIRs and arrest procedures in Pakistan According to the United States of America Department of State Country Report on Human Rights Practices – Pakistan 2011, published in May 2012 (“the USSD Report 2011”), an FIR is the legal basis for any arrest. Police may initiate FIRs when complainants offer reasonable proof that a crime was committed. An FIR allows police to detain named suspects for 24   hours, after which only a magistrate can order detention for an additional 14 days, if the police show that such detention is material to the investigation. In practice, the police did not fully observe these limits on detention. It was reported that authorities frequently issued FIRs without supporting evidence to harass or intimidate detainees or did not issue them when adequate evidence was provided unless bribes were paid. Furthermore, in respect of bail, the USSD Report 2011 stated that: “Police routinely did not seek a magistrate’s approval for investigative detention and often held detainees without charge until a court challenged the detention. When requested, magistrates approved investigative detention without requiring further justification. In cases of insufficient evidence, police and magistrates sometimes colluded to issue new FIRs, thereby extending detention beyond the 14-day period. The district coordination officer may recommend preventive detention for as long as 90 days to the provincial home department and, with the approval of the Home Department, can extend it for an additional 90 days. The law stipulates that detainees must be brought to trial within 30 days of their arrest. The law defines bailable and nonbailable offenses. On April 18, President Zardari signed the Code of Criminal Procedure (Amendment) Bill, 2011, which grants statutory bail to prisoners undergoing trial and to convicts whose trials and appeals are pending over a prescribed time limit. Under the law prisoners undergoing trial are entitled to statutory bail if charged with any offense not punishable by death and if they have been detained for one year. In the case of an offense punishable by death, the accused is eligible for statutory bail if the trial has not been concluded in two years. Judges sometimes denied bail at the request of police or the community, or upon payment of bribes. In some cases trials did not start until six months after the FIR, and in some cases individuals remained in pre-trial detention for periods longer than the maximum sentence for the crime with which they were charged. SHARP estimated that in 2010 approximately 55 percent of the prison population was awaiting trial. This situation remained unchanged due to a lack of change in the judicial system. The high number of inmates awaiting trial remained a large burden on the country’s jails. In some cases detainees were informed promptly of charges brought against them.” 2.     The Hudood Ordinances In 1979, the following four Hudood Ordinances (laws enacted by the military ruler Zia-ul-Haq to implement Islamic law) were enforced. The first was the offence of “zina” (a man and a woman are said to commit zina if they wilfully have sexual intercourse without being married to each other – this encompasses both adultery and non-marital, consensual sex). The second was the offence of “qazf” (the false accusation of zina). The third was an offence against prope