FOURTH SECTION
DECISION
Application no. 39328/08
by Farzana KHAN
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 30 June 2009 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 13 August 2008,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Farzana Khan, is a Pakistani national who was born in 1973 and lives in Rotherham. She is represented before the Court by Mr N. Ahmed of Nasim & CO. Solicitors, a lawyer practising in London. The United Kingdom Government (“the Government”) are represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant and her children arrived in the United Kingdom on 18 December 2004 and claimed asylum on 22 December 2004. On 21 February 2005 the applicant’s asylum claim was refused. On 3 June 2005, however, the appeal was allowed. The Immigration Judge found as a fact that the applicant had been the victim of domestic violence, who was not and would not have been protected by the State. The House of Lords in Shah and Islam (see below) had found that victims of domestic violence in Pakistan were a persecuted “social group”. The applicant’s asylum and human rights appeals should be granted because she faced a real risk of being killed if she were returned to Pakistan.
The Secretary of State appealed against this decision. On 7 November 2005 the Asylum and Immigration Tribunal (“AIT”) found an error of law in the Immigration Judge’s decision as he had failed to have regard to the Country Guidance case of SN and HM [2004] UKIAT 00293 and had failed to give reasons why he had declined to follow its guidance regarding the assessment of internal flight. It was also alleged that the Immigration Judge had failed adequately to consider relevant factors in his assessment of risk on return such as the impact of a First Information Report and the ability of the applicant’s family to give her assistance with relocation on return. The AIT considered that further findings would need to be made in respect of internal relocation and undue hardship and adjourned the case for reconsideration.
On 21 March 2006 the AIT reconsidered the applicant’s case. They accepted the Immigration Judge’s finding that the applicant was credible, had been a victim of violence from her husband over a period of time and had sought assistance from two shelters in Lahore which had refused to help her. The AIT observed that:
“killings by husbands are commonplace in Pakistan. This fact combined with a corrupt police force, open to influence by a man who has powerful friends, as has the appellant’s husband, has the result that we are driven to find there is a serious risk that in the appellant’s home area there will not be a sufficiency of protection.”
In addition it was also noted that, if the applicant were arrested by the police in her home area as a result of the First Information Report filed by her husband, she might well face torture and rape at the hands of the police and thus her rights secured by Article 3 would be breached. Nevertheless, the AIT concluded that it was open to the applicant to relocate to another area in Pakistan. In this regard it was noted that the applicant had failed to show that a system existed within Pakistan as a whole whereby someone accused of adultery or theft could be identified. Although it was considered unlikely that the applicant would readily find employment in Pakistan, the applicant could be maintained by her brother in another part of Pakistan without her location being revealed.
On 5 October 2006 the applicant submitted further representations. On 6 November 2007 the Secretary of State refused to treat those representations as a fresh asylum claim.
COMPLAINTS
The applicant complains under Articles 2 and 3 of the Convention that if she were returned to Pakistan her husband would find her and kill her. She also claims that her children will be promised in marriage to her husband’s nephews.
THE LAW
On 3 February 2009 the Court was notified by the Government that the applicant had been granted Indefinite Leave to Remain in the United Kingdom outside of the Immigration Rules. In a letter dated 27 May 2009, the applicant confirmed that she wished to withdraw her application to the Court.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue her application within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.
In view of the above, it is appropriate to strike the case out of the list and discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases and discontinue the application of Rule 39 of the Rules of Court.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy