It is difficult to see how violence which is precipitated by the wearing of a gendered item of clothing such as the veil is not ‘gender-specific’. However, given this gradual linkage between violence, women’s human rights and persecution, it is relevant to consider how UK refugee law applies to Pakistani women specifically, who seek protection against ‘gender-specific persecution’ (domestic violence) ‘for reasons related to their gender’. The summary below demonstrates the process by which Pakistani women are required to fulfil the provisions of UK refugee law.
3.8 Article 1A. (2) of the Refugee Convention
Article 1A. (2) provides the definition of a refugee, namely, a person who:
“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, unwilling to return to it.”50
The five ’limbs’ then of a refugee as recognised in law are as follows. A refugee is a person –
1Who is outside the country in which they normally live.
2Who must have a ‘well-founded fear’ of harm or ill-treatment.
3The harm or ill-treatment they fear amounts to a form of ‘persecution’,
4They have been subjected to such persecutory harm or ill-treatment for a ‘convention reason’ and
5They are unable or unwilling to obtain protection against the persecution they fear

3.9 Credibility
As in the case of any person who is seeking asylum, a Pakistani woman would be required to lay down the facts of her particular case, and establish her credibility. She would be required to address each of the five elements above in order to fall within the definition of a refugee.
A woman’s fear of harm or ill-treatment is considered both ‘subjectively’ and ‘objectively’. Whilst ‘subjectively’, she offers her own opinion and feelings about her fear of harm or ill-treatment, it does
48 See SSHDvK [2006] UKHL 46 49 Pathways to Justice: BMER Women, Violence and the Law, Rights of Women, August 2007, p.87 50 The 1951 Convention relating to the Status of Refugees and its1967 Protocol, Article 1A.(2)
not necessarily follow that, in law, her fear is deemed to be ‘well-founded’. The ‘well-foundedness’ of a claim forms the basis of the ‘objective test’. ‘Objective’ evidence, and its interpretation, including an interpretation of its objectivity, is critical in the determination of her case.
3.10 What constitutes persecution?
Whilst there are particular characteristics of persecutory behaviour, which have been developed by case law, there is no exhaustive list of types of persecutory ill treatment. Instead, the decision-making bodies are required to take a human rights approach51 looking at all the circumstances of a particular case52 in order to determine whether or not a particular type of action or threat of action amounts to persecution. The UNHCR Handbook53 reinforces the need for decision-makers to take into account, when objectively determining what amounts to persecution, the subjective (or personal) element of a person’s fear of persecution. As stated above, awareness-raising of the relationship between women’s personal experiences of domestic violence and persecution has been a gradual judicial process.
Two basic principles therefore underpin the meaning of persecution in refugee law. First, by its very nature and repetition, the act of persecution has to be sufficiently serious so that it amounts to a violation of the absolute human rights of a person as laid down in the ECHR (for example Article 3). If this cannot be demonstrated, then in the alternative, persecution may arise because of a series or accumulation of measures, which include a violation of an absolute human right (such as Article 3), and which affect a person in the same way as above because of the severity of their impact on that person.
Examples of types of persecutory treatment as they affect women include the following: all forms of violence, discriminatory laws, or discriminatory application of laws, disproportionate or discriminatory punishment or prosecution, and withholding or not enabling legal remedies to be used.
Later sections of the report explore in more depth how the decision-making bodies in the UK have dealt with Pakistani women’s experiences of domestic violence and persecutory treatment as described above. These issues are amplified through case studies.
3.11 Persecution: who is responsible?
The Refugee Convention is silent on the matter of who can be a perpetrator of persecution or of fear of persecution. Asylum case law has determined that the ‘perpetrator’ of persecution can be the state, an agent of the state (for example the police, the military or the judiciary), or a ‘non-state entity (for example a spouse or family members). In the case of state level activity, persecution can be shown to have taken place if it can be proven that the ill-treatment was sufficiently serious in human rights terms (as explained above). In the case of familial or other non-state ill-treatment, a person would have to demonstrate that not only was the ill-treatment sufficiently serious, but also that the state was unable or unwilling to provide adequate protection.
Clearly much of the language of persecution is couched in vague or ambiguous terms, and has relied heavily on refugee case law to provide interpretation.
3.12 Risk on return and protection against risk: ‘sufficiency’ of protection
Furthermore, an assessment is required of risk to her if she is returned to Pakistan. The relevant standard for assessment of risk applied in a Pakistani woman’s asylum case, as in all asylum cases in the UK, is ‘a reasonable degree of likelihood’ of events which are feared actually occurring54.
Establishing that such a risk exists does not in itself secure recognition as a refugee; she would also have to address the availability of ‘sufficient’ protection against that risk. Protection is usually deemed to be provided by the state and its institutions, for example, by having an effective police force, or judiciary, which enables a person to effectively access help and justice. However, often in asylum cases, there are claims that the risk of persecution emanates directly from the state and/or its institutions.
51 Gashi [1997] INLR 97 52 Ravichandran (Sandralingham & Ravichandran v SSHD; Rajendrakumar v IAT & SSHD [1996] Imm AR 97 53 The ‘UNHCR Handbook’, para. 52 54 SSHD v Sivakumaran, Vaithialingham, Vilvarajah, Vathanan and Anr and Navaratham, UNHCR Intervening [1988] Imm AR147;
[1988] 1 AC 958.
As indicated above, the Refugee Convention is not explicit about who can be a perpetrator of persecution or of fear of persecution. The Declaration on the Elimination of Violence against Women clearly identifies both the state and private persons as potential perpetrators (see above under ‘International Legal Context). Citing the UNHCR Handbook, it must be either the State of the individual’s country of origin, or “groups that the government either cannot or will not control”55. Case law has followed this guidance and determined that the perpetrator may be the state, an agent or agents of the state or some other entity not connected to the state. In the case of the latter ‘non-state’ perpetrator, a person would need to demonstrate that the state cannot or will not provide ‘adequate protection’’. In the case of a Pakistani woman then, such a perpetrator might be a family member or members, or indeed an entire family, whether natal, by marriage or both.
3.13 Internal relocation
Increasingly, the determination of refugee status is based on the concept of internal relocation56. A person may be able to establish a well-founded fear of persecution for a Refugee Convention reason in a particular part of the country. However the decision makers may also be of the view that they can still return to their country safely albeit by relocating to a different part of it. In order for internal relocation to be inapplicable, a person must show that it would be ‘unduly harsh’57 to relocate (see below). The ‘internal flight alternative’ (IFA) is an international construct developed by different state practices and by asylum case law in each state. It is commonly relied on by the immigration authorities to mitigate against a claim of fear of persecution. In the context of Pakistani women’s asylum claims in the UK, the principle hinges on the belief that women and their children can find safety by relocating to an area within Pakistan which is sufficiently distant from the area that they have fled, where they cannot be traced and where they can live safely.
It is important to identify the essential principles upon which this controversial development in refugee law hangs. The cases of Januzi,58 the ‘Darfur Judgement’ and the latest judgement on ‘undue hardship’ are briefly outlined below. We have also drawn from the UNHCR guidelines on internal flight. However, where appropriate, we have interposed these with rulings from Januzi and other relevant case law where the latter has explicitly departed from or reasserted the guidelines. It is important also to note the relationship between internal flight and the European Convention on Human Rights (ECHR), particularly in relation to whether, by relocating, a person’s fundamental human rights as laid down by the ECHR are, or will be undermined.
3.13.1 Internal relocation: the UNHCR’s perspective
The emergence of inconsistent practices within and across jurisdictions led to a UNHCR response in 2003 in the publication of guidelines on internal flight59. These supplement the UNHCR Handbook and are intended to provide ‘interpretative guidance’ on the issue. Interpretative guidelines are not binding but instructive for practitioners and decision makers when considering how to apply internal flight in practice. The UNHCR guidelines confirm that internal flight is not a ‘stand alone’ principle, nor is it an independent test in the determination of refugee status, but one that may arise as part of the process of determining refugee status. In the case of Januzi, the House of Lords approved the guidelines and their role in clarifying the meaning of internal flight.
The guidelines lay down a broad definition of the concept:
“…internal flight …refers to a specific area of the country where there is no risk of a well-founded fear of persecution and where, given the particular circumstances of the case, the individual could reasonably be expected to establish him/herself and live a normal life”.60
55 The ‘UNHCR Handbook’, para. 65
56 Also known as internal flight. These terms are interchangeable for the purposes of this study. See Chapter 1 for further
explanation of terminology used.
57 R v SSHD & IAT ex parte Robinson [1997] Imm AR 568.
58 Januzi v SSHD [2006] UKHL5, [2006] 2AC 426
59 UNHCR, ‘Guidelines on International Protection: “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees’, July 2003, HCR/GIP/03/04 60 Guidelines, Ibid.p3
3.13.2 UNHCR guidelines on internal relocation
An assessment of this broad definition entails a stage by stage enquiry of its own. It is useful to extract from these guidelines the principled approach they have established which has enabled practitioners and decision-makers to consider claims within a particular legal framework. However, these are simply guidelines and as a result, this has led to diverging and conflicting views about how these should be interpreted and consequently inconsistent judgements in Pakistani women’s asylum claims.
The guidelines pose a series of questions each one of which is addressed with an interpretative legal explanation61:
1. “Is the area of relocation practically, safely and legally accessible to the individual?
Not if barriers to getting there are not reasonably surmountable. This may arise, for example, because of “banditry, harassment and exploitation”. If a person has to pass through the original area of persecution in order to access the proposed area then relocation is not an alternative. Passage through airports may render access unsafe. Some people may need particular documentation, such as ID cards, which if they do not possess would render an area unsafe.
2. “Is the agent of persecution the State?”
The guidelines state that national authorities are presumed to act throughout the country, or exercise their authority countrywide which makes internal relocation not possible, unless the risk of persecution:
“…stems from an authority of the State whose power is clearly limited to a specific geographical
area or where the State itself only has control over certain parts of the country”. (p. 4)
However, in Januzi, the House of Lords stated that there could be no such absolute rule and that the language of presumption was unhelpful. The Court reiterated that a decision-maker should consider all the facts of the particular case and come to a decision based on an analysis of those facts.
3. “Is the agent of persecution a non-state agent?”
Moreover, is he/she likely to pursue the claimant? The motivation of the persecutor, and his/her ability to trace the claimant in the new area, are the primary considerations. If this threat has been established, the next consideration is the State’s ability and willingness to protect the claimant. The guidelines suggest that State protection must be provided by an organised and stable authority exercising full control over the territory and population and must be effective and durable:
“Laws and mechanisms for the claimant to obtain protection from the State may reflect the State’s willingness but unless they are given effect in practice, they are not of themselves indicative of the availability of protection. Evidence of the State’s inability or unwillingness to protect the claimant in the original persecution area will be relevant. It can be presumed that if the State is unable or unwilling to protect the individual in one part of the country it may be able or unwilling to extend protection in other areas. This may apply in particular cases of gender-related persecution”. (p.4)
4. “Would the claimant be exposed to a risk of being persecuted or other serious harm upon relocation?”
The four guiding principles here are that (i) the reach of the agent of persecution is likely to extend to the place of relocation, (ii) the new area must be more than a ‘safe haven’, (iii) the claimant must not be exposed to a new risk of serious harm, including “a serious risk to life, safety, liberty or health, or one of serious discrimination” and (iv) relocation is not possible if the claimant may be compelled to go back to the original area of persecution, or indeed to another part of the country where persecution or other forms of serious harm may arise.
3.13.3 Internal relocation: reasonable and safe?
Judgement in a recent case reiterated that a necessary stage in the assessment process is a consideration of the ‘reasonableness’ of internal relocation, but not to the exclusion of whether it is
61 Guidelines, Ibid p.3 - 7
‘safe’, safe in the sense of “an absence of persecution”62. These tests are to be considered in equal measure, taking into account ‘subjective’ and ‘objective’ factors pertaining to an individual claimant (as with the Refugee Convention; see above). Furthermore, the scope of the assessment is expected to be ‘over time’, looking at whether the area provides a meaningful alternative in the future. Further issues arising out of this case, in particular, the ‘undue harshness test’ are highlighted below.
3.13.4 ‘Undue hardship’ and ‘meaningful protection’
The need to address ‘reasonableness’ against issues of ‘safety’ has predictably led to the emergence of new concepts in attempts by courts to clarify what ‘reasonableness’ means in the context of internal relocation, significantly those which allude to ‘undue hardship’ or ‘meaningful protection’.63 The following extract from the guidelines demonstrates the juxtaposition of objective standards based on those laid down by UN instruments, with the specific characteristics of individual claimants and illustrates more clearly the interpretive conflicts that arise:
“Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?” (p.6)
Relevant demographic factors to identify the person’s personal circumstances should include their:
“…age, sex, health, disability, family situation and relationships, social and other vulnerabilities, ethnic, cultural and religious considerations, political and social links and compatibility, language abilities, educational, professional and work background and opportunities any past persecution and its psychological effects”. (p.6)
The guidelines stress that the ‘lack of ethnic or other cultural ties may result in isolation and even discrimination in communities where close ties of this kind are a feature of daily life’ (p.6) and that cumulative effect of these would need to be addressed. They go on to assert that safety and security must be ‘durable, not illusory and unpredictable’ (p.6) and that consideration must be had for a person’s basic human rights. These basic human rights must be so fundamental to that individual, that deprivation of those rights by having to relocate would be sufficiently harmful to the individual. The guidelines state that economic survival is relevant if, by relocating, a person:
“…won’t be able to earn a living, or to access accommodation or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable to expect a person to relocate and face economic destitution or existence below at least an adequate level of subsistence” (p.6) ….or ”to live in conditions of severe hardship” (p.6) such as slums or on the streets.
Furthermore, if access to land, resources and protection would be denied because a person does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, then they can’t be expected to relocate.
3.13.5 Januzi and ‘undue hardship’
The House of Lords in the case of Januzi established an approach to the interpretation of ‘undue hardship’. This was based on a Court of Appeal decision called AE & Others v SSHD64.
Their starting point was to dismiss what is known as the ‘Hathaway/New Zealand’ rule on how undue hardship should be interpreted. The Hathaway/New Zealand rule encompasses a broad consideration of international standards, and states that internal flight is only appropriate in cases where people can:
“…genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of
62 HGMO (Relocation to Khartoum) Sudan CG [2006] UKIAT 00062, 3 August 2006.This has subsequently become the Darfur
Judgement. See footnote 67.
63 For a discussion of the reasonableness test, and the requirement that basic human rights should be provided and met in the
relocation area see Reinhard Marx, ‘The Criteria of Applying the “Internal Flight Alternative” Test in National Refugee Status
Determination Procedures’, International Journal of Refugee Law, 2002 14(2 and 3), pp 179-218. 64 AE & Others v SSHD (2003) EWCA Civ 1032, [2004] QB 531
civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.” 65
The House of Lords identified five particular points as to why this approach was inappropriate, stating that:
(i) It did not derive in any way from any article in the Refugee Convention;
(ii) It could not be implied into the Refugee Convention;

(iii) Council Directive 2004/83/EC5 (the ‘RQD’, see above) which is binding on the UK did not make an express reference to that approach;
(iv) There was no other academic viewpoint or any international approach which endorsed it and
(v) It created anomalies in the way in which the Convention took effect.

To illustrate the last point, they used the example of a refugee from a poor and deprived country who could, with no fear of persecution, live elsewhere in his country of nationality, but once there, would suffer all the drawbacks of living in a poor and backward country. In their lordships view, if he did not fear persecution elsewhere in his country, then, once he had relocated, he was not entitled to seek protection against the deprivation he might encounter there66.
In the AE case, the preferred approach, their lordships declared that the process of determining undue hardship was:
“…a comparison between the conditions prevailing in the place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker”. (para. 24)
Clearly the distinction between the two approaches is that in the latter case, there is a lesser obligation to address wider humanitarian issues and instead, to focus on the standard a person is ‘used to’ in their country and area of origin.
A second issue was clarified in Januzi. This concerned the role of the state as the feared agent of persecution.
Lord Bingham observed:
“The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state” (para. 21)
3.13.6 Further case law developments on ‘undue hardship’: the darfur judgement
The Court of Appeal decided earlier this year in a case concerning three non-Arab Sudanese men67 to clarify the Januzi position as follows. The decided that the test for establishing undue hardship should take the following approach:
the starting point must be a consideration of the conditions in the asylum-seeker’s home area;
those conditions must be compared with the conditions prevailing in the place to which they might relocate;
the latter conditions, in the safe haven, must be assessed according to the impact that they will have on a person with the characteristics of that individual asylum-seeker;
if under those conditions the asylum-seeker cannot live a relatively normal life according to the standards of his country it will be unduly harsh to expect her/him to go to the safe haven;

65 AE & Others, Ibid. para. 24
66 See the European Council on Refugee and Exiles (ECRE), UK Country Report for 2005, Refugee Council, August 2006 pp.1213 for a summary of this summary. 67 AH, IG & NM (Sudan),SSHD [2007]EWCA Civ 297
• traumatic changes of lifestyle for instance from a city to a desert or into slums conditions should not be forced on the asylum-seeker.
However, the latest judgement of the House of Lords provides a narrower interpretation. It declares that there is no requirement to have as a starting point, a consideration of conditions in the place of habitual residence, but that it is for the decision maker (the BIA) what weight is to be given to that, and all other relevant factors in the context of the particular facts of the case (see SSHD v AH (Sudan) and others (FC) [2007] UKHL 49.
3.13.7 Pakistani women and internal relocation
How then does this analysis of internal flight connect with Pakistani women? The chapters which follow illustrate how the internal flight alternative has particular significance for Pakistani women’s well-being and future safety. However ‘reasonable’ the concept of an ‘internal flight alternative’ appears to be (relocation may indeed offer meaningful protection to some), the controversy surrounding it stems from the lack of uniform and principled application of it by decision-makers, and, specifically, the increasing use of it to deny Pakistani women asylum when they cannot produce ‘enough’ or ‘appropriate’ evidence to negate it.
3.14 Defining ‘membership of a particular social group’
Section 3.7 touches on some of the characteristics of this complex Convention ground, which is the relevant Refugee Convention reason for the purposes of this study. There is no comprehensive, definitive definition of membership of a Particular Social Group (PSG). Instead, it is evolving through asylum caselaw and through the constant linkages being made by practitioners on the nature of discrimination and its relationship to persecution. These developments do not depart from the Refugee Convention. They are endeavours to ensure that there is proper interpretation of the ‘spirit’ of the Convention, which itself is concerned with protecting victims of persecution because of discrimination.
The UNHCR, in accordance with its mandate, issued ‘Guidelines on International Protection’68 to clarify the interpretative process of understanding what a PSG is; more recently, the Refugee Qualification Directive (RQD) attempted a definition which does not appear to depart from the current guidance, or at least does not undermine it69. Certainly there is a pressing view amongst practitioners that the judiciary need to be mindful of avoiding too narrow an approach, in the light of a conflict-strewn world in which people with diverse characteristics and experiences seek protection and justice against discrimination in their countries of origin.
It is necessary to highlight that membership of a PSG must be able to exist outside of persecution, and that persecution of a PSG must be taking place to discriminate, consciously or unconsciously, against that group. However, reference is made below to the significance of this Convention ground for this study in the leading case law authority, Shah and Islam70. Recent developments which elaborate on the defining features of what constitutes a PSG in relation to women’s asylum claims are outlined below.
3.14.1. Shah and Islam
In 1999, the House of Lords made a critical finding in the case of ‘Shah and Islam’ a case concerning two Pakistani women seeking refugee protection against the threat of violence in Pakistan. It held that ‘women in Pakistan’ comprised a PSG. Lord Steyn summarised the position of Pakistani women:
“…the distinctive feature of this case is that in Pakistan women are unprotected by the state:
discrimination against women in Pakistan is partly tolerated by the state and partly sanctioned by
the state…”71
68 UNHCR ‘Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A (2) of the 1951
Convention and/or its Protocol relating to the Status of Refugees, 2002, HCR/GIP/02/01 69 Council Directive 2004/83/EC Article 10 (1) (d); incorporated into domestic regulations by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2525/2006) Article 6 (1)(d)
70 Islam v SSHD and R v IAT ex parte Shah[1999] 2 AC 629 HL 71 Shah and Islam, Ibid, 644
The case formulated an approach to defining PSG which stressed a particular social pattern, namely the discrimination women in Pakistan face. It was accepted that Pakistani women’s experiences were a culmination of the extent of discrimination they face at the hands of the Pakistani authorities and wider society there. They found that the way in which society is structured in Pakistan, the influence of customs, traditions and laws, and the history of women’s experiences there amounted to women being seen as ‘second class citizens’, leaving them with inadequate or no recourse to justice.
Clearly each Pakistani woman’s claim for asylum has to be considered on its own merits, and each woman would be required to demonstrate that the serious harm she has been subjected to or fears, combined with the discriminatory behaviour of the state which amounted to its failure to protect her, results in persecution. She would also as outlined above be required to address the viability of internal relocation. However, the decision in Shah and Islam laid down a precedent on this strand of the Refugee Convention for Pakistani women who feared returning to Pakistan because of domestic violence.
3.14.2. Refining the definition of PSG
Since Shah and Islam, a number of case law developments have contributed to formulating a series of principles which should govern how a PSG is identified. For this study, it is sufficient to summarise as follows: the members of a PSG would need to share a common immutable or innate characteristic (such as their gender or membership of a family). Alternatively, they would need to share a belief which they should not be expected to change because it is a belief which is fundamental to their identity (this might be because of their conscientious objection to war and therefore compulsory national service). Furthermore and in the alternative, the members of the group would need to ‘stand out’ from others in the society because they have a distinct identity.
3.14.3 Recent case law developments on membership of a particular social group
More recently, in two landmark cases which respectively examined the PSG characteristics concerning an Iranian woman and a teenage girl from Sierra Leone at risk of female genital mutilation (FGM), Lord Bingham reiterated that, in relation to PSG cases, the Refugee Convention:
“…is concerned not with all cases of persecution, but with persecution based on discrimination…” 72
Thus emphasising the causal link between discrimination and persecution.
In the case of the Iranian woman, she had been persecuted by the Iranian state because of her husband’s political activities. The House of Lords unanimously found that this amounted to persecution for reasons of her membership of a social group; in her case the social group is defined as ‘her husband’s family’.
In the case of the teenage girl, she succeeded in her claim as a member of a different type of social group, namely ‘women in Sierra Leone or women in Sierra Leone who had not been subjected to FGM’. Their lordships in her case agreed that all women in Sierra Leone were subjected to an extreme manifestation of discrimination, namely FGM.
3.15 Pakistani women and the circumstances in which they might seek asylum
There are essentially four ‘categories’ of Pakistani women relevant to this study who may seek asylum. These are exemplified in the case studies and are:
Women who arrive at a UK port, without entry clearance and request protection. These women, as with any ‘on entry’ asylum seeker, are deemed to be ‘illegal entrants’.
Women, who have entered the UK with entry clearance as spouses of British Citizens, but who, either during or after the two-year probationary period of marriage, subsequently claim asylum due to marriage breakdown. These women may at some point be deemed to be illegal entrants if the authorities can show that they intended to claim asylum subsequent to entry.

72 SSHD v K; Fornah v SSHD [2006] UKHL 46 (18 October 2006), 13
Women who have entered the UK with entry clearance in some other capacity, for example as domestic workers, students, or dependents of students, but who subsequently claim asylum. Again, these women may also be deemed to be illegal entrants.
Women who accompany asylum-seeking spouses as dependents, who subsequently claim asylum in their own right because of domestic violence.

In each case following the terms of the Refugee Convention, the perpetrator(s) of the persecutory treatment which they are escaping from or which they fear, must be in Pakistan (although it may well be the case that agents of the perpetrator(s) may also be in the UK).
3.15.1 Other women: women abandoned in Pakistan
Some women find themselves in ‘limbo’, for example women who are Pakistani nationals who came into the UK with spouse visas and who are subsequently ‘sent back’ because of marriage breakdown. Throughout the course of the study, it has become clear that most of these women have experienced spousal and/or familial violence and are subject to the same cultural ‘shame’ and allegations of ‘dishonour’ as the women in each of the above ‘categories’. The difference lies in their inability to lodge a claim for asylum should they wish to; it remains unclear how if at all a woman can lodge a claim at a British High Commission in Pakistan.
3.16 Applying for asylum
The 2007 handbook published by Rights of Women73 provides a helpful women-specific summary of the steps a woman would need to take and the process she would be required to follow for her asylum claim to be assessed and determined by the BIA. It describes the New Asylum Model and the Case Resolution Programme which since 2007, provide the framework within which all asylum claims are assessed.
It is beyond the ambit of this study to describe the asylum process in detail74. However, there are key stages which need to be emphasised. These are the screening and asylum interviews and the decision-making stage, during which a woman is expected to disclose all the evidence she intends to rely on. Furthermore, it is necessary to elaborate on the financial and accommodation needs a woman might have during her asylum claim. These are discussed below.
3.17 Asylum support: subsistence and housing
Until 2007, NASS (National Asylum Support Service) was responsible for providing accommodation and financial support to registered and eligible asylum seekers (and their dependents) whilst asylum claims were pending. The BIA is now responsible for overseeing these needs.
The BIA’s current policy on providing support when an asylum seeker experiences domestic violence whilst an asylum claim is pending can be found in NASS Policy Bulletin 70 (January 2004). The BIA has, so far, retained the NASS acronym. The Policy Bulletin addresses circumstances when, because of domestic violence, an asylum seeker and/or dependents leave or wish to leave BIA accommodation. The policy statement is unambiguous insofar as it states at paragraph 4.2 ‘the accommodation provider must ensure that a victim and any children are transferred to alternative accommodation that is safe and secure’, and that the offer of safe alternative accommodation should be offered immediately; if this cannot be BIA sponsored accommodation, then to ‘refer the victim to a refuge or consult with the local authority about the action to take’. At the same time, the provider should inform the victim that the reasonable costs of alternative accommodation can be met by the BIA (paragraph 6.2). Our research demonstrated that inconsistent implementation of the BIA’s policy by regional offices has led to great confusion amongst refuges and other women’s service providers, and ultimately, considerable hardship for women (Dwyer et al, 2005).
73 Rights of Women. Pathways to Justice, BMER Women, Violence and the Law, p.90-98 74 The Refugee Council’s information sheet ‘Applying for asylum’ dated May 2007 is a practical and accessible general guide to the process and can be accessed at: http://languages.refugeecouncil.org.uk/pdf/English/Applying_for_asylum-English.pdf
3.18 Decision-making in asylum cases – problems common to most asylum-seekers
Much of the research on decision-making in asylum cases focuses on difficulties experienced by asylum seekers, women and men, in proving their credibility and providing evidence to address each of the requirements under article 1A. (2) of the Refugee Convention. Studies undertaken since 1995 have exposed flawed decision making processes both within the Home Office and the courts and how unfair and arbitrary methods of decision-making were the norm (Asylum Aid, 1995, 1999). In their report ‘Evidence of Torture’ (2001) the Medical Foundation for the Care of Victims of Torture found that the immigration authorities generally ignore the client’s evidence. Accounts of torture are downplayed, and inappropriate refusals are made on the basis of insufficient evidence. Formed in response to ‘citizens’ concerns, the Independent Asylum Commission75 is, at the time of writing undertaking an extensive nationwide review of the asylum system. This will include the collection of testimonies and other evidence which criticise the ‘culture of disbelief’ that many argue permeates decision-making. The Commission’s report is due in 2008. The next section involves further discussion of the ways in which doubts about credibility have impacted on women’s asylum cases.
3.19 Specificity of women’s experiences
In their 2003 report76, Asylum Aid’s Refugee Women’s Resource Project (RWRP) concluded that ‘…the Home Office fails to recognize the specificity of women’s experiences as asylum seekers’77 and ‘that the decision to refuse women asylum seekers protection under the 1951 Refugee Convention was often made on the basis of a gender-blind approach to their claim’.78
This is a contentious conclusion, given the discussion above in connection with the requirement to incorporate a gender perspective on women’s human rights issues and, yet, one supported by credible evidence. In an extensive analysis of the reasons why women’s asylum claims were rejected, the RWRP highlighted key areas of concern. These related to perceptions of women’s credibility79; the failure to regard the treatment of women including ill-treatment because of domestic violence, as persecutory treatment80 and a view that such treatment did not fall within Convention grounds81. The report provides an informative analysis of the culturally masculine framework within which women’s asylum cases have traditionally been assessed. Globally, whilst the nexus between domestic violence and women’s human rights has in principle been established (see Chapter one), these research conclusions suggest that, in the UK, decision making authorities have been more cautious in their interpretation.
3.20 Decision-making in Pakistani women’s asylum cases – particular problems
Of the cases analysed in the RWRP study, only two of the one hundred and two women were from Pakistan.
For this study, the research team have identified three key beliefs that the immigration authorities have expressed in their decisions concerning Pakistani women’s asylum cases in which South Manchester Law Centre has provided advocacy since 2001:
1the belief that the ‘average’ Pakistani asylum seeking woman is an economic migrant,
2that even if her claim is found to be credible there are sufficient statutory and non-governmental (NGO) support services in Pakistan to enable women to seek help, and
3that ‘internal flight’ is a viable option.

75 See the Commission’s website for further details: http://www.independentasylumcommission.org.uk/
76 Refugee Women’s Resource Project, Asylum Aid Women asylum seekers in the UK: A gender perspective. Some facts and figures, February 2003. 77 Refugee Women’s Resource Project, Ibid p.165 78 Refugee Women’s Resource Project Ibid p.166 79 Refugee Women’s Resource Project Ibid. p. 68-89 80 Refugee Women’s Resource Project Ibid. p. 95-102 81 Refugee Women’s Resource Project Ibid. p. 104-115
Clearly, a wide range of factors have contributed to the development and reinforcement of these beliefs. Such beliefs were examined in a global context in Chapter two, and will be further explored in Chapters five to ten. An overview of this material demonstrates that there are clear and distinct issues which impact on decision-making in Pakistani women’s asylum cases.
3.21 Gender guidelines: are they implemented?
In this section we summarise the chronology to the production of gender guidelines which provide a framework for considering women’s asylum cases from a gender perspective. We also highlight the key findings of recent research on the effectiveness of the Home Office’s guidelines.
As outlined above in the section ‘Gender and the Refugee Convention’, a gender perspective, where relevant, is now recognized as a necessary element in fair and balanced decision-making in women’s asylum cases. Unsurprisingly, the drive to provide such a framework for decision-making has come from women legal practitioners; in 1998 the Refugee Women’s Legal Group first produced gender guidelines for use by the authorities82. These were deemed necessary to address procedural and substantive issues in women’s asylum cases and in recognition of their potential to raise awareness of the specificity of women asylum-seekers’ experiences (Crawley, 2000). The Home Office did not implement them, arguing that gender issues were to be mainstreamed into general Asylum Policy Instructions for its caseworkers. It was only in 2000 when the Immigration Appellate Authority (the IAA), the body responsible for decision-making at appeals stage, produced its own Asylum Gender Guidelines83, specifically for use in asylum cases but only limited to the appeals stage of a case, that is, after it had been refused by the Home Office. The Asylum and Immigration Tribunal is the body which now administers and hears all asylum appeals and has retained the 2000 guidelines to inform its process and decision-making.
In the previous section which looked at ‘Gender and the Refugee Convention’ we drew attention to the UNHCR’s 2002 gender guidelines. As stated, they provide basic guidance on how a gender perspective should encompass all decision-making, and importantly, all Convention grounds.
The Home Office finally produced its own version of guidelines for asylum cases in 200484. However, Asylum Aid’s 2006 report on the Home Office’s guidelines (Ceneda & Palmer, 2006) provides a detailed critique of the way in which the Home Office has failed to effectively implement its own instructions on how to take into account the particular experiences of persecution women have faced. The report identified practical obstacles and cultural issues which were leading to women’s claims being unfairly undermined. Whilst the report recognized that not all women asylum seekers would succeed in their asylum claims, it highlighted the need for the Home Office to pay due attention to its own guidelines to ensure that the process of determining women’s claims remained fair.
3.22 Country reports
Reports which provide relevant information pertaining to countries vary in detail, quality, accuracy, analysis and reliability. Their purpose, though, is critical in asylum cases, as they provide commentary about conditions in asylum seekers’ countries of origin for use by decision-makers. For the purposes of assessing asylum claims, these consist largely of those generated by the Home Office and by NGOs working in the field of human Rights, such as Amnesty International.
The following is an extract from the Home Office’s website which introduces the Country of Origin Information Service (COIS), the section of the Home Office responsible for producing country reports. It states that:
“COIS exists to provide accurate, objective, sourced and up-to-date information on asylum seekers’ countries of origin, for use by IND officials involved in the asylum determination process”….They
82 RWLG Gender Guidelines for the Determination of Asylum Claims in the UK, July 1998 (website temporarily unavailable) (Also published as appendix 3 in: Crawley, Heaven (2001) Refugees and Gender. Law and Process, Jordans.
83 Immigration Appellate Authority (IAA) (November 2000) Asylum Gender Guidelines 84 Home Office (March 2004) Gender Issues in the Asylum Claim Asylum Policy Instruction (API)http://www.ind.homeoffice.gov. uk/documents/asylumpolicyinstructions/apis/genderissues
are compiled from reliable material produced by external information sources such as the US State
Department, UNHCR, human rights organisations, and news media”.85
This is a view apparently not shared by others involved in asylum work. In 2003, in response to general criticisms of its’ reports, and to meet its obligations under the Nationality Asylum and Immigration Act 2002, the Home Office set up an Advisory Panel on Country Information (APCI)86. The function of the APCI is to review, provide advice and make recommendations to the Home Secretary about the country reports produced by the Home Office, to help ensure that they reflect current issues, and to ensure their accuracy, balance and impartiality, where possible. In practice, the APCI appears to focus on ensuring that up to date political developments in countries are reflected and on stylistic critiques of COIS reports.
In September 2004, as part of a series of detailed investigations into Home Office’s reports, the Immigration Advisory Service87 published a comprehensive critique, drawing particular attention in their press release to their ‘marked lack of objectivity, resulting in a more positive picture of tyrannical and repressive regimes than that given by comparative sources; evidence of poor research methods; and a lack of editorial oversight’88. These findings were submitted to the APCI for consideration. The APCI also recently reviewed the April 2006 Pakistan COIS report. As described in Chapter one it criticises the overuse of a small number of secondary sources and the associated dangers of information ‘roundtripping’ which can undermine, indeed render unreliable, Home Office evidence. It is also noteworthy for its detailed review of COIS’s limited attention to increasing instability and political upheaval within Pakistan (a focus which appears to reflect the political ‘anti-terror’ concerns and priorities of the Western states). This is a positive commentary on how the Home Office needs to recognise its previous neglect of central-border tensions, state-led repressions and related human rights abuses. However, the APCI review fails to connect these issues with their impact on women. Whilst women’s positions can be understood to be indicators of wider problems within Pakistan (as discussed in the Pakistan chapters – see in particular the section on the Mukhtara Mai case), the absence of any commentary of the content on women’s human rights issues in the COIS report (apart from a reference to improved statistics on violence against women) is of concern, as wider regional instability should not lead to a neglect of the specific impacts on women’s positions.
As the APCI’s mission statement suggests, there is a considerable onus on report writers to ensure that reports reflect the up to date situation in a particular country accurately, impartially and with balance. This requires reliable primary sourcing where possible, unambiguous interpretive methods and findings. A critical issue addressed by the empirical research conducted for this study was whether Home Office reports on Pakistan stand up to this scrutiny. Other reports on abuses against women in Pakistan, such as Amnesty International’s 1999 report (Amnesty, 1999) and the 2001 country report produced by Asylum Aid’s RWRP (RWRP, 2001) are now either nearly ten years old or focused or ‘generic’ commentaries relating to Pakistani women’s circumstances. Our enquiry placed particular emphasis on the extent to which the COIS reports addressed in detail and depth Pakistani women’s positions in relation to the familial, class, religious and societal structures and their association with women’s ill-treatment, as well as the complexities of internal flight (discussed further in Chapters one and eleven).
3.23 Impact of domestic violence on women and service provision
One in three women around the world has experienced sexual violence and other forms of abuse in her lifetime, largely at the hands of male family members (Heise et al, 1999). The Women’s Aid website89 indicates that one in four women nationally experience domestic violence during their lifetimes and between 6-10% of women suffer domestic violence in a given year. It cites the British
85 See http://www.homeoffice.gov.uk/rds/country_reports.html
86 For information about the APCI, see their website at: http://www.apci.org.uk/
87 The Immigration Advisory Service is a national charity which provides advice and representation on immigration and asylum law.
88 See http://www.iasuk.org/C2B/PressOffice/display.asp?ID=194&Type=2, 06/09/04 and for a link to the report.
89 http://www.womensaid.org.uk/landing_page.asp?section=0001000100050007#common. Women’s Aid is the national domestic violence charity which works to end violence against women and children and supports over 500 domestic and sexual violence services across the country.
Crime Survey which found that, nationally, women are also most often sexually assaulted by men they know90.
Whilst trying to seek appropriate forms of safety and justice against domestic violence, the impact on women’s health and well-being, housing needs, education, employment, financial security, mobility and on their children is well-documented (see Chantler et al, 2001, Batsleer et al, 2002). The financial consequences of domestic violence to the public purse are beginning to cause alarm at central and local government levels. The cost to service providers responsible for meeting women’s health, social and criminal justice needs is currently estimated at 23 billion pounds per annum91 (and that is before the impact on children is taken into account).
Various criminal justice and social policy initiatives to address domestic violence have contributed to raising the profile of the consequences of violence to women. These issues combined with bureaucratic concerns about the financial consequences of domestic violence are also provoking debate on the effectiveness of punishment regimes as well as growing debate on alternative preventative remedies. In the meantime, what are the specific issues and consequences for Pakistani women?
3.24 Impact of domestic violence on Pakistani women
The consequences of domestic violence as described in the preceding sections are common to women globally. However as the above discussion indicates, that South Asian women in the UK often experience additional physical and mental health issues as well as additional barriers to receiving appropriate or adequate support that are compounded by complex relations with family, culture, minoritised status and immigration, notably, a high incidence of unreported self-harm and attempted suicide (Chantler,2001). This goes beyond the more traditional discourses on gender and class as the underlying structural barriers to women’s health and well-being. As described previously and elaborated below, for Pakistani women, this has particular significance. Immigration issues apart, the dilemma between protecting honour and exposing their experiences contributes to women’s anxieties and mental ill-health (Aradhana et al, 2005).
A recent study also highlighted the link between domestic violence and substance misuse (Humphreys et al, 2005; Mountian, 2005).Indeed, analysis of South Manchester Law Centre’s case studies suggests that some Pakistani women have self-harmed and attempted suicide by using various substances. Given these emerging issues, the extent of overlap of these issues as they affect Pakistani women and how positive interventions by services can be developed is an area that merits further study in its own right.
3.24.1 The silence of shame: consequences for Pakistani women’s health and their credibility
There are considerable pressures on women to internalise the effects of violence and to not seek recourse to any external intervention. The complex interplay between family honour and the feminised notions of national honour, combined with the state’s role in regulating how women should conduct their lives, results in increasing pressure on Pakistani women whether in Pakistan or the UK. Whilst some women speak out, others may feel equally compelled to remain silent and not seek help and support from services to avoid compounding any perceived dishonour to themselves or their families.
This complex interplay between the public and private nature of their experiences appears to exacerbate women’s sense of ‘self-persecution’ (Chantler et al, 2001) and without doubt, contributes to increased ill-health. Menjivar & Salcido illustrate the critical point at which women who are already vulnerable with immigration-specific concerns are likely to retreat from services, at a time when they are most likely to need them (Menjivar and Salcido, 2002). This inability to access services has wider implications. It potentially leads to women’s testimonies being undermined for not having contacted ‘approved’ services. In addition, women’s mental ill health and lack of well-being, compounded by the inaccessibility of service provision, can in itself result in the absence of any meaningful testimonies when seeking legal justice.
90 For more information on see http://www.womensaid.org.uk/downloads/FAQs.pdf 91 http://www.womensaid.org.uk/downloads/FAQs.pdf p. 17
A recent study on the impact of sexual violence on disclosure during asylum interviews at the Home Office raised additional concerns (Bogner et al, 2007). The asylum interview process attaches considerable weight to the way and manner in which people disclose and express their experiences. This study indicates the inability of the interviewing process to appropriately draw out testimonies and to sensitively enable accounts to be described. Furthermore, it highlights how the interviewing process can undermine the importance of factors such as shame, dissociation and psychopathology in the difficulties asylum-seekers experienced. Certainly the consequences for women in such a position cannot be under-estimated.
3.24.2 Pakistani women with insecure status: avoidance of services
As women with insecure immigration status, their ‘legal status’ is an additional factor which may compound their anxieties about approaching services to access support.
Many South Asian women experience tensions between wanting to seek support from external services to draw attention to their particular circumstances and the consequent threat of further violent repercussions from family and community members. What is often deemed to be culturally sanctioned behaviour renders many women silent with fear as their need for self-protection is put in conflict with a perceived need to safeguard family honour (Gill, 2004). South Asian women as asylum seekers, or as women without independent immigration status, are further mired in this tension; they often fear the additional risk of incarceration and removal if they involve external services (Gill, 2004, p.478).
3.24.3 Service provision in the UK for Pakistani women – structural practices and problems
Attempting to quantify the service and support needs of Pakistani women presents many specific challenges. As highlighted in the previous chapter, Pakistani women originate from a country in which domestic violence as a mechanism of control remains rooted in socio-cultural norms and beliefs about women’s subordination to men, families, the community at large, and the state. This renders many women, in their apparent acquiescence, silent about their needs (Khalid, 2007). Reference has previously been made to recent research to ascertain the specificity of South Asian women’s service provision needs (Chantler et al, 2001, Batsleer et al, 2002). However, as those studies highlighted, services have failed to develop suitable approaches to identify how best to connect with the less visible elements of Pakistani and other South Asian women’s experiences. They also demonstrated that domestic violence and other support services continued to operate within a ‘racist’ framework which prevented this depth of connection, hindered women’s access and further contributed to Pakistani women’s ill-health and lack of well-being.
There are without doubt practical barriers which service providers are subjected to, and which impact on their ability to deliver services to asylum-seekers (Ghebrehewet et al, 2002). Arguably, these are barriers which affect the delivery of services to the whole spectrum of asylum-seekers, for example, insufficient resources, lack of reliable and suitable interpreters, and lack of information about asylum-seekers’ health status. Furthermore, these obstacles may be indicative of the inherent cultural practices to which Batsleer et al (2002) make reference. Some of these barriers were identified by participants during interviews in the UK and are examined in Chapters eight to ten.
3.24.4 The ongoing need to culturally sensitise services
This raises questions, about the extent to which support services and providers of welfare still need to culturally sensitise domestic violence services for women of any national origin and immigration status and whether such action is on its own a sufficiently adequate response (Weissman, 2000, Gill,2004, Burman et al, 2005).This is particularly salient for a historical moment which is witnessing greater global movements of women, from a wider range of countries and ethnicities, than ever before. It is also a period which is experiencing an increasingly high incidence of violence against women, both on a global and national level. It is noteworthy, that there is ongoing discussion in the UK on appropriate ways of devising holistic care and integrated practice for and with black and minority ethnic individuals and communities who may need to access health and social care services92 and other welfare and support services, thus reflecting the need to respond to individualized characteristics in changing populations. In the meantime, concerns about structural barriers, their reinforcement of oppressive practices at many levels including service provision level, and their consequent role in sustaining the distress that many women experience, remain.
South Manchester Law Centre’s experience of casework concerning Pakistani women has increasingly demonstrated the need to explore the apparent limitations of social, practical and support services for Pakistani women who are in the asylum system, particularly physical and mental health provision. Where domestic violence services do exist, questions remain about their ability to address the specificities of Pakistani women’s experiences efficiently and effectively. These issues are highlighted in Chapters eight to ten.
3.25 UK law on domestic violence
It is useful at this point to briefly identify the various relevant measures in the civil and criminal justice system applicable to Pakistani women93.
This is particularly relevant in cases encompassing the second, third and fourth ‘categories’ of Pakistani women described in the section ‘Pakistani women and the circumstances in which they may seek asylum’, as they are more likely to be seeking protection against perpetrators based in the UK (usually a spouse and/or members of the family) as well as in Pakistan. However women who entered the UK with a view to claiming asylum are not precluded; women seeking refugee protection on entry may fear abuse in the UK as well as in Pakistan, for example where they have hostile family members in the UK.
The Pathways to Justice Report94 contains succinct and practical guidance on current UK criminal and civil remedies available to women, including Pakistani women with insecure immigration status or asylum claims in the UK. These are remedies which offer some form of legal redress and which may facilitate their access to services.
The measures referred to below can serve two purposes. Firstly, they offer some form of temporary protection to immigrant women in any of the above categories against ongoing actual or threats of violence emanating from within the UK (Weissman, 2000). In addition, they ought to assist in persuading the immigration authorities to delay or avoid coercive measures against their immigration status. Certainly, use of these measures where appropriate and where accessible, can contribute to the body of essential credible evidence, for example, in a woman’s asylum claim.
It is relevant to this study that such measures contribute to exposing the Home Office and the fragmented and contradictory way in which it ‘manages’ domestic violence as it affects women with insecure immigration status. Through its responsibility for dispensing criminal justice via the legal system, its responsibility for the police, and significantly, for immigration control, this intersection of responsibilities within state practice draws attention to the complex relationship between the state, women’s distress and their potential to find safety (Burman & Chantler, 2005). It is very likely to dissuade many women with insecure immigration status from requesting intervention to protect them from domestic violence.
We should point out that this study focuses specifically on identifying the range of issues which Pakistani women may be required to confront in their attempts to address their need for protection against domestic violence.
3.25.1 Strategies and remedies under criminal law
At policy level, The Crime and Disorder Act 1997 places a duty on local authorities and the police to
92 See Journal of Integrated Care Practical Evidence for Service Development Volume 15: Issue 3: June 2007 Practical Evidence for
Service Development 93 For a more thorough discussion of UK provision for women around issues of domestic violence and the practical effectiveness of criminal and civil remedies, see Pathways to Justice: BMER Women, Violence and the Law, Rights of Women, August 2007
94 Pathways to Justice. Ibid.
work with other agencies to tackle crime, including domestic violence95. Since 2004, Primary Care Trusts are also required to address these issues in multi-agency partnerships, with the police as one of the key partners.
In practical terms, criminal courts have the power to make restraining orders (a civil law remedy) under the Protection From Harassment Act 1997 (PFHA). The Youth Justice and Criminal Evidence Act 1999 introduced ‘special measures’ for vulnerable or intimidated witnesses to enable, in theory, more effective prosecutions. The Domestic Violence Crimes and Victims Act 2004 is a further attempt to provide a framework for linking criminal and civil law and contains measures which strengthen the powers of criminal courts to enable them to interpose civil law remedies96.
3.25.2 Inadequacy of criminal remedies
An analysis of these criminal law measures suggests that they essentially focus on punishing the perpetrator. Whilst punishment of the perpetrator is arguably a form of protection, these measures are considered to be inadequate, inconsistently applied, continue to raise questions about conviction rates and are therefore limited in their ability to protect the women97. This fact alone is widely regarded as a key reason why so few women disclose abuse and seek legal protection98. Moreover this is compounded by the finding that the most dangerous times for a woman experiencing domestic violence are the periods when she is planning or making an exit, pregnancy and the period following her disclosure of violence99. Nor do these criminalizing measures address other socio-legal issues which often arise in domestic violence matters such as housing needs and protecting children. The section on civil remedies below outlines how these some of these gaps might be addressed.
There are also various government led crime reduction initiatives which form part of a long-term approach to devising multi-agency participation and responsibility in tackling domestic violence100. Alongside this, campaigning work has been led by organisations such as Southall Black Sisters to bring the problem of honour-related violence into the public domain and for such violence to be properly addressed as criminal acts against women’s human rights. The Forced Marriage (Civil Protection) Act 2007 is the government’s formal acknowledgement of this. In its attempts to tackle honour related violence, this piece of legislation is developing further inroads to bringing together criminal and civil measures and has a key role to play in shifting the emphasis from ‘culture’ to ‘crime’.
3.25.3 Civil remedies
Protection from violence in the home is covered by Part IV of the Family Law Act 1996 (as amended by the Domestic Violence Crime and Victims Act 2004). Under Part IV of the 1996 Act a woman can apply for two types of injunctions: non molestation orders which provide protection from violence and abuse, and occupation orders which determine the occupation of the family home. The Act also introduced the new concept of ‘associated persons’, where a woman is legally ‘associated’ to an abuser. The concept allows for the broad range of relationships which exist between people and within families, beyond traditional ‘husbands and wives’. The 2004 Act, inter alia, widens the protection to, for example, same-sex and non-cohabiting couples, criminalises breaches of non-molestation orders and widens the definition of ‘associated persons’ to include cousins. Access to these measures is largely dependent on access to legal aid funding101.
95 The summary in this section is laid out in more detail in the Women’s Aid Federation of England website (see footnote 90),
‘A Guide to Domestic Violence and the Law’, published by Rights of Women, (January 2007) and the Rights of Women report
‘Pathways to Justice’, pp.120-132.96 ‘Focus on Women’, 7th Edition of the Rights of Women Policy Newsletter, 08/06/07: in spite of the fact that its name has been
criticised as a misnomer: a mere 8 pages out of 130 in the Act relate specifically to domestic violence and it is now regarded as a
bill relating to general crime such as road accidents rather than living up to the government’s claims that it would radicalise the
law on domestic violence97 Women’s Aid Federation of England, March 2006 http://www.womensaid.org.uk/page.asp?section=00010001000900050001
98 Women’s Aid Federation of England, ibid.
99 Women’s Aid Federation of England, ibid.
101 See http://www.crimereduction.homeoffice.gov.uk/
101 See the Pathways to Justice report, pp.155-157 for practical guidance on accessing public funding to pursue legal redress.It is interesting that unlike the US (see Goldman, 1999), domestic violence legislation in the UK does not make specific independent provision to regularise a woman’s immigration status where she has fled a marriage because of domestic violence.
3.26 Relevant political and legal changes in the UK during the study period
The UK government’s determination to respond to ‘public’ anxiety about a range of immigration issues as well as the national pre-occupation with asylum and terrorism, has culminated in, what many consider to be, yet further draconian legislation. We have outlined below new measures introduced during the study period and which will have a direct impact on Pakistani women who seek protection against domestic violence.
3.26.1 Applying for indefinite leave to remain following grant of refugee status: new tests to assess language skills and knowledge of ‘life in the UK’
If a woman is granted asylum, she will be recognised as a refugee within the terms of the Refugee Convention. After five years with refugee status, a woman can apply for indefinite leave to remain (ILR). All refugees aged between 18-65 who are eligible to apply for ILR on or after 2 April 2007 must show that they have sufficient knowledge of English and ‘life in the UK’ either by passing a ‘life in the UK test’ or gaining an approved ESOL qualification102.
Women who entered the UK under the spouse visa, and subsequently leave their spouse because of violence, can still apply for ILR under the domestic violence immigration rule. Women who fall within this category are exempt from these new language and citizenship tests.
3.26.2 UK borders act 2007
This Act received its Royal Assent on 30 October 2007 having been first introduced in January 2007. This Act introduces a raft of measures consistent with the general pattern over the last ten years of legislation on immigration control. Its aim is to defend the UK’s borders from illegal immigration and organised crime by increasing powers for immigration officers, further reducing the rights and mobility of people subject to immigration control103.
3.26.3 Forced marriage (civil protection) act 2007
This Act received its Royal Assent on 26 July 2007. The Act is not yet in force and will not be a ‘stand alone’ Act; it will be incorporated into the Family Law Act 1996. The aim of this legislation is to prohibit forced marriage in the UK.
It also aims to allow third parties to start legal action on behalf of a woman threatened with a forced marriage, not just in the high court but also in the county courts. Furthermore, it aims to include criminal sanctions and civil remedies104.
This chapter has provided an overview of how refugee law in the UK has developed to recognise domestic violence as a form of persecution and has highlighted the difficulties many Pakistani women have nonetheless experienced in accessing protection. It has also drawn attention to the complex relationship between service provision in the UK and Pakistani women’s experiences of attempting to gain support and safety. The chapters which follow provide an overview of the material gathered from interviews conducted in the UK.
102 For further details see http://www.ind.homeoffice.gov.uk/6353/11464/gandaapril2007.doc
103 For progress on the timeline for implementation of the Act see http://www.publications.parliament.uk/pa/pabills/200607/
uk_borders.htm
104 See the Pathways to Justice report pp. 133-142 for a description of the criminal and civil provisions in the Act.Aktar’s case
Aktar is a shi’a Muslim. Her father is a wealthy landowner and prominent political figure in their local shi’a community. Aktar’s father held a senior position in the regional branch of a radical shi’a political organisation, now banned by the Pakistani government as it has been dubbed a terrorist organisation. He joined a new shi’a group which is now under international scrutiny.
At the age of 17 and still at college, Aktar saw and fell in love with a sunni Muslim teenager from the adjoining boys college. He too noticed Aktar and fell in love. He came from a wealthy landowning family of sunni activists; he himself had been a student leader with a prominent pro-sunni organisation. They managed to exchange notes and meet secretly. This liaison continued for a short period. Aktar’s father had plans to marry her to one of his nephews. She discussed the problem with her boyfriend. The couple were in love. Helped by his male contacts who were well connected, he arranged a ‘court’ marriage. The couple got married in secret.
The couple returned to their families initially, but did not disclose any information about their relationship or their secret marriage until nine months later. Aktar’s father continued to apply pressure on her to marry his nephew. On informing her husband about the tensions at home, he told his family what they had done. His family were furious but decided to enter into negotiations with Aktar’s father to bring the matter out into the open. On hearing the news, Aktar’s father threatened to kill her. Aktar immediately fled to her husband’s family house. They were only willing to give her short-term shelter because they feared reprisals from her father. He informed her before she had fled that she had dishonoured herself, him and his family. He told Aktar she must pay to protect his honour.
Aktar’s husband and his family arranged for her to be moved to different addresses in Pakistan to avoid being tracked down by her father. Because of her father’s connections, she could not go to the police. A couple of months later, her husband’s family sent him to the UK to study, without her. For four years, Aktar continued to live in different places with different contacts arranged for her by her husband. She moved to different parts of the country for short periods, to avoid being tracked by her father or his contacts. On several occasions, Aktar’s husband returned to Pakistan to meet her at the secret locations. On one occasion, he arranged for her to obtain a visit visa to stay with him in the UK for a period. She did not claim asylum in the UK on that occasion. The couple had wanted to live safely in their homeland.
Soon after her return, whilst still staying in a secret location with her husband’s contacts, Aktar gave birth to the couple’s son. A few weeks later, during one of the few occasions when she had gone out, an armed motorcyclist pulled up near her and drew out a knife with a view to stabbing her. It was clear to Aktar that her father had managed to track her down. After this incident, and following extensive arrangements, Aktar arrived in the UK with her son and claimed asylum at the airport on arrival.
Her claim was based on her fear of her father, his threats to carry out an honour killing, the fact that as a wealthy political figure linked to an extremist shi’a movement he could wield influence anywhere in Pakistan, that the police and other state authorities cannot protect Pakistani women against such powerful and connected men and that she could not live safely anywhere in the country. She produced extensive documents about her father’s extremist politics, some which contained his name as a prominent figure. She was able to produce these documents and get regular updates about her father’s threats via a sister who lived in the US but had retained contact with the family in Pakistan. The Home Office rejected her asylum claim.
On appeal, the decision went in Aktar’s favour. The judge found her to be an articulate, well-educated credible witness who had produced reliable documents. The judge accepted Aktar’s evidence that her father intended to kill her. The judge held that Aktar could not live safely anywhere else in Pakistan. The Home Office appealed against that decision; they disputed findings on the extent to which the Pakistani state can offer protection and the findings on internal flight. At the next appeal, the tribunal agreed with the Home Office that whilst Aktar could not return to her home area because of father’s influence there, she could move with her young child to another area of Pakistan, in spite of the fact that she had already spent years ‘on the run’ and had eventually been tracked down. They held that whilst state protection was limited, it existed to a ‘sufficient’ degree. The tribunal also held that it would not be ‘unduly harsh’ for her to establish her own life elsewhere in the country with her child.The tribunal stated that her husband had a ‘personal’ duty to abandon his studies and return with her and their child to provide male protection. Finally they held that there was insufficient evidence that her father would ever know of her return to Pakistan; that he would find out where she was living; that he still desired to carry out an honour killing against his own daughter; that his influence was not limited to his local area; and that she could not get state protection in another area.
Following two suicide attempts since her arrival in the UK, the couple’s marriage broke down. They divorced in the UK. Aktar attempted a fresh asylum claim, on the basis that she would have to return as a single parent, that her father continued to make threats against her. The Home Office rejected her second claim for all of the above reasons. Subsequently, Aktar produced further fresh evidence of her father’s resurgence as a political figure in connection with another extremist shi’a party. Through a contact in Pakistan, she obtained newspaper cuttings covering the whole country which reported on her father’s speeches to shi’a groups on the scandal concerning cartoons depicting the prophet Mohammed. His speeches were designed to agitate and mobilise the shi’a. One speech contained his comments about the need to control and subjugate women. At the time of writing, Aktar was considering her options.