Consular staff at the British High Commission in Islamabad rescue at least two UK and UK-Pakistani nationals from a forced marriage every week. But how far do the legal tentacles stretch to ensure the immediate and successful repatriation of UK residents, UK-Pakistani nationals and UK nationals from Pakistan to the UK? In August 2010 I ventured to Pakistan as a researcher for the Human Rights Commission of Pakistan to investigate this phenomenon.
Investigating forced marriage
The Forced Marriage Unit (“FMU”) in London, established in 2005, is the only Government unit in the world dedicated to investigating forced marriage. It looks into over 400 cases annually. One half of the FMU’s workload is concerned with overseas repatriation and 65 per cent of the cases concern families of Pakistani origin. Nevertheless, it is thought that thousands of cases go unreported every year. Victoria Bhajam, Director of Dastak, a shelter in Lahore for women whose rights have been denied or threatened, explained that “the growth in forced marriages is due to parents’ genuine belief that forcing their children into marriage, often with other family members, will build stronger family connections and protect cultural and religious traditions”. It is common for parents and extended family members to deceive, threaten, abduct, assault, imprison, and even drug young women and men to ensure they enter into a forced marriage.
The involvement of the British High Commission in Islamabad with the FMUs caseload has been key to successful repatriation. However, consular protection does not extend to UK residents who are non-UK nationals; although in 2008 Mr Justice Coleridge accepted jurisdiction and issued a FMPO for Dr Humayra Abedin (the NHS doctor who was tricked into returning home to Pakistan and held against her will for four months), on the grounds of her habitual residence in the UK. Unfortunately Dr Abedin’s case seems to be atypical. Consular staff typically refer women who are UK residents but not citizens to local NGOs to gain help and support.
When information is received that a UK or UK-Pakistani national is at risk of a forced marriage and the victim is unable to reach the British High Commission of Islamabad, consular staff organise a rescue mission. They do this armed with a FMPO which a third party would have obtained in the UK on the victim’s behalf. This would include wardship if the victim is still a child. When making the order, the English judges invite the Pakistani authorities to co-operate to secure repatriation. The orders require the respondent to reveal the victim’s whereabouts and allow the victim to attend the British High Commission of Islamabad or local courts. Respondent parents – who imagine that they are beyond the reach of the UK authorities once they are in Pakistan – may find that they are in contempt of court when they return to this country.
Rescue missions are emotionally draining and can be physically dangerous, with some families possessing firearms. On arrival at the family home, consular staff highlight the legal importance of the FMPO, and speak with the victim privately. The victim is advised of his or her right to leave the family home and return to the UK, where safe shelter will be arranged for them by the FMU.
There are occasions where consular staff embark on a rescue mission and are met by disgruntled family members who claim the victim has left the family home. In reality, it is likely that the concerned victim has been abducted.
The last resort
As a last resort consular staff will file a habeas corpus petition in accordance with art 199(1)(b) of the Constitution of Pakistan in the High Court of Pakistan, a non-punitive approach, to secure the attendance of children or adults at court, so that the judge may ascertain their wishes and, if coercion is established, ensure the victims’ release and their return to the UK if they wish.
Although a FMPO is not enforceable in Pakistan, recognition that a FMPO was obtained in the UK is included within a habeas corpus petition. The practical effectiveness of a FMPO depends upon the weight attributed to it by a Pakistan court of law, leaving UK lawyers anxiously awaiting the outcome of each habeas corpus petition.
Consular staff filed ten habeas corpus petitions in 2009. With no rules and formalities to ensure victims are protected when giving evidence in open court, only one out of ten victims had the courage to state publicly that she wished to leave her family and return to the UK. Strict rules clearly need implementing in Pakistani courts to ensure victims are protected when giving evidence. A five day delay between filing the habeas corpus petition and the appearance in court, gives the family plenty of time to exert pressure upon the victim. I interviewed a victim of forced marriage, who described her fear on entering court to give evidence at habeas corpus proceedings, “I was forced to give evidence whilst directly facing 50 of my extended family members in open court, my brother stood to my right, my father to my left; I was terrified; I did not answer one question asked by the judge”. The ShirkatGah, a women’s rights organisation in Lahore, highlighted the gross abuse of judicial power, where some judges resorted to lecturing victims, stating in open court that their behaviour is against their religion and culture.
Time for a bilateral treaty between UK and Pakistan?
Hina Jilani, a human rights lawyer in Pakistan, has suggested there is a need for an international framework in the form of a bi-lateral treaty between the UK and Pakistan to ensure the mutual recognition of legal remedies and immediate repatriation of UK and UK-Pakistani nationals from Pakistan to the UK. Drafting a bi-lateral agreement presents two significant problems:
- the UK definition of forced marriage is incompatible with Shari’a law;
- there are justified fears – according to Albert David, Head of Assistance Unit at the British High Commission in Islamabad – that a treaty would enfold rescue missions within stringent rules, resulting in urgent cases taking several months to resolve.
Victims who wish to return to the UK are provided with shelter and counselling at SACH, a shelter for abused women in Islamabad, whilst consular staff arrange an emergency passport (costing £71) and flights back to the UK, all of which takes at least three working days. Victims who do not have enough money for their flight or emergency passport are obliged to take out a low interest loan with the UK Government to enable the Government to recover the costs. Forcing distressed victims to pay for their repatriation penalises them for events outside of their control and may even have the adverse effect of driving victims back into the clutch of their families.
Public funding for forced marriage proceedings remains means and merits-tested in contrast to the Hague Convention (international child abduction cases) and care cases which are not means-tested. Mr Justice Singer in Re SK (An Adult) (Forced Marriage: Appropriate Relief)  3 All ER 421 at , emphasised “it is necessary that public funding be made available so that these cases, which are now not rare, can be investigated by the court properly”. To be eligible for public funding the applicant of a FMPO, the victim or a third party, must have a monthly disposable income below £733; however it is not difficult to envisage a situation where a young and vulnerable person, earning money, would not have access to the necessary funds to pay for legal advice and representation. Dr Humayra Abedin was represented on a pro bono basis, for example.
The way forward
I urge the UK Government to implement a non-means-tested approach for forced marriage proceedings, to abandon charges for emergency passports and flights to the UK, and to publicly address its policy on the non-repatriation of habitual UK residents. To stamp out the abhorrent practice of transcontinental forced marriage, greater co-operation between the authorities in Pakistan and the UK is required in order to ensure the mutual recognition of legal remedies, familiarity with pending forced marriage proceedings and the implementation of extra-jurisdictional long-term community initiatives to reduce the number of such cases.
Charlotte Bailye will join Coram Chambers in October