Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: AA/00129/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On April 11 2017
On 24 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MS B H Y
(ANONYMITY DIRECTION)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Mackenzie, Counsel, instructed by Hasan Solicitors
For the Respondent: Mr Harrison (Senior Home Office Presenting Officer)
Interpreter: Mr Qasem

DECISION AND REASONS

1. The Appellant is a citizen of Chad. On August 6, 2014, 2015 she applied for asylum. The respondent refused her application on January 7, 2016 under paragraph 336 HC 395.

2. The appellant appealed that decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on January 22, 2016.

3. Her appeal came before Judge of the First-tier Tribunal Obhi (hereinafter referred to as the Judge) on August 25, 2016 and in a decision promulgated on September 26, 2016 the Judge dismissed the appellant’s appeal on all grounds.

4. The appellant lodged grounds of appeal on October 10, 2016 submitting the Judge had erred by failing to make adequate findings on material issues including the issue of membership of a particular social group and internal relocation.

5. Permission to appeal was granted by Upper Tribunal Judge Pitt on December 7, 2016 and the matter came before me initially on February 21, 2017. On that occasion I accepted Mr Mackensie’s submission that the Judge’s assessment was flawed because the Judge, in assessing whether the appellant was a member of a particular social group, failed to have regard to material that was before her and in particular the documents at pages 136 and 137 of the appellant’s bundle and paragraphs [55] to [71] of Professor Joffe’s report.

6. At the commencement of today’s hearing Mr Harrison accepted the appellant was a member of a particular social group. I indicated to the parties that the issues for me to consider in those circumstances were:

a. Was internal relocation an option for the appellant or would she be traced by extended family members?

b. If she was traced would there be sufficiency of protection available to her.

7. At the original hearing the Judge made the following positive findings and I retained those for the purposes of this hearing:

a. She was a national of Chad.
b. She was taken back to Chad by her former husband, abandoned by him with her parents and he then divorced her.
c. She suffered domestic violence at his hands whilst living here with him in the United Kingdom and required hospital treatment.
d. She was assessed as facing a high risk of abuse but returned to her husband but this was because she was under pressure to do so by her husband.
e. She was mistreated after she returned to Chad by members of her family because she had brought shame on them.
f. Her family would try and ensure she entered into another arranged marriage.

8. Mr Mackensie confirmed he would be calling the appellant and inviting her to adopt her recent statement. He would then be relying on his skeleton argument and the documents submitted with the updated bundle.

9. The matter came before me on the above date and the parties were represented as set out above.

10. I extend the anonymity direction made in the First-tier Tribunal and on the last occasion by myself.

EVIDENCE

11. The appellant adopted her recent statement dated March 31, 2017 and re-affirmed her earlier statements of August 28, 2015 and August 15, 2016.

12. Since leaving Chad and coming back to the United Kingdom the appellant has had no contact with any family. She is aware her family know she is here because some of her friends return home and will have discussed the fact that have seen her with her family and mutual friends. However, the appellant believes she is safe here as she is out of the reach of her family and ex-husband.

13. She has no contact with her son who she believes now resides with his father’s family.

14. She would be unable to return to Chad and live safely. Her ex-husband’s family have a large number of relations and she would be identified when returning through the airport.

15. Whilst it was true she lived undetected in both Koundoul and Guelengdeng this was because she lived in hiding. When she lived in Koundoul she lived with a friend called F and only went out in the early hours of the morning maybe once or twice a week to sell fruit and beans. The rest of the time she stayed indoors with her son. When she went to live in Guelengdeng she only went out when it was absolutely necessary. She only went out around five times and spent the rest of her time looking after her son, cooking and sleeping.

16. As a lone female she would not be safe in Chad as single women need either a brother, father or husband to protect them. The appellant has no such protection for the reasons accepted by the Judge in the First-tier Tribunal.

17. She no longer has any contact with F as she cannot get through to her on the telephone number she used to have but even if she was able to re-establish contact she does not believe she would be safe there in the long-term because eventually her family would locate her and it is not a life having to stay in hiding.

18. The appellant fears her family because she brought dishonour because her husband divorced her and she has refused to re-marry the person her family chose for her. She last heard about her son in the summer of 2016 when a friend of her ex-husband and his family on Facebook told her she had seen a post about him leaving France.

SUBMISSIONS

19. Mr Harrison accepted that the appellant was a member of a particular social group and based on the earlier preserved findings he accepted the appellant could not return to her family or home area. However, he submitted that she had demonstrated an ability to live elsewhere without any interference from her family or ex-husband and when she lived with F she was safe as she had a male protector. It would not be unduly harsh or unreasonable to expect her to return and resume that life.

20. Mr Mackensie adopted a skeleton argument filed in these proceedings. He pointed out that the appellant’s evidence had been largely accepted by the FTT Judge. Mr Harrison had conceded she was a member of a particular social group based on the evidence presented submitted including the report of Professor Joffe. The Judge had accepted she had been abused by her family in Chad and they had tried to force her to re-marry.

21. The issue for today was whether it would be unreasonable or unduly harsh for her to re-locate. The appellant’s evidence was that she had remained indoors continuously because she feared she would be located by members of her extended family or tribe. On one occasion in Koundoul she had been spotted by her sister in the market and she had to relocate again this time to Goelengdeng where she remained indoors all the time unless she took her son for medical treatment. Professor Joffe’s report at paragraph 71 supports her claim that she would be unable to relocate safely and reasonably in the long term without being discovered due the fact her extended family was dispersed around the country.

22. Mr Mackensie submitted it was no answer to suggest that she should have to remain in hiding permanently and he referred to the decision of EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC) to support this submission. She had no money and if returned as a single woman she would be unable to afford anywhere to live. She would be forced to obtain work as a sex worker or in low paid labouring work. This would increase the risk of her being located by her family as she would be readily identifiable by her name and accent a Gourani. She had no one to turn to in Chad and in the circumstances her prospects of relocating were virtually nil.

23. There was a lack of protection available for her from the authorities as the evidence suggests the security forces are unlikely to intervene to protect a woman from violence within the family and/or from forced marriage.

24. Mr Mackensie invited me to allow the appeal.

DISCUSSION AND FINDINGS

25. In her decision the Judge made positive findings about the appellant’s case and in particular she found the appellant:

a. Was a national of Chad.
b. Was taken back to Chad by her former husband, abandoned by him with her parents and he then divorced her.
c. Suffered domestic violence at his hands whilst living here with him in the United Kingdom and required hospital treatment.
d. Was assessed as facing a high risk of abuse but returned to her husband but this was because she was under pressure to do so by her husband.
e. Was mistreated after she returned to Chad by members of her family because she had brought shame on them.
f. Would be forced by her family to enter into an arranged marriage.

26. When this matter last came before me I concluded there had been an error in law and I preserved the above findings as they were not challenged by either party.

27. I formed a preliminary view that the appellant was a member of a particular social group and today Mr Harrison confirmed that he agreed with that view in light of these findings and Professor Joffe’s report.

28. Taking into account the Judge’s preserved findings and the acceptance that the appellant is a member of a particular social group, there remained two outstanding issues:

a. Is internal relocation an option for the appellant?

b. If she was traced would there be sufficiency of protection available to her.

29. I am assisted to a large degree by the updated appellant’s bundle attached to a letter dated April 5, 2017. This bundle included the original material plus updated evidence that I gave permission to be filed.
30. Professor Joffe’s report continues to assist in relation to these outstanding questions because it is a country report which is of wider use beyond this appeal. From paragraph 170 the Professor considered how the background material affects this appellant. He agreed that the material supported her account and he concluded as follows:

a. Return to her family would result in her being subjected to violence.
b. She would be unable to conceal her return because women are particularly vulnerable to aggression and investigation by the authorities and her situation would be treated as highly unusual and suspicious.
c. Her extended family is dispersed and is very likely to become aware of her location and they would be aware of the family issues.
d. It was most unlikely that the authorities would entertain seriously a complaint from a woman over domestic violence particularly where the woman’s father, as in this appeal, had been a senior figure in Chadian national guard and had contacts with senor government figures.
e. Chad is a male dominated society and physical abuse within the family is not regarded as an issue.
f. Foreign organisations are only concerned with providing aid for refugees from the civil wars in Sudan and for internally displaced persons along the eastern border of Chad with Sudan and not social issues inside Chad itself.
g. The appellant would be unable to relocate.

31. Dr Roy has provided a letter dated April 3, 2017 which indicates that the she suffers from depression and continues to have ongoing psychological input.

32. Mr Harrison quite properly accepted the appellant was a member of a particular social group so the only issues for me are internal relocation and sufficiency of protection.

33. I have considered all the evidence and taking into account the positive finding made in the First-tier Tribunal along with the evidence I have heard today I find the appellant’s account of events in both Koundoul and Guelengdeng to fit in with the country evidence.

34. It would be unreasonable to require the appellant to remain indoors all the time and of course she would now be returned as a single female with no male protector. According to Professor Joffe’s report this would place her at risk of further violence.

35. Based on the evidence given and earlier findings I am satisfied that there would not be a sufficiency of protection for the appellant and it would be both unreasonable and unduly harsh to require her to internally relocate in circumstances where she has been subjected to violence and no protection was offered, she would be returning as a single female with no protector and the only alternative was to remain in hiding.

DECISION

36. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I have remade the protection and article 3 appeals.

37. I allow the appellant’s appeal for protection on asylum grounds.

38. I allow the appellant’s appeal under article 3 ECHR.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I make no fee award as no fee was paid.

Signed: Dated:

Deputy Upper Tribunal Judge Alis