Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01079/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 27 January 2017
On 02 March 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

miss Winifred Izogie
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Brown, Counsel instructed by Greater Manchester Immigration Aid Unit
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Nigeria. She arrived in the UK in July 2004, but did not claim asylum until 3 October 2013. When that was refused on 22 December 2014 she appealed. In a decision sent on 16 May 2016 First-tier Tribunal (FtT) Judge Evans dismissed her appeal. She was granted permission to appeal and on 28 October 2016 Upper Tribunal Judge (UTJ) Chalkley set aside Judge Evans’ decision for error of law. The UTJ identified the error as failure to take into account the expert report of Kitan Olateru-Olagbegi, a legal officer at the Women’s Consortium of Nigeria since January 2002.
2. UTJ Chalkley relisted the case for rehearing before the UT “to enable the appellant to obtain a further expert report”, but Mr Brown confirmed no further report had been obtained. The appellant had, however, adduced a supplementary witness statement.
3. The appellant gave evidence, confirming as true and correct the contents of her witness statement of 2 February 2015 and the supplementary statement which she duly signed before me. She said that her parents had both died and she had no siblings. The 2 million naira she owed to ‘Uncle K’ for funding her travel to the UK was a debt she had not repaid. Since she had been in the UK she had not had contact with anyone in Nigeria; she had run away from her family home to escape a forced marriage. She feared that if she returned they would still try and force her to marry; she did not think the passage of time had altered that. She also feared that her daughter, A, would be subjected to FGM by family members in order to maintain family tradition. She knew A’s father, Odion, was in the UK but she did not know his immigration status although the Home Office had said he had EU residence status.
4. In reply to questions from Mr McVeety, the appellant said that ‘Uncle K’ had made her swear she would pay the money back and would not run away. She was afraid and did not feel able to get away, despite his threats, and she wanted to go to the UK. She stayed in a hotel for two months. He paid for the accommodation. He did not mistreat her. Uncle K travelled with her to the UK. The distance between her family home and Uncle K’s place in Ekpoma was 45–60 minutes by car. She did not think to seek protection of police in Nigeria.
5. The appellant said that once ‘Uncle K’ took her to London and dropped her off where Isaac lived, Isaac kept her in his flat for eighteen months. During that time she went out twice. On the day she escaped she overheard a conversation between Isaac and the three men he had brought to have sex with her talking about a police raid. Mr McVeety asked why, when she realised Isaac and the men had fled, she did not wait for the police. She said Isaac had told her she should not be in the country, so she was worried it would get her into trouble. After she left the house she just ran. She did not know the Nigerian people she met at the bus stop. They helped her by putting her up for three months. The woman had told her she should go to the police and tell them what had happened to her, but she had begged her not to, because “it would mean trouble for me”. She had no plan. She did not go out in those three months. People came to the house; she did not know how her helpers explained her presence.
6. Asked why she knew so little about Odion, the appellant said she knew he had a job in construction in different places in Luton but she did not know how much he earned or what his immigration status was and she did not know then that he was married. After three months Odion rented a flat for her in London. They began their relationship in 2007–2008 – she did not learn he was married until 2013. When she became pregnant it was because she wanted to start a family. She and Odion had three children. Odion paid all the bills.
7. Asked if she ever thought of trying to regularise her status, the appellant said no she did not as she was scared of the police and did not know the difference between them and other authorities. She had only decided to claim asylum in 2013 after Odion’s wife had accosted her in London and told her Odion was her husband and they had four children. This woman had threatened her. Because she was afraid this woman might harm her she agreed with Odion she should go to Liverpool. Subsequently women she met had put her in contact with a Women’s Support Group, who helped her. Odion did not contact her again and stopped supporting her.
8. Mr McVeety asked if she was ever suspicious of Odion. She said she was; he was always hiding things from her. He would stay with her three nights. She assumed the other nights he stayed at a place near his work.
9. In re-examination, the appellant said Odion had not mentioned having relatives and she had not asked. None of Odion’s friends ever came to visit. He worked Monday to Friday in Luton. When she was staying in Isaac’s flat, there were other flats in the house with a common area. She did not have access to that and had never seen any mail for Isaac. When she had been accosted by Odion’s wife, she was shocked and he did not deny that he had a wife and four children.
10. At this stage I informed the parties I wished to hear evidence from the appellant regarding the circumstances of her interview that had resulted in an NRM letter being sent to her in December 2013, to which reference had been made by UTJ Chalkley in paragraph 3 of his decision. Mr Brown submitted that it was unfair to ask the appellant about this at this stage as it had not been relied upon by the Home Office in the refusal decision. Having ascertained that the appellant had received the NRM letter dated 6 December 2013, I decided to proceed with some questions to her regarding it, making clear to Mr Brown that he had liberty to make submissions regarding fairness later. The appellant confirmed she had read and understood this letter and the reasons given by the Competent Authority for not considering her a victim of trafficking. I asked her if she had any comment on the mention in the letter (p.6) that the Competent Authority had concerns regarding her credibility because she was unable to provide any details about Isaac and the place in which she claims to have lived with him for seventeen months. She repeated her earlier evidence that she had not seen letters for him. Asked by me if she had any comment on the mention in this letter (same page) that Home Office records indicated that Odion was “in an un-married, childless relationship with a Polish national” and because of that had made a successful application for a residence permit, she said she did not know if that was the case.
Submissions
11. Mr McVeety submitted that even though the refusal decision did not refer to the NRM letter, it was part of the evidence which I was entitled to take account of. In his submission it was a starting point. As regards the appellant’s account, he urged me to reject it as not credible because of a number of unsatisfactory features. If ‘Uncle K’ had threatened to kill her it was strange she did not try and escape. It was implausible that Isaac and his friends should just run off leaving behind a potential victim of and witness to their crimes. It was implausible that the very first people she said she came across were fellow-Nigerians and that they were willing to take her in for three months even though they would know from her account that a dangerous gang of traffickers lived nearby. It was not credible they would not have gone to the police to protect their own safety. As regards the appellant’s relationship with Odion, considering they had three children together it was not credible she knew so little about him. If he worked in the construction business as a manual worker, how could he have supported two different accommodations and provided for a total of seven children with two different mothers.
12. As regards the appellant’s claim that her daughter, A, would face a real risk of being subjected to FGM, Mr McVeetie submitted that the background evidence indicated that FGM was family driven and a significant number of girls and women did not undergo it. There was no reason to think the appellant could not decide freely about it. Mr McVeety submitted that even if I were to find the appellant credible, I should dismiss her appeal because she would have a sufficiency of protection in her home area on return and if not, a viable internal relocation alternative in Nigeria outside Benin City.
13. As regards the expert report, the expert had not been asked to look at the appellant’s asylum interview or the refusal letter and the report was comparatively silent about the appellant’s situation in the UK. On the appellant’s account, those who trafficked her were just a few individuals with no organisation to speak of. In any event the appellant could relocate without any significant difficulties.
14. As regards the appellant’s children, Mr McVeetie submitted that they are Nigerian citizens and there was no significant evidence to suggest that they would face significant obstacles on return and they would be returning with their mother as a family unit. The appellant was familiar with Nigerian culture and language and had shown a great deal of resourcefulness whilst living in the UK.
15. Mr Brown submitted that the appellant had given a credible account of her experiences in Nigeria and in the UK. The evidence she had given was consistent and plausible. He found it troubling that the respondent should argue that the NRM letter was relevant when no supporting evidence had been produced as regards, for example, the Home Office records said to show that Odion held an EU residence document based on a childless relationship with an EEA national. Further the NRM letter was clearly based on very limited evidence. It was true the appellant had only been able to give limited information about Isaac, but that was not surprising given that she was effectively enslaved. With Odion she had in fact been able to provide considerable details including the addresses where she lived with Odion; indeed her answer to Q138 shows she produced proof of addresses at her asylum interview. The NRM letter was simply wrong about lack of detail. It had to be borne in mind that she had been held in captivity and repeatedly raped and she should not be expected to give precise details of the terrible experiences she had been through. The trauma she must have suffered had to be borne in mind; Mr McVeety might try and suggest that it was not plausible she would have failed to try and escape from Uncle K, but that wrongly ignored her real fear of the police. The same was true in relation to her escape from Isaac in the UK; it was not implausible that she would fear her lack of immigration status would get her into trouble and be used against her. Her prime concern was for her children, not to claim asylum. Given her experience of being trafficked and then living in a flat provided by Odion, the lateness of her asylum claim was not damaging. It was important not to repeat the error of the FtT Judge and ignore the expert report. The expert has genuine credentials. Mr Brown then provided numerous references to passages in the expert report highlighting the appellant’s vulnerability and the plausibility of her account.
16. Mr Brown submitted that if I decided the appellant was a victim of trafficking then I may need to direct the respondent to grant her leave. As regards her asylum and protection claim, I should bear in mind that I had to conduct a fact-sensitive enquiry that took account that on return to her home area of Benin City she would still face a real risk of forced marriage. It was clear from the particulars she gave of her family circumstances that she would face a life of destitution. She would also face a risk of further harm from ‘Uncle K’ and his trafficking network. The latest country guidance case noted that the elapse of time would not necessarily weaken the threat, there would not be secure support networks. The appellant could not live in the north. As a victim of trafficking she could clearly demonstrate that there was a Refugee Convention ground of particular social group, as a former victim of trafficking.
17. Mr Brown said he did not wish to make any separate submissions on Article 8. There was a lack of evidence about the circumstances of the appellant’s children, but there were strong grounds for considering that in light of their length of residence and nursery school integration in the UK it would be unreasonable to expect them to resettle in Nigeria. So I should allow the appeal on Article 8 grounds as well.
My Assessment
18. I have to assess the appellant’s evidence by applying a lower standard of proof. Given the nature of the appellant’s claim, I am also obliged by Joint Presidential Guidance No 2, 2010 entitled ‘Child, vulnerable adult and sensitive appellant guidance’ to treat her as a vulnerable witness. Paragraph 10.3 of this guidance on ‘Assessing Evidence’ reminds judges of certain factors that may affect a child/vulnerable person’s ability to give coherent evidence.
However, having considered the evidence as a whole and even making allowances for the appellant as a vulnerable witness, I do not find credible the account she has given of her experiences in Nigeria and in the UK. I would emphasise that the evidence I have taken into account includes the expert report: I shall deal with it in more detail later.
I agree with Mr Brown that the different accounts the appellant has given - to the Competent Authority, to the respondent, to the FtT Judge, in her witness statements and before me - are broadly consistent, but there are very significant shortcomings in them nevertheless.
As regards her account of fleeing from her family and getting help in Ekpoma from ‘Uncle K’, I count against her the lack of detail she has been able to furnish. She claims to have never known this man’s name or any other details about him despite being sent to meet him in Ekpoma and then being put up in a hotel by him for two or three months. Given that she was entrusting arrangement of her passage to the UK to this man, I do not consider that if her account were true, she would have been unable to give his name or other details.
19. Mr Brown has submitted that her account of this man forcing her to swear on oath to repay his loan and not to tell anyone was plausible, but that would be the case whether he was a trafficker or simply an agent making a loan. In any event, I do not think she established that she came to the UK in the circumstances she claims. I do not accept her explanation for not knowing Uncle K’s details.
20. As for the account she gave of her experiences in London, first being held captive by Isaac for seventeen months and then living in a flat provided by Odion at several addresses in London, I again find a significant lack of detail. She was not only unable to give the addresses but also could not give any details as regards the full name of Isaac. From her description of the two-bedroomed flat as part of a house with other occupants, I do not accept that during those seventeen months she would not have had the opportunity to learn the address of the flat or Isaac’s details.
21. I also find implausible her explanation for why she did not try and escape whilst in the flat by shouting out a window or banging on the door so others in the house could hear her. Her explanation was that she was afraid of the police, but the ordeal she described undergoing, repeated rape over a period of fourteen months, was one that she would have wanted to escape from before all else many times over. Another aspect of her account I found implausible concerns her account of her escape, not only because of the unlikelihood that Isaac and the other men would simply leave her in the flat to be found by the police, but also because of the degree of coincidence in her account of then being taken in by a Nigerian lady and her relative, Odion, without any apparent concern that on her account Isaac was living close by and if a trafficker could visit very serious harm upon them.
22. Equally unsatisfactory in my judgment is the lack of detail the appellant was able to give about key aspects of life together with Odion: his full name and particulars, his employers, his family etc. It is true, as Mr Brown highlighted, that she was able to give precise details of each of the several addresses she lived at whilst in a relationship with Odion, but that in my view only accentuates the lack of key details about Odion’s identity. Through her representatives she has had ample time to seek to obtain more particulars about Odion and the aunt, yet nothing was said about such steps. It must be borne in mind that there was no suggestion during this period that she was under any coercion. She went out; she had her children in hospital; she took her children to nursery and from her evidence she must have registered with a GP in London out of concern for her children’s health.
23. I also find implausible her account of being fully supported by Odion for some seven years in several different London addresses, when on her own account, he already had a wife and three or four children. Given her account that he worked in construction and would come home with boots on, there is nothing to suggest he had a level of job within the construction industry that would enable him to take on this range of financial commitments in London.
24. This feature of her account also increases my concern about the explanation she gave for her continued failure to go to the police or to the Home Office about either her claimed experiences of being trafficked or her own immigration status. If she feared going back to Nigeria for the reasons she has given, then she would surely have thought about claiming asylum earlier than she did. I do not accept, given the resourcefulness she has shown bringing up three children largely on her own, that she would not have learnt from friends and other Nigerians that she could claim asylum. On her own account several of those he encountered had significant discussions wither about her immigration situation; I do not accept that she would not have learnt from such persons that if her account was true she would have a very strong case for obtaining residence.
As regards the NRM letter, when giving reasons for her refusal decision the respondent did not rely in any particular on the appellant’s dealings with the NRM. It is however part of the evidence before me and I note that in response to a negative decision from the Competent Authority, there is no suggestion that the appellant or her representatives sought to challenge it.
25. I am unable to attach significant weight to the expert report insofar as it impacts on the issue of the appellant’s credibility. The expert makes no mention of having been shown the negative decision of the respondent or the Competent Authority and appears throughout to simply assume that the appellant’s narrative as given to the expert is true, accepting uncritically for example her account of having been circumcised of her family having insisted her daughter would be subjected to FGM also, of having no opportunity to reunite with her family, of being a single mother, of coming from a poor economic background.
I note the expert’s view that it is “common for victims of trafficking not to be able to identify all the members involved in a trafficking network as they may not be privy to information on every member of the trafficking gang involved in their trafficking transaction”, but I do not consider this sufficient to explain the appellant’s lack of knowledge of key particulars relating to Uncle K and Isaac. At 4.1.2 the expert suggests that perhaps one explanation for the appellant’s failure to give more information about her (claimed) traffickers is fear of reprisals, but the appellant did not herself give that as a reason. The expert also ventures an opinion on such matters as the plausibility of the appellant’s account of her mother being made to drink water from the corpse of her late husband. I have taken that into account but it does not alter my assessment that as regard the appellant’s credibility this report is of very limited value. It does not persuade me that when taken together with all the other evidence, that the appellant has given a credible account.
26. In light of my principal findings I do not consider that there is any trafficking dimension to this case.
27. Part of Mr Brown’s submissions has been that even considered simply as a single mother with three children, the appellant would still be at risk on return to Nigeria of destitution and other difficulties arising from her conversion to Christianity and family circumstances. He has drawn my attention not only to passages in the expert report but also to the latest Upper Tribunal country guidance case of HD (Trafficked women) Nigeria CG [2016] UKUT 00454 (IAC). The difficulty with such submission is that (save for home area and tribal origin) I am not able to find any aspect of the appellant’s account credible and this includes her claimed conversion to Christianity and her claim to have been forced to run away from her family The respondent appears to accept that her home area is Benin City and that her tribal background is Bini, but nothing else has been established or could be assumed to be accepted by me and these two limited particulars do not go anywhere near to persuading me that she has established either a well-founded fear of persecution, a real risk of suffering serious harm or of ill-treatment contrary to Article 3.
28. Mr Brown did not seek to make a separate submission on Article 8, but in light of my adverse credibility findings I cannot be satisfied that the appellant would not have access to family support in Nigeria. Her three children would be returning with her as a family unit. The evidence before me does not identify any factors that would suffice to indicate that it would be unreasonable to expert them to return to Nigeria with them.
29. For the above reasons:
As previously found, the FtT Judge materially erred in law and his decision is set aside.
The decision I remake is to dismiss the appellant’s appeal.

No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal