Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01442/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 October 2016
On 15 November 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

L D K
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Amunwa, Counsel, instructed by Duncan Lewis & Co
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellant. Breach of this order can be punished as a contempt of court. I make this order, which follows a similar order made in the First-tier Tribunal, to prevent the possibility of publicity about this appeal creating a risk for the appellant that would not otherwise exist.
1. This is an appeal by a citizen of the Democratic Republic of Congo against a decision of the First-tier Tribunal dismissing her appeal against a decision of the respondent on 18 February 2014 refusing her claim for asylum. The appeal has previously been determined unsatisfactorily. I am concerned with the decision of First-tier Tribunal Judge A M Black promulgated on 20 June 2016. Permission to appeal was refused by the First-tier Tribunal but given by Upper Tribunal Judge Freeman on 4 October 2016. The material parts of his order are in the following terms:
"2. However, the renewed grounds present no fresh arguments on the asylum and human rights case dealt with by the permission judge, and I see no reasons to grant the application on that point.
3. The hearing judge has treated as abandoned the case put forward in the skeleton argument for the appellant, to the effect that she would be at real risk on return as a member of a 'particular social group' as a ''female failed asylum seeker' [FFAS], on the basis (see paragraphs 64-65) that it had not been pursued by counsel, either there or in oral argument, and was not supported by any background evidence.
4. While the judge was arguably wrong to treat that point as abandoned, without confirming that with counsel, it will be for the appellant to make a positive case before the Upper Tribunal that doing so involved a material error of law."
2. Mr Amunwa had settled the grounds of appeal to the First-tier Tribunal and the renewed grounds to the Upper Tribunal. It is clear that he wanted to argue two points. Ground 1 might be summarised fairly as "a failure to have regard to relevant evidence" which is how he framed the point in the grounds of appeal to the First-tier Tribunal and the second ground can be described as "a failure to resolve material conflicts of fact".
3. It is plain to me beyond all reasonable argument that Judge Freeman did not intend to give permission to argue anything other than the point summarised above which reflects the alleged failure to have regard to relevant evidence.
4. It is correct that Judge Freeman did not state in terms that he had given permission solely on that ground. Neither did he state, as judges often do, that although he had given detailed reasons for giving permission on a particular ground all grounds might be argued. I find that when paragraphs 2, 3 and 4 of Judge Freeman's reasons are read together the only sensible conclusions is that he limited permission to the point that he had identified and excluded permission on other points because, in his judgment, they had been dealt with adequately by the First-tier Tribunal Judge who had refused permission.
5. The key paragraph of Judge Black's decision is at 64 where she said:
"It is submitted in the appellant's counsel's skeleton argument that 'as a female failed asylum seeker ('FFAS'), the objective evidence shows that she forms part of a PSG which faces a real risk of persecution upon return ..." However counsel does not expand upon this in subsequent paragraphs in his skeleton argument; nor did he do so in his oral submissions. I have not been referred to any such "background evidence" to demonstrate the appellant could be considered a member of a PSG. I therefore find that this aspect of the appeal has been abandoned. In any event, I am unable to find that the appellant, a female failed asylum seeker, is a member of a particular social group."
6. I must respectfully disagree with Judge Black when she said that the point had been abandoned. I do not think it was developed in oral argument but the skeleton argument should be considered unless it is clear that the relevant party did not wish to rely upon it. Whilst I recognise the attraction of an argument that says that the very essence of abandoning something is doing nothing with it, abandonment is not a fair description of a point raised in a skeleton argument but not developed.
7. I appreciate that Judge Black did not content herself with saying that the point had been abandoned. She continued "In any event, I am unable to find that the appellant, as a failed asylum seeker is a member of a particular social group."
8. Mr Whitwell submitted that the judge had in fact considered the possibility of the appellant being at risk as a failed female asylum seeker and had rejected that argument.
9. I will consider that proposition against a review of the determination as a whole.
10. The appellant identified herself as a 31-year-old female citizen of the DRC. She claimed to be at risk because of things that had happened to her and her father who she described as a prominent figure in the MLC (Mouvement de Liberation du Congo). Much of the Decision and Reasons explains why Judge Black did not believe the appellant's evidence.
11. At paragraph 59 the judge refereed to the country guidance case of BM and Others (Returnees - criminal and non criminal) DRC (CG) [2015] 00293 (IAC) but decided that a national of the DRC who was returned after unsuccessfully seeking asylum in the United Kingdom would not, without more, risk persecution as a result.
12. This of course is a precise answer to the point raised by the appellant but does not show any consideration of the evidence on which she relied. The skeleton argument dated 20 November 2015 prepared for the First-tier Tribunal hearing, refers to a report from Freedom From Torture and also to other documents. The Freedom From Torture report was particularly relied upon. It is dated June 2014. I have read the whole report. The high-water mark from the appellant's perspective appears to be under the heading "Research Findings: Survivor Profile". It dealt with reports of women who had been tortured in the DRC after 2006. The report states:
"The majority of these women were targeted for detention as a result of their political profile, or that of a member of their family, as members or supporters of a legitimate political party or civil society organisation".
13. Mr Amunwa argued that if the majority were in trouble for these reasons then some were in trouble for other reasons. As a matter of logic this is unimpeachable. However, the subsequent sentence states:
"A smaller number of women were targeted due to an association with armed groups or with the Bundu Dia Kongo (BDK) political- religious movement."
14. Whilst the report regards travel from abroad to have been a factor in their detention either on arrival or soon afterwards, the only recorded example, as I read the report, of a person who had no previous detention or political activity was the wife of a person with a political profile. It should not be thought that I am in any way dismissing the importance of the report. It gives apparently very well researched details of women who have been hideously ill-treated. Whilst their being raped is probably the worst part of their ill-treatment, it is only one element in a catalogue of obnoxious, degrading, humiliating and painful acts of abuse. However there is nothing I can see in that report that supports a finding that women generally or this appellant in particular would be at risk simply by reason of being returned. It may well be that return combined with other factors does create a risk because the act of return tends to draw someone to the attention of the authorities but that is not what this case is about.
15. As the appellant plainly recognises, the Tribunal decided in the country guidance case of BM and Others (Returnees - criminal and non criminal) DRC (CG) [2015] 00293 (IAC) that there was no general risk in the event of return. I accept that that country guidance case was prompted by a view that was probably attributable properly to some loose talk, that all returnees to the DRC risk ill-treatment. I accept that the focus of the decision in BM is a little way from the point that this appellant was making, namely that she is a risk as a member of a particular social group. However, at the risk of being repetitive, I can find nothing in the background material that supports the proposition that women without a political profile are at risk simply by reason of being returned.
16. It follows therefore that I can see no way in which the appeal could have been allowed even bearing in mind the low standard of proof.
17. I find on reflection that the First-tier Tribunal Judge, did, technically, err in law because she thought, wrongly, that a particular strand of argument had been abandoned. The error is material in the strict sense that I can only remedy it by considering the evidence which I have done.
18. I therefore allow the appeal to the very limited extent that I set aside the decision of the First-tier Tribunal because the judge omitted to consider a particular point. I have considered the point and I resolve it against the appellant.
19. It follows that the appeal against the Secretary of State's decision is dismissed.
Notice of Decision
20. I set aside the First-tier Tribunal's decision because the Judge wrongly thought that a point had been abandoned, I consider the point and I dismiss the appeal against the Respondent's decision.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 11 November 2016