Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02156/2015

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 9th September 2016 On the 22nd September 2016

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MIRIAM [T]
(Anonymity Direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Dhanji (Counsel)
For the Respondent: Ms Fijiwala (Senior Home Office Presenting Officer)
DECISION AND REASONS
1. The is the Appellant's appeal against the decision of First-tier Tribunal Judge Borsada promulgated on the 4th September 2015, in which he refused the Appellant's appeal against the Respondent's decision to refuse his asylum and Human Rights claims.
2. The full reasons for the Judge's decision are set out within his judgement, and are a matter of record and are therefore not repeated in full here. However, in summary, the Appellant is a citizen of Uganda who was born on the 8th January 1956. The Appellant claims to have left Uganda in 1998 and claims that she went to Italy at that time with her then husband Mr [MC], as a result of people from the Lord's Resistance Army targeting her and her husband and having beaten them and threats being made to kill them, as a result of his political opinion, such that it was the Appellant's original case that she and her husband had to flee the country. It was the Appellant's case that she had successfully claimed asylum with her husband in Italy, but she had then travelled to the UK in 2001 and that she was no longer in a relationship with [MC]. The Appellant's case is that she had lived in the UK for over a decade and that she has no family remaining in Uganda. She claims to be fearful of returning because she would be a lone woman without any support such that she feared destitution. It was also her case that she is HIV positive, has mental health problems, suffers from forgetfulness, high blood pressure, arthritis and has difficulty standing and walking for long periods. It was said that she was particularly concerned about the lack of treatment she might receive for her HIV in Uganda.
3. Judge Borsada bore in mind that the Appellant had previously applied for leave to remain in the UK on the 4th December 2009, which application had been refused on the 22nd May 2013, and the appeal against that refusal was heard and dismissed by Designed First-tier Tribunal Judge Garratt on the 1st August 2013 and that it was thereafter on the 26th September 2014 that the Appellant claimed asylum. First-tier Tribunal Judge Borsada, in respect of the Appellant's credibility, found at [9] that even making some allowance for the Appellant's inability to answer questions in a precise way, giving her some degree of latitude he was still not satisfied the Appellant could be regarded as a witness of truth or that the core of her claim could be said to have remained intact "Such was the range and breadth of the areas of her evidence as outlined by the Respondent and set out at paragraph 6 above which indicted a lack of truthfulness."
4. First-tier Tribunal Judge Borsada at [10] went on to find that he did not accept the claims regarding the Appellant's fears of persecution in Uganda or that she had satisfied him that she was ever in a relationship with Mr [C] and had managed to successfully claim asylum in Italy with him. He went on to find that he was certainly not satisfied that she came to the UK either in the way claimed or on the date claimed and that Immigration Judge Garratt had already made findings at paragraph 33 of this decision in the way in which the Italian documentary evidence now included within the Appellant's bundle was rejected, as good evidence that the Appellant came to the UK in 2001. He found that he concurred with that finding and that whilst Mr [C] had provided a witness statement he had not been present at the hearing to give evidence and therefore he gave that statement little weight.
5. The Judge went on at [11] to state that as far as the death certificates relating to the Appellant's siblings were concerned he agreed with the Respondent that this was vague and unclear evidence provided by the Appellant and did not satisfy him that the Appellant no longer had any family remaining in Uganda and therefore he was not satisfied that she would be a lone female in Uganda upon her return. He said that he further agreed with the Respondent that the background evidence showed that lone females might be at risk of discrimination, but not persecution. He referred to the fact of there being a draft piece of legislation which would make it harder for HIV positive individuals to live within the community in Uganda but found that there was no evidence that such piece of legislation had become law and he was not satisfied that being HIV positive, per se, was sufficient to enable him to find the Appellant belongs to a Refugee Convention category group for this reason alone.
6. First-tier Tribunal Judge Borsada found that there was no reason to depart from the findings of Judge Garratt regarding the Appellant's Article 3 or Article 8 claim relating to her medical condition. The Judge further went on to find at [12] that she would not be at risk for a political reason upon return and would not be at risk as a lone vulnerable female. He went on to find that the humanitarian protection claims under Articles 2 and 3 of the ECHR also had not been established and that her Article 3 and 8 claims on medical grounds had previously been determined and he was not satisfied the Appellant had established that she had a family or private life in the UK for the purposes of Article 8. He therefore dismissed the Appellant's appeal. The Judge went on at the end of paragraph 12 to state that "In conclusion for the sake of clarity, I also confirm that I agree with all the submissions and points made by the Respondent as they appear in this decision and adopt them as my own. I therefore dismiss the appeal on all grounds.".
7. Within the original Grounds of Appeal it was argued that the Immigration Judge had failed to address the evidence of women as a particular social group and that the Judge had not made an findings as to the issues recorded at paragraph 7 of his determination and that his findings regarding whether or not the Appellant had surviving relatives in Uganda was not exhaustive of the analysis of risk and this would include access to HIV medicines and exposure to persecution because of HIV. It was argued further that the Judge was a witness to the Appellant's cognitive impairment or dysfunction and that this would need to be factored in, alongside her assess of risk upon return, given the fact that she is HIV and would be subject to stigmatisation.
8. Permission to appeal was initially refused by First-tier Tribunal Judge Caruthers who found that the Grounds of Appeal amounted to no more than disagreeing with the Judge's conclusions regarding the asylum and humanitarian rights claims and that on the evidence it was difficult to think that any First-tier Tribunal Judge would have concluded that the appeal should have succeeded on any basis.
9. Within the renewed Grounds of Appeal, it was argued that Judge Caruthers had failed to indicate why the complaints raised in the grounds were invalid and that Judge Borsada had to considered women as a social group in Uganda and consider the new evidence in the framework of Deevaseelan, but did not do so adequately. It was argued that the Home Office is proposing to return a 60-year-old woman on her own to Uganda a country where it is recognised that women constitute a particular social group and that the female Appellant is very clearly suffering from serious cognitive impairment and has difficulty nevertheless to organise her life in Uganda when at the same time she has the difficult task of accessing HIV medication in that country and that whereas each problem separately may be insufficient in terms of her solitude, cognitive impairment and HIV, the cumulative effect had to be considered and that even discounting solitude as unproven, there would still remain the combined effect of evident cognitive impairment and difficulty accessing adequate medication for HIV in what was said to be the context of disempowerment of women as a social group in Uganda.
10. Permission to appeal was granted by Upper Tribunal Judge McWilliam on the 4th December 2015, in which she found that it was arguable that the guidance in Deevaseelan is limited in its applicability in this appeal because the Appellant's previous appeal concerned Article 8 only. Her appeal before Judge Borsada was her first asylum appeal. She found that although the Judge was entitled to consider and attach weight to a failure to raise the same grounds at the first appeal, it was arguable that the Judge's decision in respect of Deevaseelan in the context of the asylum claim was inadequately reasoned.
11. Within the Respondent's Rule 24 Reply it is argued that the Judge directed himself appropriately and that the Judge had set down all of the submissions made by the parties and went on to set out his findings at paragraphs 9 and 10 of the determination. It is said that the Judge found that he could make allowances for the Appellant's inability to focus on questions, but rejected the claim that the Appellant had arrived in 2001 and the evidence previously considered by the Tribunal in 2013 regarding the Appellant's Italian status documents and that the Judge had accepted the submissions made by the Respondent on many issues on the core of the claim raised in submissions. It was said that the Judge rejected the fear of persecution claim in that he was not satisfied that the Appellant was ever in a relationship with [MC] or that the Appellant had previously successfully claimed asylum in Italy and the Judge had found that the death certificates provided were vague and unclear and found that he did not accept that the Appellant no longer had family in Uganda. It was argued that the determination was well reasoned and addressed the issues raised and that the Appellant was found not to be credible. It was argued that the grounds revealed no material error of law.
12. In his oral submissions before the Upper Tribunal, Mr Dhanji relied upon the Grounds of Appeal. He did seek to argue that Judge Borsada had not actually made findings in respect of whether or not there were findings from Judge Garratt's decision which were relevant to the asylum claim. He further sought to argue that the findings of the Judge regarding her credibility at paragraphs 9 and his findings at paragraph 10 were inadequately reasoned. He argued that the Appellant would be at a real risk of persecution on the grounds that she was HIV positive, a lone female and forgetful and the Judge should have taken account of all of those factors.
13. In her oral submissions Ms Fijiwala relied upon the Respondent's Rule 24 Reply. She argued that the only aspect of Immigration Judge Garratt's decision that had any impact upon the asylum claims at paragraph 10 of the decision of Judge Borsada, was the fact that Judge Garratt had rejected the Italian documentary evidence regarding the Appellant's status in Italy, which Judge Borsada agreed with. She argued that the First-tier Tribunal Judge had properly assessed the Appellant's credibility at paragraph 9 of the decision and that the Judge had assessed the death certificates which were not before Judge Garratt and had adopted the Respondent's submissions in respect of the death certificates. She said that the Judge had found that the Appellant would not be returning as a lone female and the evidence of the death certificate was not challenged as a ground of appeal. She argued that the Judge was entitled to rely upon the previous findings of Judge Garratt in respect of Article 3 and Article 8 on the medical issues and there was no documentation to show that the Appellant's health had deteriorated since 2013. She argued that there were no material errors in the determination of Judge Borsada.
14. Both legal representatives have agreed that if there was a material error, the case should be remitted back to the First-tier Tribunal for a rehearing before a different First-tier Tribunal Judge. I reserved my decision.
My Findings on Error of Law and Materiality
15. Although when considering the Appellant's credibility at [9] of the decision, First-tier Tribunal Judge Borsada said that he had taken into account the Appellant's obvious inability to focus on the questions that had been asked of her and her hesitancy in answering those questions, and he correctly said that limited weight could be given to the information from the local HIV charity about her forgetfulness when there was no live witness and the letter was not signed.
16. However, the Judge went on to state that "I have made some allowance for the Appellant's inability to answer questions in a precise way, but even in giving some degree of latitude, I was still not satisfied that the Appellant could be regarded as a witness of truth or that the core credibility of her claim could be said to have remained intact such was the range and breadth of the areas of her evidence as outlined by the Respondent and set out at paragraph 6 above which indicated a lack of truthfulness.". At paragraph 6 of the decision, which was sub-divided into 7 further sub-paragraphs, the Judge set out the submissions of the Respondent in respect of the appeal. The finding of the Judge that "such was the range and breadth of the areas of her evidence as outlined by the Respondent and set out at paragraph 6 above which indicated a lack of truthfulness" in my judgement is wholly unclear as to what the Judge actually has found regarding which aspects of the Appellant's account he considered to be untruthful and lacks any adequate reasoning in respect thereof It is unclear as to why the fact she had a range and breadth of areas in her evidence indicated a lack of truthfulness. The Judge's reasoning in this regard is lacking in clarity, and the reasons given for rejecting the Appellant's account as indicating a lack of truthfulness, are not adequately or sufficiently reasoned, to make it clear to the Appellant, why she has lost. Further, I find that this is a material error in terms of a failure to properly, adequately or sufficiently explain his reasoning in this regard.
17. Further, First-tier Tribunal Judge Borsada did not adequately or sufficiently explain why in paragraph 10 he did not accept the claim regarding the Appellant's fears of persecution in Uganda or why she had not satisfied him that she was ever in a relationship with Mr [C], nor why she had not satisfied him that she came to the UK either in the way claimed or on the date claimed. Although he noted that Immigration Judge Garratt had already made findings at paragraph 33 of his decision in which the Appellant's documentary evidence was rejected as good evidence the Appellant came to the UK in 2001, and he concurred with this, the First-tier Tribunal Judge has not considered or adequately explained the extent to which the findings of Designated First-tier Tribunal Judge Garratt were relevant to the Appellant's asylum claim in this regard, given that the decision of Judge Garratt was simply in respect of her Article 3 and Article 8 claim, and was not an asylum claim. But in any event, the Judge had failed to explain why he rejected her claim of persecution in Uganda and why he rejected her claim to have been involved in a relationship with Mr [C] and why he rejected her claim regarding the way she came into the UK. These in my judgement are material errors of law. I am not in a position to say that the decision reached would have been the same, irrespective of the errors made by the First-tier Tribunal Judge.
18. In my judgement, the failure of First-tier Tribunal Judge Borsada to sufficiently and adequately explain his reasoning for rejecting the Appellant's asylum claim, and also his failure to properly consider the case of Deevaseelan and that the extent to which the findings of Judge Garratt were relevant or not to the asylum claim, are material errors of law, such as to mean that the decision of First-tier Tribunal Judge Borsada should be set aside in its entirety and the matter remitted back to the First-tier Tribunal for reconsideration by any First-tier Tribunal Judge other than First-tier Tribunal Judge Borsada.
Notice of Decision
The decision of First-tier Tribunal Judge Borsada does contain material errors of law and is set aside.
The case is remitted back to the First-tier Tribunal for rehearing, before any First-tier Tribunal Judge other than First-tier Tribunal Judge Borsada.
Signed
RF McGinty
Deputy Upper Tribunal Judge McGinty Dated 17th September 2016