Tribunal decisions

The decision

UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Appeal No. AA/02961/2015

THE IMMIGRATION ACTS

Heard at: Centre City Tower, Birmingham
Decision and Reasons Promulgated
On: 16 June 2016
On: 01 August 2016

Before

Upper Tribunal Judge Pitt

Between

IMB
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Mills, Senior Home Office Presenting Officer
For the Respondent: Ms Rutherford, Counsel, instructed by Wimbledon Solicitors

DECISION AND REASONS
1. This is an appeal against the decision promulgated on 8 June 2015 of First-tier Tribunal Judge Balloch which allowed the asylum and human rights appeals of IMB.
2. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising to IMB from the contents of her protection claim.
3. For the purposes of this decision I refer to the Secretary of State as the respondent and to IMB as the appellant, reflecting their positions before the First-tier Tribunal.
4. The appellant is a citizen of Sierra Leone and was born in 1994. She is now 22 years' old. Her brief immigration history is that she remained in Sierra Leone in 2005 with her paternal grandmother whilst her parents came to the UK to study. She came here on a visit visa in 8 March 2008 and was then granted leave as a dependent child of her parents. When the family's application for further leave was refused and dismissed by Immigration Judge Nightingale in a decision dated 22 March 2011, the family made an asylum claim which was refused and dismissed by Immigration Judge Pedro in a decision dated 15 December 2011. A further application for leave outside the Immigration Rules was refused in 2012.
5. The appellant then made applications in her own right in 2013 and 2014 for leave on the basis of human rights and family and private life, both being refused. She claimed asylum in her own right on 26 August 2014. The refusal on 6 February 2015 led to these proceedings.
6. The appellant's asylum claim is based on a risk of female genital mutilation (FGM). Her parents did not want her to undergo the procedure but the remainder of her family did, in particular her paternal grandmother and a paternal aunt. It was not disputed that she has not been forced to undergo this procedure although her mother had.
7. When allowing the protection claim, Judge Balloch made the following findings at [103] and [105]:
a. The appellant was not from the Mende tribe, FGM being highly prevalent amongst members of that tribe
b. The appellant was not at risk of FGM from close family members in Sierra Leone
c. The high level of FGM shown in the country evidence was sufficient to show a real risk on return
8. The respondent maintained that the finding of a general risk of FGM was not lawful. The First-tier Tribunal had not indicated why this would be so given that it had not been made out that the appellant was from the Mende tribe and that her family members would not attempt to force her to undergo FGM. The country guidance case of FB (Lone women - PSG - internal relocation - AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090 had been before the First-tier Tribunal and stated at [4] of the head note on the issue of avoiding the threat of FGM that:
"There is a significant migration to Freetown from rural areas. For migrants to Freetown, those with the ability to access support would face no risk. Such support mechanisms might include family or other connections"
9. Mr Mills submitted for the respondent that nothing in the more recent material allowed the judge to go beyond what was said in FB, the country expert report here being found to carry little weight and the NGO reports relied upon by the appellant showing some progress, albeit only a little.
10. In addition, the FTTJ proceeded on the materially mistaken basis that the appellant would have to return alone when there was nothing to prevent her family returning with her as none of them had any status in the UK. The First-tier Tribunal had, in fact, found that to be so at [113] when considering Article 8 ECHR but had failed to approach the asylum assessment on that basis.
11. For the appellant, Ms Rutherford relied on material in the appellant's bundle of country evidence, maintaining that it contained material that allowed the First-tier Tribunal to reach the finding it did on a general risk of FGM to a lone young woman.
12. My conclusion was that the respondent's challenge had merit. The finding that the appellant would be at risk was made on the basis that she would be returning alone when this was not correct and was material to the finding that the appellant would face FGM on return.
13. The respondent was also correct in maintaining that the new country evidence did not take the case beyond the guidance in FB which had not found a general risk of FGM to all women or even to young single women. The "28 Too Many" report from June 2014 at [8] of the appellant's bundle, for example, in the executive summary showed that the situation was a little better, certainly not worse, than when FB was decided, with the risk of coming down from 2008 and being lower (80%) in urban areas.
14. The Article 8 appeal was allowed as the First-tier Tribunal found at [121] and [122] that:
"121. ? It may therefore be very difficult for the Appellant to engage in a relationship/s, marriage, to contemplate having children or even to have real friendships with other women, without first undergoing FGM.
122. It may be difficult for her establish and maintain herself independently, given the general inferior position of women in Sierra Leone, which is recognised in case law including FB, particularly if she does not adhere to the norm of undergoing FGM."
15. This assessment is flawed, in my judgement, for a number of reasons. The First-tier Tribunal indicated at [85] and [86] that little weight attracted to the report of Ms Monekosso yet, without distinguishing these earlier comments appears to attach significant weight to the description in the report at page 16 concerning difficulty in marrying or having children if someone has not undergone FGM.
16. Further, notwithstanding the comment at [113] about the family returning with the appellant, this does not appear to feature in substance in the consideration at [121] and [122]. She can expect to return with her parents, both strongly opposed to FGM, who could play in her life and assisting her to function in society if there was hostility or discrimination. The finding at [122] also ignores the material fact of all members of the family being educated and how this would appear to place them at an advantage economically and the appellant being less likely to be unable to maintain herself or disadvantaged on return because of the "general inferior position of women in Sierra Leone".
17. There are additional errors in failing to conduct the Article 8 ECHR assessment without any reference to the provisions of the Immigration Rules, here paragraph 276ADE (vi) and the "very significant obstacles to reintegration" test. At [120] the First-tier Tribunal appears to place weight on the private life established in the UK without substantively applying s.117B (4) and (5) of the Nationality, Immigration and Asylum Act 2002, little weight attracting to the appellant's private life here as she has been in the UK precariously or unlawfully at all times. The decision also does not show how little weight attracting to any private life established in the UK is sufficient to outweigh the mandatory consideration of "maintenance of effective immigration controls is in the public interest" in line with subsection 117B (1).
18. I proceeded to re-make the appeal after hearing submissions from the parties. The content of the discussion above concerning the errors of law in the decision set out the salient features here which mean that the appellant cannot show that she is a refugee or qualifies for leave under Article 8 ECHR.
19. The country evidence does not support a general risk of FGM for all young single women. In addition, this appellant is not someone who has to return alone, as her parents can accompany her and there are other family members in Sierra Leone who have not been found to wish to force her to undergo FGM. A real risk of FGM on return has not been shown.
20. The appellant must show "very significant obstacles to reintegration" if she is to succeed on private life grounds under the Immigration Rules. She has lived in Sierra Leone most of her life. As above, she can return to Sierra Leone with her immediate family. She has retained other links there; see the undisturbed finding of Judge Balloch at [118]. When considered against the country evidence, her profile is not sufficient to show a risk of FGM. It is not sufficient, if she has family and friends around her, to show discrimination as regards marriage, having children or in other areas of her life amounting to "very significant obstacles". The assessment under paragraph 276ADE (vi) takes into account the factors the appellant relies upon, any consideration outside the Immigration Rules being additionally unable to succeed because of the provision of s.117B (4) and (5) as to little weight attracting to her private life. The Article 8 ECHR claim must also be dismissed.

DECISION
21. The decision of the First-tier Tribunal discloses an error on a point of law such that it is set aside to be re-made.
22. I re-make the appeal as dismissed on all grounds.

Signed: Date: 28 July 2016
Upper Tribunal Judge Pitt