Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03538/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 15th September 2016
On 12th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

[a a]
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms E Rutherford (Counsel)
For the Respondent: Mrs H Aboni (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. For the avoidance of doubt, in this appeal, the reference to the Appellant is as it was in the Tribunal below, namely, [AA], and the reference to the Respondent is as it was in the Tribunal below, namely, the Respondent Secretary of State.
2. The Respondent Secretary of State appeals in this matter with permission against a decision and reasons statement of First-tier Tribunal Judge A. D. Baker, promulgated on 25th August 2015, following a hearing at Newport on 27th July 2015. In the determination, the judge allowed the appeal of [AA].
3. [AA] was represented by Ms E Rutherford of Counsel and the Respondent was represented by Mrs H Aboni, a Senior Home Office Presenting Officer.
4. The Appellant's present application is on account of fear that her daughter, who is also a Nigerian citizen like the Appellant, and who has lived in the United Kingdom since her birth and was then just 7 years old, would be forcibly subjected to FGM. However, as Judge Baker noted below, "Neither the Appellant nor her daughter, as identified in a medical report accompanying the application of February 2015, has as yet suffered that" (paragraph 9). The judge below had allowed the appeal on the basis that, although a previous immigration determination had found the Appellant to be wholly lacking in credibility with respect to her own claim, the present application was based upon the risk of FGM to her daughter and, "The first decision-maker was not concerned with issues in relation to FGM. The Appellant did not claim, then, fear of FGM for herself" (paragraph 18). Judge Baker still concluded that the Appellant herself lacked credibility with respect to her own claim that if she returned back to Nigeria she would be killed but these matters were "Distinct in my judgment from her claimed fear of FGM, specifically not only for herself but in respect of her daughter" (paragraph 28). The judge went on to say that, "As to FGM this is a distinct matter and it has arisen since that first decision" (paragraph 20). Given that the Appellant belonged to the Yoruba tribe where FGM was known to exist, on the basis of the expert report, the judge could not rule out the possibility that the Appellant's daughter would be subjected to a risk of FGM, and on this basis allowed the appeal.
5. At the hearing before me, Mrs H Aboni submitted that the judge's findings, based upon an approach where it was said that the Appellant's claim was one that was "distinct" from that of her daughter in the present application, was wholly unsustainable, because a credibility assessment had to be undertaken in a composite manner as a whole.
6. Mrs Aboni submitted that the Appellant herself has not been subjected to FGM, and this was a matter that could not be excluded from consideration, as an issue to going to the credibility of the claim now that the Appellant's daughter would be subject to FGM. Second, the Appellant nevertheless continued to maintain that she was also at risk of FGM, and this was part of her claim alongside that of her daughter, even though the Appellant had married, then divorced, and had a second son. Third, the judge failed to consider that the Appellant, who was opposed herself to FGM and had not undergone it, could have resisted the threat of FGM being visited upon her daughter, in circumstances where she was now divorced from her husband, and would not be returning to her husband's family. Finally, the Appellant made it clear in her witness statement (paragraph 72) that her husband himself is living in London having divorced the Appellant and would not be in a position to put on any pressure for his daughter to be circumcised.
7. However, even more importantly, the judge failed to consider that there was a real possibility of internal relocation given that this had been held in Austria in the case of Omerodo v Austria 8969/10 [2011] ECHR 1538, and so upheld by the European Court on the basis that internal relocation existed to avoid FGM. In that case also, the Appellant, a member of a tribe which conducted FGM, had avoided being subjected to it, being educated, and having employment, and also being unmarried, in precisely the same circumstances as the Appellant in this case. Mrs Aboni urged that I make a finding of an error of law and remake the decision to dismiss the appeal.
8. For her part, Ms Rutherford submitted that the judge had taken a careful view of the evidence before him. He had rejected some of the evidence but accepted other parts of it. The Appellant's own claim for risk of FGM is rejected but the claim of her daughter is allowed. The judge had found that the Appellant's former husband was a relatively influential person. At paragraph 51 the judge refers to the fact sensitive nature of the case. The Appellant was at risk of FGM if returned to her own area and she could not relocate. Moreover, the expert report did not accept everything either (at paragraph 42), such that the entire assessment was balanced and well considered. Ms Rutherford submitted that if I were to make a finding of an error of law, I should remit the matter back to the First-tier Tribunal Judge to be reconsidered again.
9. I am satisfied that the making of the decision by the judge did involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake it. My reasons are twofold.
10. First, it is well established that the assessment of credibility is a composite matter and the evidence has to be considered in the round before a final decision can be reached as to the credibility of an allegation or not. This is a case where the Appellant entered the UK and failed to make an asylum claim until she had been detained and denied entry on 19th May 2004. She claimed asylum in detention on 23rd May 2004. Her appeal was dismissed the first time around on 9th August 2004. The Appellant did not attend the hearing. There were no representations made on her behalf. The Appellant failed to make contact with the Home Office. She was living with her aunt in the UK. She then met the father of her two children but he also did not have legal status in the UK. The present claim, is now that of the risk of FGM, but the claim is made not just in relation to the Appellant's young daughter, but also in relation to the Appellant herself, even though the Appellant has to date not ever been at threat of FGM, has not undergone it, has married, then divorced, and had two children. The judge does refer to all these matters in the extensive determination. However, in the circumstances it is wrong to conclude that the claim in relation to the daughter is "distinct in my judgment from her claimed fear of FGM" (paragraph 28) because it avoids consideration of the Appellant's own ability to oppose such a risk should it exist.
11. Second, internal relocation should have been considered in the light of the judgment in Omerodo v Austria 8969/10 [2011] ECHR 1538 where it has been held that FGM can be avoided by moving to another part of the country, and given that the Appellant is educated, that was a possibility that plainly existed in this case.
12. I have remade the decision on the basis of the findings of the original judge, the evidence before her, and the submissions that I have heard today. I am dismissing this appeal for the following reasons. First, the Appellant's claim is not credible. She has not been subjected to FGM. She is separated from her husband. The submissions by Ms Rutherford that the child's father is in a relatively influential position overlooks the fact that the Appellant is divorced from him and that he lives in London. The claim has not been made previously and I find that it has been made now simply in order to bolster an already weak asylum claim.
13. I have had regard to the expert report but what it states is that, "Her fears that she will not be safe in any part of Nigeria may not be misplaced because she is an unskilled woman with only secondary education ..." (page A19). The suggestion that she "may" does not suggest that she "will". I conclude that she would not. The judge had concluded that, "She has worked previously and there is no reason to think she would not work" (paragraph 41).
14. In these circumstances, there is a real possibility of internal relocation. Indeed, the judge concluded that,
"The expert has failed to take into account that this Appellant has worked for two years on her own account, left her previous husband and her previous partner and has managed to live in the United Kingdom and now supporting herself and her two children as a failed asylum seeker of ten years. She is a resourceful woman as her history has demonstrated" (paragraph 42).
In these circumstances, I conclude that the Appellant's appeal must be dismissed.
Notice of Decision
15. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is dismissed.
16. No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 12th October 2016