Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
AA/03994/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 24th January 2017
On: 23rd February 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

OA + 4
(anonymity direction made)
Appellant

And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Sadiq, Adam Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Nigeria born in 1980. Her dependents are her husband and three young children.

Anonymity Order

2. This appeal concerns a claim for international protection based on the risk of Female Genital Mutiliation (FGM) to the Appellant's infant daughters. Having had regard to the nature of the claim, the ages of the children involved, Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I make an order in the following terms:

"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Background and Matters in Issue

3. The Appellant entered the United Kingdom on the 19th April 2013 and claimed asylum approximately one week later. The basis of her claim was that she feared that her daughters would be forcibly subjected to FGM, and/or that she and her husband would be subjected to serious harm for their refusal to allow the procedure. The Appellant was particularly fearful of Rafiu, an uncle of her husband whom she described as a Muslim extremist who had repeatedly threatened her and her family. The Appellant said that she and her husband were Christians and that there was nowhere that they could safely relocate in Nigeria because there were no majority Christian areas.

4. The Respondent did not accept the claim was true, and further asserted that the Appellant and her husband could go and live somewhere else in Nigeria in order to avoid Rafiu if they were afraid of him.

5. When the matter came before the First-tier Tribunal (Judge MA Khan) the Appellant and her husband both gave live evidence. Having heard that testimony, and having regard to the written materials, the Tribunal dismissed the appeal. The Tribunal did not accept that the witnesses had been truthful, describing their evidence as vague, evasive, contradictory and exaggerated. Several reasons are given for these findings. For instance, the claim that the Appellant's mother-in-law had been kidnapped by Rafiu was rejected on the basis that the Appellant had failed to make any mention of this in either of her interviews or witness statement, introducing it for the first time in her oral evidence. At paragraph 49 the determination further reads "the appellant made his asylum claim 15 years after his entry to this country. I find that these are not the actions of a person seeking genuine international protection". Having found that the risk was not made out the Tribunal further found that the family could avail themselves of internal flight in Nigeria if necessary. The Appellant is an accountant by profession and her husband owned his own business. They would be able to re-establish themselves in Nigeria without difficulty.

6. The grounds of appeal are twofold. First, it is submitted that the risk assessment is incomplete. The Tribunal has failed to make findings on whether the children would be at risk from their maternal family. The Appellant has asserted from the outset that she herself had been circumcised, and a GP's letter to that effect had been submitted. There was therefore also a risk from her family, which the Tribunal had not addressed. Second, there was an error of fact in the determination in that the Appellant had not claimed asylum 15 years after she entered the country.

My Findings

7. Whilst Mr Sadiq accepted that the main thrust of the claim had been a fear of Rafiu, he submitted that a fear of the Appellant's family had also been articulated and that the Tribunal had erred in failing to deal with this point. It was accepted that the Appellant herself had been cut. At paragraph 8 of her witness statement [dated 21st July 2016] she said the following:

"I would like to be clear that the danger of forced circumcision is also a danger from my family?..it is a family tradition in both my family and my husband's family. Particularly in my family, the practice is as a result of a commitment to a tribal tradition. We are Yoruba. I know that it is only a matter of time before I would have had problems in relation to my own family over the circumcision of the children".

8. At Q64 of her asylum interview the Appellant explained that in her family it is tradition to cut girls and that if you don't have it "you are not worth to be in the midst of the ladies of the community". Mr Sadiq submitted that the risk assessment was therefore incomplete.

9. Whilst the passages cited by Mr Sadiq do plainly appear in the evidence, it is clear from the evidence overall that this case was not run before Judge Khan on the basis that there was any risk of harm from the Appellant's natal family. The Appellant's case is summarised at paragraphs 19-37 of the determination and no mention is made of any risk posed by her family. At 4.1 of the Screening Interview the Appellant was asked to summarise her claim. She is recorded as having replied:

"I came to the United Kingdom because my husband's family wants to circumcise my two children at the age of two years. I did not know this was their culture until I got married to him".

At Q2 of the substantive asylum interview she was asked who she feared in Nigeria, to which she replied:

"my husband's uncle, Rafiu".

At Q3 she was asked whether she feared anyone else in Nigeria, and she said:

"only my husband's uncle but he's not the only person there, there is like a group?a group of people who are with my husband's uncle but I don't really know who they are".

At Q35 she was asked whether she had any problems with her own family to which she replied:

"No they are OK"

10. These answers are not capable of supporting a credible case that there was any risk of harm emanating from the maternal family. The Appellant herself acknowledges this in the passage cited from her witness statement: "it is only a matter of time before I would have had problems in relation to my own family". Whilst the risk assessment is forward looking and need not be based on past persecution, the vague assertion as to possible "problems" in the future does not amount to a stated fear of serious harm. The Appellant herself describes her family as being "OK" on the issue. She denied fearing anyone else other than Rafiu and his friends. If there was a perceived risk that her family would enforce FGM on the girls over the wishes of their father then this would have been clearly articulated. It was not, and it follows that there was no error of law in Judge Khan failing to address the point. I would further note that it is impossible to see how any case based on that premise could have succeeded given the findings already made on internal flight. The Appellant describes her father as a very old man - nearly 90 - living on a farm [at Q34 asylum interview]. There is no evidence that he or her mother had ever raised the spectre of forced circumcision of their granddaughters before. The possibility that a 90 year old farmer would be able to track the Appellant and her family down anywhere in Nigeria is so remote as to be fanciful.

11. I am not satisfied that the Tribunal was under the impression that this Appellant had been in the country for 15 years before she claimed asylum. The actual dates of her arrival and claim are clearly set out at paragraph 1 of the decision. I find that the inclusion of paragraph 49 is most likely an error, a paragraph accidently left in the determination from a precedent decision. I say that since it evidently refers to a different, male, appellant. That is an unfortunate error but I cannot be satisfied that it played any part in the decision making of the Tribunal.

Decisions

12. The determination of the First-tier Tribunal does not contain an error of law.

13. There is an order for anonymity.

Upper Tribunal Judge Bruce
22nd February 2017