Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04739/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31st August 2016
On 07th September 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

RP
(aNONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Paramjorthy, Counsel, Mansfield Chambers
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against a decision of First-tier Tribunal Judge Andrew dated 3rd November 2015 to dismiss the appellant's claim for asylum, humanitarian protection and protection under the European Convention.
2. The background to the claim is that the appellant is a citizen of Sri Lanka born on 4th May 1993 and is now 22 years of age and with a child. The appellant arrived in the United Kingdom on 31st March 2008 as a minor and claimed asylum at the same day. She subsequently withdrew that claim but applied again on 28th January 2009. That application was refused but she was granted discretionary leave to remain outside the United Kingdom until 4th November 2010.
3. On 20th February 2013 she applied for further leave to remain.
4. The appellant's claim was that she would face discrimination as a single mother having a child outside wedlock and would be a single female and a mother with no support network in Sri Lanka. That claim was set out in her witness statement dated 6th May 2014 and specifically considered in the Secretary of State's refusal decision on 24th June 2014. By way of background the appellant's appeal was first heard by Judge Chohan on 12th August 2014 and he dismissed the case but that decision was set aside owing to an error of law and thus the matter was considered for a second time before First-tier Tribunal Andrew.
5. The challenge by the appellant to the decision of Judge Andrew rejecting her claim was threefold, namely
(i) that the judge failed to afford sufficient weight to the fact that the appellant was a minor when she entered the United Kingdom,
(ii) that the judge irrationally rejected the brother's account of his sister being sought after by the authorities in Sri Lanka and
(iii) that the judge engaged judicial knowledge of the exchange of garlands in the Hindu tradition, finding that the child was not born out of wedlock and that that was a clear material error of law.
Permission was refused on the first two grounds on renewal to the Upper Tribunal but granted in respect of whether the appellant would be regarded as a single mother on return to Sri Lanka, stating:
"Although the FtJ referred to the police report in which the appellant is described as being married, that is arguably not a decisive factor when one considers the report, and the First-tier Tribunal Judge stated that she 'used her judicial knowledge' of the means by which a marriage would be regarded as lawful in 'Hindu tradition'. It is not clear whether the FtJ was stating that the matter is one that a judge could take judicial notice of, or whether that is a matter that she personally knows about. In either case, an arguable error of law arises."
6. At the hearing before me Mr Paramjorthy confirmed that he had not represented the appellant at the First-tier Tribunal and was not certain as to the detail regarding the particular social group ground that was raised or what was placed before the First-tier Tribunal. The judge, however, had erred in assuming her personal knowledge or taking judicial notice in regards to the marriage.
7. Mr Kotas resisted the application and noted that the success or otherwise of the appeal rested on the credibility of the appellant. The judge had effectively rejected wholesale the appellant's claim. He also noted that the claim had shifted. At paragraph 9 of her witness statement she had claimed that she could not trace her family but that was patently not true because she had called her brother to be a witness at the hearing and he in turn confirmed that he had indeed visited her family on return.
8. The grounds of challenge do not condescend to particulars of the basis upon which the appellant would be at risk as a single mother as a member of a particular social group. No authority and minimal background evidence is referred to. I note the skeleton argument before the First-tier Tribunal on this issue was also light on particulars. It seems from the Tribunal file that submissions were made on this issue with reference to background material but it was not possible from the documents on the Tribunal's file to make any meaningful assessment as the material was so dated and sparse.
9. It is clear and I note that the skeleton argument advanced that the appellant believed she would face discrimination as a single mother having had a child out of wedlock and secondly that the appellant was a single lone female and a mother with no support network in Sri Lanka. As such the appellant could not possibly live in Sri Lanka on her own or support herself and her child and would face discrimination in accessing healthcare and education for her child or being able to work there.
10. The judge did make reference at paragraph 31 to judicial knowledge to know that simply exchanging garlands and entering into a marital relationship was sufficient for Hindu tradition to consider this type of marriage to be lawful and acceptable. That finding, however, came subsequent to her findings at paragraph 30 which I shall set out in full here.
"30. I do not find the claims of the Appellant that she was not married to the father of her child to be credible ones. In this regard I have noted the Police report which is at pages F41 to F43 of the Respondent's Bundle. There is clear reference there to the Appellant having been married eighteen months before (the report is not dated but refers to an incident of domestic violence on 17th April 2012). When I asked the Appellant about this she told me 'No I am not married here. I would not have told anyone this.' I asked her if she had told the Police she was married and she told me she did not marry legally. I asked her if she was married in a Temple and she replied 'we exchanged garlands'. I then asked if she was married to her husband in a Temple and she responded 'Yes we did'. She then went on to say in re-examination 'it is not a marriage: we exchanged garlands. We wanted satisfaction between my boyfriend and myself.' I asked her then what she meant and the Appellant replied 'it was not a complete marriage - it was not before a priest.' She went on to say that no-one was there only she and her boyfriend and that this had taken place at the Murgan Temple in East Ham when she was 17 in 2000."
11. It is clear that the judge relied not only on the police report in which she referred to the fact that she was married but also in response to a question by the judge when asking if she was married in the temple, stating "I then asked if she was married to her husband in a Temple and she responded 'Yes we did'." It was in re-examination that she claimed it was not a marriage.
12. It was open to the judge notwithstanding the fact that she took judicial notice of the garland exchange to take notice that the appellant had stated that she was married together with the police report. The judge was entitled to place reliance on this.
13. Moreover, as Mr Kotas submitted, the appellant's credibility was not accepted. The judge made allowance for the fact that the appellant was only 14 when she came to the UK and I note that permission was not granted on the ground asserted that the judge had not taken this into account. Prior to the finding on the marriage, the judge made credibility findings against the appellant at paragraph 19, and listed at paragraph 20 the concerns raised in the refusal letter albeit taking into account the appellant's rebuttal statement. The judge further disbelieved, and clearly found the appellant's credibility undermined by, the appellant's brother where he claimed he had been persecuted in Sri Lanka when in fact he was granted status as part of the Legacy Scheme and not as a refugee. In particular the judge noted that the appellant's brother had returned to Sri Lanka on two occasions, the first being for a marriage in 2014 when he stayed for a month and the second was this year when he stayed for two weeks. Particularly it was clear from his evidence as recorded by the judge at paragraph 23 that the appellant's brother stayed with his parents. Specifically the judge found a "clear inconsistency in the evidence of the appellant and her brother".
14. The judge also made a finding at paragraph 25 that the appellant's brother attempted to embellish the appellant's claim and despite having made no mention in his statement that the appellant's brother claimed that there were warrants out for his sister. The judge recorded: "However, he did not bring them back to the United Kingdom with him as he 'did not think they were of importance'." That left the judge unimpressed.
15. Overall, on the reading of the judge's decision the judge rejected wholesale the credibility of the appellant. Not only did he reject that the appellant had a child born out of wedlock because the judge made a finding that she was married but even if she were not she would not be returning to Sri Lanka as a single lone female and a mother with no support network. It is clear that the appellant's brother still supports the appellant and the family and had contact with her parents, who remain in Sri Lanka and with whom the brother holidayed.
16. As I pointed out at the hearing, even if those had not been the findings the objective material placed before the judge in relation to lone single women in Sri Lanka appeared to date from 2003 and the specific report which was referred to in the background material was "Sri Lanka: Whether widows, single women and single mothers are vulnerable to violence or any other ill-treatment in Colombo". That report, which is over twelve years old, identified that one in every five households was headed by a woman, that there may be discrimination and social stigma but in light of the paucity of evidence in relation to the treatment of lone single women on return, which the appellant, the judge found, was not, it is difficult to see how any error, with respect, could have been material. The judge may have been in error in referring or taking judicial notice in respect of the garlands but proceeded on the basis of findings based on the police report and the appellant's responses herself.
17. Crucially, the judge made credibility findings against the appellant which were open to her and which on a reading of the determination as a whole undermined her claim separate from any findings in respect of the garlands issue.
18. I find no error of law in the decision of the First-tier Tribunal Judge which is material to the outcome and the decision shall stand.
Notice of Decision
I find no error of law and the decision shall stand.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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 both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 6th September 2016

Upper Tribunal Judge Rimington

Tribunal Judge Rimington