The decision


Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04829/2013


Heard at Bradford
Date Sent
On 2nd December 2013
On 23rd December 2013
Prepared 20th December 2013


upper tribunal JUDGE roberts


Ms joj – first appellant
miss jOj- second appellant
Miss jAj –third appellant


For the Appellant: Mr Barry Clark of Barry Clark Solicitors
For the Respondent: Mrs R Pettersen, Home Office Presenting Officer

1. The Appellants are citizens of Nigeria. The first Appellant is Ms JOJ born 20th April 1979. The second and third Appellants are her infant daughters Miss JOJ born 7th January 2011 and Miss JAJ born 28th March 2012.
2. Throughout this determination I shall refer to the first Appellant as “the Appellant”.
3. The Appellant entered the United Kingdom on 24th September 2009 having obtained entry clearance as a Tier 4 (Student). Her leave was subsequently extended as a Post-graduate student until 19th April 2013. She came to the United Kingdom alone, but shortly after arrival, her husband Mr J, also a citizen of Nigeria followed her here as her dependant.
4. The Appellant gave birth to her two daughters in the UK. Mr J is the father of the children. The Appellant claimed asylum on behalf of herself and her daughters on 12th April 2013. The Respondent refused the applications and their appeals came before Judge Hemingway. In a determination promulgated on 27th June 2013, Judge Hemingway dismissed the Appellants’ appeals on asylum, Humanitarian Protection and human rights grounds.
Proceedings before the First-tier Tribunal
5. Judge Hemingway found no reason to doubt the credibility of the Appellant. The factual basis of the Appellant’s claim is contained in paragraphs 8 and 9 of his determination.
“The Appellant says that she is a member of the Igara tribe. She says that, generally speaking, members of that tribe believe female genital mutilation should be performed. However, she has not herself been subjected to FGM because her parents did not insist upon it. Her parents separated when she was three years old and she was subsequently looked after by her grandmother until the age of 11. She then lived with her father in Port Harcourt. She has also lived in Lagos. Her mother lives in Abuja and her father continues to reside in Port Harcourt. She obtained university qualifications and has worked as a document controller in Nigeria.
The first Appellant says that she married her husband, in Nigeria, in December of 2007. He is also from the Igara tribe but from a different faction or clan. Before they married they talked about FGM and he told her that his family believed in the practice. However, they agreed that they would not inform his family that she had not been subjected to FGM and she thought that if she had female children in the future then they would be able to work something out. Matters proceeded without difficulty until the birth of her two daughters in the UK. The first Appellant says that her husband’s father is deceased but that a family elder known as Uncle [P] had suggested, at times in strong terms, that the daughters should be brought back to Nigeria for the procedure to be carried out. The first Appellant says that she was and is entirely opposed to this but that her husband was persuaded it should happen. She says that Uncle [P] even sent airline tickets to them with a view to their returning to Nigeria as a family. However, she has refused to do so. She sought assistance from Social Services in the UK and they interviewed herself and her husband. Her husband remained of the view that FGM should be practiced and he, in fact, has now returned to Nigeria. The first Appellant has remained in the UK with the children and seeks asylum on the basis that if they have to return FGM will be forcibly carried out on her daughters. She says that she does not believe the authorities in Nigeria would afford protection nor does she believe that she could safely relocate to a different part of Nigeria away from her husband’s family who are from the Igara area”.
6. Having accepted the factual basis as set out above, the Judge considered the evidence before him and set out his consideration and findings of fact in paragraphs 25 to 34. His reasons for reaching his decision are set out in paragraphs 35 to 55. The Judge recorded that he had taken oral evidence from the Appellant, had considered the documentation which had been placed before him prior to the hearing and noted that it contained a social services assessment report.
7. The Judge was able to conclude that he found the Appellant to be a credible witness and accepted and made the following findings,
“I find that, whilst the Appellant’s husband’s family are keen to practice FGM, the first Appellant’s own family, including her parents, do not approve of the practice.
I find that the Appellant’s husband has a family elder known as Uncle Piper and that he is especially keen for the practice to be carried out on the second and third Appellants.
I find that the first Appellant’s marriage has now broken down as a result of his insistence upon FGM being practised.
I find that if the first Appellant were to return to Nigeria and take the second and third Appellants to the Igara region then there would be a real risk that FGM would be carried out upon the second and third Appellants against her wishes”.
8. Having carefully come to the above conclusions the Judge then went into the question of internal relocation.
9. He concluded at paragraphs 44 to 46 internal relocation would not be unduly harsh,
“I do, though, also have to consider whether requiring relocation would be unduly harsh. In this context, though, the first Appellant would not be without family support in the sense that she would be able to maintain contact with her mother and father and they would be able to visit her. It may be that they would be able to offer financial support bearing in mind her evidence that her mother has been able to afford to visit her, on three occasions, seemingly in the recent past, in the UK.
The first Appellant has obtained university qualifications in bio-chemistry and bio-medical science and has worked in Nigeria albeit not in those particular fields. She is clearly well educated. She said herself, in oral evidence, that she believed she would be able to find work. It is true she would have to arrange some form of childcare for her children but, when that was put to her, she did not say she would be unable to do that. It is very unlikely indeed that if she found someone in Lagos or another large city to look after the children that person would know who she was or would know her husband or his family. On the material before me I believe that she would be able to survive economically and provide a reasonable standard of living for herself and the two children.
There is no evidence that relocation would cause her particular hardship. I accept that she is genuinely fearful of return but I believe that to be a subjective rather than objective fear in the context of her being discovered if she relocates. I accept that, in the context of undue harshness, she will have a fear of being discovered which is genuine, although I find not objectively founded, but I believe that that fear will, over time, diminish as she resettles in Nigeria and finds that she and her children are not discovered”.
10. After giving full reasons above the Judge then went on to consider Article 8 ECHR and recorded the following paragraphs,
“I now turn to Article 8 of the ECHR.
I have stressed, above, that Mr Clark did not seek to seriously pursue any Article 8 points. However, for the sake of completeness, I will consider this.
The first Appellant has been in the UK since 2009. Both of her children were born here and have only known life in the UK. She has done some part-time work here as well as undergoing education here. These are matters which weigh in her favour. Following Razgar [2004] UKHL 27, I would conclude that all three Appellants have established a family life with each other and a private life in the UK which would be interfered with if they were required to go to Nigeria. I would also conclude, bearing in mind that an applicant is not required to surmount a particularly high hurdle at the second stage of the Razgar process, that Article 8 is engaged”.
11. The Appellants sought permission to appeal Judge Hemingway’s decision. The grounds seeking permission took issue with the Judge’s assessment of internal relocation. They claimed that the Judge had failed to take account of all the factors relevant to this issue.
12. Permission to appeal was initially refused by DJ Appleyard. The application was renewed before the Upper Tribunal on essentially the same grounds. Upper Tribunal Judge Craig granted permission in these terms;
“Judge Hemingway’s finding that the appellant could safely relocate to Lagos or another major city is predicated on his findings that the children’s father’s family would be unaware of their whereabouts, which finding is only sustainable if all contact or links with the father is severed. It is at least arguable that in failing to take into account that relocation would be unduly harsh, Judge Hemingway should have considered whether in order to be safe, it would be necessary for the first appellant never to tell her children any details about their father or his family, lest they would wish to have contact with him.
It is also arguable that Judge Hemingway does not give adequate reasons for his finding that the first appellant’s fears would diminish in time, and the submissions contained within paragraph 7 of the grounds are arguable.
Judge Hemingway did not take account of the fact that removal in these circumstances would inevitably require that all contact between the children and their father must be severed when considering the children’s best interests under Article 8 either, nor did he consider this factor when considering proportionality overall. This also was arguably an error of law”.
Thus the matter comes before me to decide whether the determination of Judge Hemingway contains an error of law such that the determination has to be set aside and the decision remade.
The Upper Tribunal Hearing
13. Mr Clark on behalf of the Appellants submitted that the Judge’s fact finding amounted to an error of law because internal relocation would be unsafe for the three Appellants.
14. He referred to and relied upon ground 7 of the grounds seeking permission. He said the issue of safety/reasonableness had to be considered and it would be unreasonable if an individual had to conceal some part of their identity and therefore had to live with the consequential fear of discovery. He claimed that the Appellants’ tribal identity would have to be hidden in Lagos.
15. He further advanced that should the Appellants live in Lagos all contact between the children and their father would cease because of the fear of discovery. He said that the Appellants maintained such contact at present by telephone.
16. Mrs Pettersen on behalf of the Respondent referred me to paragraph 43 of the Judge’s determination. It is quite clear from that, that the Judge had all matters in mind when coming to his decision.
17. So far as the best interests of the children are concerned, it is clear from the documentary evidence that their father is not someone with any particular interest in them. He has returned to his family in Nigeria and clearly places the family’s interests above that of his wife and children. The marriage is effectively over. The children are only aged 1 and 2 years old. They would be with their mother who is their primary carer. It would not be unduly harsh for them to relocate to Lagos.
18. I did ask the Appellant at this point to clarify the situation with her husband. She confirmed to me that she had severed contact with him because “he failed to protect us”.

Has the Judge Erred?
19. At paragraph 40 of his determination, the Judge fully and properly directed himself on the issues before him. The grounds seeking permission mount a challenge stating that the Judge erred in his assessment of internal relocation because his consideration was “wholly in economic terms”. I reject that submission. Paragraph 40 of the Judge’s determination clearly sets out what he had in mind. He reminds himself, “I must consider matters such as their ability to survive economically, the family links or any other form of safety net, cultural difficulty or whether there would be any conditions of severe hardship. A holistic consideration is required”.
20. The Judge then went on to consider that the Appellant would have the support of her parents and gave an illustrative example in respect of the Appellant’s mother coming to the United Kingdom to assist with the care of the children. He considered the financial position and the fact that the Appellant has university qualifications in bio-chemistry and bio-medical science. She is well-educated. She herself said in oral evidence she believed she would be able to find work. The Judge considered that there was no indication that any relatives of her husband would come across her in such a large city as Lagos. He took into account that the Appellant is young and healthy.
21. The second challenge put forward by Mr Clark concerned the claim that the Judge did not take into account that removal would inevitably require that all contact between the children and their father must be severed. This ought to have been factored in when considering the children’s best interests. It is clear on a full reading of paragraphs 45, 46 and 47 that the Judge did have this in mind. He refers throughout to the Appellant being part of a family unit which now (my emphasis) comprises her and her two daughters. The stark reality is that links between the children and their father have already been effectively severed – not through their fault, but because the Appellant’s husband has chosen to put his wider family before the interests of his immediate family. The Judge had before him the social services report and this outlines under the heading, “[J]’s Views (Dad). We explained to J that his wife had contacted CSC because she was worried about her daughters having to go through the FGM procedure when they return to Nigeria. John stated he could not understand why [J] had done this because she knows it is their culture. [J] has spoken to his family and he cannot break the family tradition. [J] advised they will be regarded as outcasts if they don’t return home and support the girls having the procedure. He further stated that the children will be cursed and there will be repercussions later in life as no family will want his daughters to marry into their families….[J] was adamant that they are already cursed because of his lies, [J] spoke about waking up with fresh cuts all over his body after he lied to his family back home. There are concerns regarding [J]’s ability to recognise that subjecting his daughters to the FGM is dangerous and abusive”.
22. The social services report also emphasises, “I have not observed the girls with their father, however J reports that he was a good father and the girls loved him. They have not shown much distress since he has returned to Nigeria, however, they have been looking at photographs of him”.
23. The decision of Judge Hemingway clearly recognises that it is in the best interests of the children to be with a caring parent and they will be with a caring parent even if required to relocate within Nigeria (paragraph 53).
24. The decision of Judge Hemingway is a thorough and careful one. He has given full reasons on the evidence before him for concluding that the Appellants had the option available to them of internal relocation within Nigeria. I am satisfied for the foregoing reasons that this determination discloses no error of law on the Judge’s part.

25. The determination of the First-tier Tribunal which was promulgated on 27th June 2013 discloses no error of law. These appeals are therefore dismissed.

Direction regarding anonymity – rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005
The appellants are granted anonymity throughout these proceedings, unless and until the Tribunal directs otherwise. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of Court proceedings.

Signature Dated

Judge of the Upper Tribunal