(Immigration and Asylum Chamber) Appeal Number: AA/05484/2015
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 25 February 2016
On 24 March 2016
DEPUTY JUDGE OF THE UPPER TRIBUNAL ZUCKER
(Anonymity Order made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Miss M Knorr, Counsel instructed by Southwark Law Centre
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 an anonymity order is made in respect of each of the Appellants. Unless the Upper Tribunal or other competent Court orders otherwise, no report of any of the proceedings herein or any form of publication thereof shall, directly or indirectly, identify any of the Appellants. This prohibition applies to, amongst others, all parties.
DECISION AND REASONS
1. The Appellants are citizens of Nigeria whose dates of birth are [ ] May 1972, [ ] February 1978, [ ] May 2003, [ ] May 2011 and [ ] July 2013 respectively. The First and Second Appellants are the married parents of the remaining Appellants. On 10 April 2015 decisions were made to refuse the Appellants' international protection and human rights claims brought principally on the basis of the risk contended for in respect of the Third and Fifth Appellants said to be at risk of female genital mutilation ("FGM") and the risk to the Fourth Appellant diagnosed with Cri-du-Chat who was said to be at risk of witchcraft accusations. The Appellants and each of them appealed. Their appeals were heard by Judge of the First-tier Tribunal Devittie sitting on 24 September 2015, at Taylor House. He dismissed the appeals on all grounds.
2. Not content with that decision, by Notice dated 13 November 2015 application was made for permission to appeal to the Upper Tribunal. On 8 December 2015 Judge of the First-tier Tribunal Chambers refused permission but upon a renewed application to the Upper Tribunal Upper Tribunal, dated 23 December 2015, Upper Tribunal Judge Rintoul, granted permission.
3. The entirety of the claim as advanced before the First-tier Tribunal was summarised in the skeleton argument which is set out by Judge Devittie in his Decision and Reasons and it is convenient to repeat it here:-
"The First Appellant was born in Ijigbo-Osun state in Nigeria. In 2002 he married the Second Appellant, whom he had known since 1983, and they lived in Lagos. The Third Appellant was born in Nigeria on 29 May 2003. The Appellants are of Yoruba ethnicity?
The First Appellant trained as a mechanic in Nigeria and after that he worked as a driver at Global Bank plc. On 19 February 2005 the First Appellant came to the UK on a visitor's visa and on 13 April 2008 the Second and Third Appellants joined him in the UK. The Third Appellant was four years old at the time. She has attended school in the UK since shortly after her arrival, first, at Deptford Park Nursery School, then from 2009, at Tidemill Primary School, and she is at St Matthew Academy. All of her friends are in the UK and she has very strong links with her church
On 7 May 2011 the Fourth Appellant was born. The Fourth Appellant has a diagnosis of Cri-du-Chat which has resulted in very significant learning and developmental difficulties. He has gross microcephaly (small head circumference leaving the cranial-facial distortions) and obvious neurological abnormalities impacting the way he walks. He has severe speech and language delay, and cannot speak. He also has severely delayed fine motor and visual skills. His disability also severely impacts his social skills. He has a tendency to lick and bite people and things and is violent towards other adults and children, hitting out at them, due to his frustration at his inability to express himself. He cannot do most physical things, such as feeding himself, brushing teeth, dressing and he is not toilet trained. He requires a very high level of educational support in order to access education and also requires constant supervision, due to the risk that he will harm other children and his complete lack of awareness of danger. He currently attends Watergate School for disabled children which is in Lewisham
On 11 July 2013 the Fifth Appellant was born. Prior to claiming asylum the family made a number of applications for leave to remain in the UK on human rights grounds, all of which were unsuccessful. On 6 August 2014 the Appellants claimed asylum. Their asylum claim was refused on 10 April 2015. The Appellants fear return to Nigeria because they believe the Fourth Appellant faces risks associated with his disability, including discrimination and witchcraft accusations and, the Third and Fifth Appellants a risk of FGM. The First Appellant also maintains that it would breach Articles 8 and 3 if he and the children are removed to Nigeria. The Appellants rely on the expert reports of Dr King, Gary Foxcroft (Expert on Witchcraft in Nigeria) and Peter Horrocks (Independent Social Worker)."
4. The First and Second Appellants gave evidence. Judge Devittie rejected their claims placing significant weight upon the fact that a number of applications to regularise their stay in the United Kingdom, had been made by the First and Second Appellants; the First Appellant having first arrived in the United Kingdom on a visit visa in 2004. Judge Devittie was of the view that if the claimed risk to the daughters of FGM and to the Fourth Appellant of accusations of witchcraft were genuine then reliance would have been placed upon the same at an earlier stage.
5. With regard to the risk of FGM, notwithstanding the expert evidence and background material pointing to FGM being practised amongst the Yoruba's, of which the Appellants were members, Judge Devittie noted that the First and Second Appellants had "strong Christian values". Given the educational and professional backgrounds of the First and Second Appellants, whom the judge categorised as "Middle class", the judge came to the view that the First and Second Appellants would protect their daughters from FGM in Nigeria. He found the "overwhelming likelihood" was that the First and Second Appellants would return to Lagos where they would be able to seek work and where they had retained family and social ties.
6. Turning to the Fourth Appellant, Judge Devitte found the immigration history of the First and Second Appellants relevant. He was of the view that, "The present application is, without question, the last step in a well calculated plan by the First Appellant, initiated in 2005, to settle his family in the United Kingdom." He recognised however the special needs relating to the Fourth Appellant but discounted the evidence of the social worker on the basis that much of the information had been furnished by the First and Second Appellants whose credibility he, Judge Devitte, had cause to question. He recognised the strong belief in Nigeria in witchcraft and accepted that there was a lower threshold to be met when assessing whether a minor, with a disability, might be exposed to cruel and degrading treatment but came to the view that insofar as there was any risk, the First and Second Appellants would be able to obviate it. He referred to the "balance of power" being with the First and Second Appellants both in respect of any accusation of witchcraft and risk of FGM. However he made a very significant finding at paragraph 20 of his Decision and Reasons which reads as follows:
"It is beyond question in my view, that the Fourth Appellant would suffer societal discrimination, and face other real difficulties in that he would not be able to access the same level of quality of care and support that he enjoys in the United Kingdom. I am unable however, to find that he would be subjected to cruel and degrading punishment at a level that would attain the threshold of persecution under the Refugee Convention."
At paragraph 29 he went on to say:
"I accept, that in the light of the Fourth Appellant's disability, he would face a level of societal discrimination, and the perception that he has evil spirits. I have however found that the treatment to which he would be exposed, would not attain the level of persecution for the purposes of the convention. I accept, that he may well not be able to participate fully in community life, because of perceptions in Nigeria. I also accept that the other members of the family may also suffer a degree of societal discrimination."
7. As to the risk of FGM that was simply found not to be well founded.
8. In the renewed application for permission to appeal to this Tribunal, the grounds submit that fundamental to the appeal was that Judge Devittie had found that the Fourth Appellant would be perceived as having evil spirits but then failed to engage with the evidence. Had he done so, it was submitted, he would have found that the evidence demonstrated that the family, and the Fourth Appellant in particular, would face persecution. It was submitted that Judge Devittie had overlooked medical evidence in the Respondent's bundle and, the finding that the parents would be able to protect their children, and in particular the Fourth Appellant, went against the weight of the evidence, and in particular the expert evidence.
9. The grounds go on to submit that Judge Devittie erred in finding that the application now under appeal was the first time that the First Appellant had raised any concern about risk to the Fourth Appellant. Judge Devittie referred to a previous application made on 31 January 2013 in which the risk of a violation of Article 3 might have been raised. However there were three submissions made with respect to that. Firstly The Appellants were not aware of an application made on that date (Neither of the representatives nor I were able to find any evidence of an application on that date). There was, however, evidence of an application made on 3 January 2014, in which at paragraph 14 mention was made of the Fourth Appellant's medical conditions with a follow up letter, dated 14 February 2014. However it would not have been reasonable to make application in January 2013 on the basis of any medical condition affecting the Fourth condition until there was a diagnosis and that was not until August 2013. Further the letters of 3 January 2014 and 14 February 2014 did mention the medical condition but the condition was progressive and it was only when the condition had progressed that it could be said that there was the significant risk of the witchcraft allegations contended for.
10. The principle submission however was that in accepting the medical condition of the Fourth Appellant it was necessary to engage more fully with the expert evidence. Before me the ground crystallised to the submission that having recognised that the Fourth Appellant had a disability and having found as a fact that there would be societal discrimination it was necessary for the judge to make findings as to the nature of that discrimination in order properly to assess whether it reached the threshold of persecutory conduct especially given that the Fourth Appellant was a child. Still further having found that there would be societal discrimination it was submitted that it was not open to the judge to find that the First and Second Appellants would be able to obviate the risks either to the Fourth Appellant or indeed to the Third and Fifth Appellants because societal pressure to undergo FGM coming as it would from friends and family would be irresistible in the context of Nigeria.
11. In granting permission Judge Rintoul said:
"It is arguable that, as the renewed grounds aver, First-tier Tribunal Judge Devittie erred in concluding [19(ii)] that there was a lack of independent medical evidence and that the parents had exaggerated the Fourth Appellant's disability. It is also arguable that the judge did not engage properly with the evidence as to the risks to the child if he were as the judge accepts  evil spirits."
Was there an error of Law?
12. Ms Knorr began by focusing quite properly on the finding of Judge Devittie at paragraph 29 in which he had accepted the Fourth Appellant's disability and that he would face societal discrimination together with the perception that he was possessed by evil spirits. Ms Knorr submitted that in finding, as he did, that the treatment to which the Fourth Appellant would be exposed would not attain the level of persecution for the purposes of the convention, the Judge's reasoning was inadequate. Still further it was necessary then to consider the impact on the rest of the immediate family i.e. all the Appellants.
13. For the Respondent Mr Clarke began his submissions by saying that it was open to the Judge to find that the reaction which the Fourth Appellant would face in Nigeria would be discriminatory rather than persecutory. However as Ms Knorr developed her submissions, he very properly conceded that Judge Devittie had not adequately engaged with the evidence relating to the witchcraft accusations that might be levelled at the Fourth Appellant and the impact on the other family members.
14. There was considerable evidence before Judge Devittie relating to the Fourth Appellant. The nursery manager and key worker, Carol Best at the '999 Club' where the Fourth Appellant had been attending since October 2014 describes the Fourth Appellant as, "unable to communicate verbally with only three recognisable words which were, 'Mama' 'Hallelujah' and 'Yum Yum.'" He was described also as unable to interact with his peers with no awareness of social norms. His only way of interaction was to hit out, bite or grab. He is in need of constant supervision and support and left unattended with books, would mouth or chew them or tear them. He would also throw objects when he had finished with them without regard to where they would land or whom they might hit. He showed no awareness of toilet training and no awareness of danger. He is described as unsteady on his feet and prone to falling over.
15. Consistent with the submission that there was only a diagnosis of the Fourth Appellant's condition in August 2013 is a letter written by Dr Mina Ryten, of Guy's and St Thomas' Hospital, and it also seems clear from that letter that the condition was progressive because there was some suggestion, when the letter was written on 30 August 2013, that there might come a time when [EA(2)] might be able to start a family though there was significant caution associated with the observations. A letter of Dr Ryten of the same date to Dr Kumar at University Hospital Lewisham speaks of challenging behaviour and frequent tantrums.
16. There was a developmental assessment carried out in August 2013 which demonstrated that at that time though the Fourth Appellant was 2 years and three months old, he had manipulative skills only of a ten month year old. Visual skills were at eight months, hearing and language at twelve, as were speech and language, and interactive social skills, with self care social skills at fifteen months, but cognitive skills at only eight.
17. By early 2014 there was some concern about the Fourth Appellant's hearing. There is a speech and language therapy summary report dated 14 April 2014. It is of note that the behaviour of the Fourth Appellant was consistent with what the First and Second Appellants described and in clinic it was noted that the Fourth Appellant required a high level of adult support to engage in functional play with toys and that he tended to throw or lick the toys. The conclusions were that during play he required full adult support; understanding of language was significantly delayed and he presented with significantly delayed expressive language skills.
18. By 30 September 2014 it was noted that the Fourth Appellant tended to be hyperactive with behaviour difficult to manage and it was not possible to take him to the playgroup or church because he would constantly run around, attack other children and scream excessively. That finding was simply reportage of what the Fourth Appellant's mother had told Dr Tsampanaki, Speciality Doctor in Community Paediatrics but the examination of the doctor showed the Fourth Appellant to be very noisy during play with short attention span and some interest in toys but he would mostly throw them around. He was observed to lick a boot persistently so that the medical evidence appears consistent with the description given by the Second Appellant. The summary conclusion in that letter of 30 September 2014 describes the Fourth Appellant as only having achieved a developmental age of 12-18 months when was 3 years of age.
19. There were two reports from Gary Foxcroft, Executive Director, Witchcraft and Human Rights Information Network dated 13 January 2015 and 22 September 2015 respectively. His qualification as an expert was not in issue. One of the questions asked of Mr Foxcroft was how the Fourth Appellant was likely to be perceived and treated by the community on relocation to Nigeria. Mr Foxcroft reviewed the medical evidence and observed that the Fourth Appellant's disabilities would be obvious to anyone with whom he came into contact.
20. Mr Foxcroft, in his first report, states that Nigerian children with disabilities are particularly at risk of being accused of witchcraft. He states that the belief that disability is a sign of witchcraft originates from the supernatural explanation of life events, behaviour and misfortunes that most Nigerians believe in. He goes on to speak of a number of character traits that are commonly described as linked to witchcraft and these are:
Challenges in communication;
Sickness and medical conditions;
Having bad dreams;
Not doing what is asked of them by parents - This often known as being "Stubborn."
There is a societal aspect and reference is made to families that are poor or socially marginalised which was not, I observe, the finding made in respect to the First and Second Appellants.
21. I note from the first report at paragraph 18 that children with disabilities such as Cri-du-Chat syndrome are considered to be particularly at risk of witchcraft accusations given the mental and physical disabilities.
22. At paragraph 19 Mr Foxcroft refers to the UN Special Representative to the Secretary General on Violence Against Children - Marto Santos who issued a statement on witchcraft at the UN Human Rights Council in March 2014. In her statement she said:
"The growing reality of children being accused of witchcraft reveals a serious pattern of discrimination, social exclusion, violence, abandonment and sometimes even murder of innocent children. Vulnerable children, such as those with disabilities? are often the target of witchcraft accusations. Beyond branding a child as a witch, in itself a form of psychological violence these accusations often lead to physical attacks against these children and other extreme human rights violations."
I pause to observe that Judge Devittie does not appear to have considered whether the very fact of being accused of being a witch might itself amount to persecutory conduct in the form of psychological violence, nor how others would behave towards the Fourth Appellant and his family by which I mean being violent or shunning them, given the disabilities. According to the same report, Ms Santos went on to say that overall,
"To be labelled a witch ? is tantamount to being declared liable to be killed with impunity."
Mr Foxcroft went on at paragraph 25 of his report to consider the risk to all Appellants and opined that they would be at risk of physical attack, verbal attack, attempts to ostracise them from the community where they were to live, together with public disgrace.
23. Mr Foxcroft then comments upon the First Appellant's witness statement which he describes as, "The most lucid and detailed witness report that I have seen provided on the role of the church and community in fuelling accusations of witchcraft." Judges are constantly reminded in this jurisdiction of the need to look to the societal context of particular witnesses and Mr Foxcroft as an expert states that: "Many Nigerians would not wish to talk openly" of the matters which are relevant in this appeal.
24. Another aspect of this appeal which was not apparently touched upon by Judge Devittie is that, according to Mr Foxcroft the First and Second Appellants would be likely to be seen as being cursed themselves by evil spirits having given birth to such a disabled child.
25. 95% of people with whom Mr Foxcroft worked in Nigeria hold a belief in witchcraft and in his opinion there is no link between levels of educational attainment and depth of belief.
26. Looking to the degree of protection that would be offered by the state in Nigeria, Mr Foxcroft says that it would be little or ineffective and he gives his reasons.
27. In his second report Mr Foxcroft speaks of the facilities available to children such as the Fourth Appellant and to the fact that in 2008 it was made unlawful to accuse anyone of witchcraft. However, the law is largely ignored. Significantly in the further report Mr Foxcroft states:
"Children who suffer witchcraft stigmatisation face discrimination on numerous levels as well as suffering from significant physical, emotional, psychological and spiritual harm. Witchcraft stigmatisation therefore has far reaching negative implications for the enjoyment of a range of children's rights, including the right to be free from abuse and neglect, from torture and inhuman and degrading treatment of the right to education and the right to family life."
28. Still further in Mr Foxcroft's opinion without family support it would be very difficult for the First and Second Appellants to find safe and secure accommodation because most landlords would not wish to house persons believed to be witches.
29. I have no difficulty whatsoever in finding that the finding of Judge Devittie lacks adequate reasoning. It is important to bear in mind that the Fourth Appellant is a young child with a very significant disability who clearly will face many challenges without the allegation of witchcraft. However, where Judge Devittie erred in my judgment was that having found that the Fourth Appellant would face a level of societal discrimination and the perception that he had evil spirits it was necessary given the evidence available to make findings as to how that societal discrimination would manifest itself. The failure to do so goes to the very core of the judgment and in my view it simply cannot stand.
The Third and Fifth Appellants
30. The case advanced on behalf of the Third and Fifth Appellants was that they would risk FGM were they to be returned. The report relied upon in support of that contention was the report of Dr King whose report is dated 7 September 2015. According to the report, FGM is practised across the majority of ethnic groups in Nigeria. The Yoruba culture is the most prevalent group engaged in FGM. I note that the Appellants are Yoruba. Although Mr Clarke was for submitting that there was no sufficient evidence that there would be any risk in Lagos, Ms Knorr pointed out that Lagos is in fact in Yoruba land.
31. I note however that it is said that the practice is on the decline among the middle classes and the more educated with every family being different and "the balance of power" in an extended family will be greatly dependant on the financial status of individuals. For the Appellants' family it was said that the high prevalence of FGM in their ethnic group put them at risk but I note also that the expert report was premised on the First and Second Appellants not being middle class.
32. What concerns me with respect to the Third and Fifth Appellants was the extent to which Judge Devittie appears to have focused on the delay in making a claim based upon these risks in circumstances in which the delay, certainly so far as the Fourth Appellant was concerned is explicable by a lack of diagnosis and the progressive nature of the condition.
33. Of concern was identifying the evidential basis for the finding that the First and Second Appellants were, "middle class." The evidence of Dr King noted that the First Appellant was currently unemployed but in Nigeria was a mechanic who in Nigeria would be hired through networks and through an apprentice system. A mechanic would be a low income position.
34. One is driven to the view that there is a real risk that the judge was so concerned by the apparent delay in the First and Second Appellants making reference to both FGM and more particularly witchcraft that this overshadowed and coloured all of the findings.
35. I am satisfied that there were material errors of law which with respect to the Fourth Appellant can be summarised by a failure to consider and make findings which flow from the finding of societal discrimination with an overemphasis on the apparent delay of the First and Second Appellants in making a claim based upon the Fourth Appellant's disability. With respect to FGM the finding that the First and Second Appellants were middle class was based upon insufficient evidence for that finding and an overemphasis on delay.
36. The submission by Mr Clarke that with respect to FGM there was nothing material in any errors because there was no sufficient evidence of the practice in Lagos was one which he recognised he could not maintain given Lagos was in Yorubaland.
Remake or Remit?
37. I have no hesitation whatsoever in finding that it is appropriate to remake the decision with respect to the witchcraft allegations. The evidence relating to the Fourth Appellant's condition is clear, I need not repeat it. In my judgment the effect of the "Societal discrimination" accepted by Judge Devittie goes much further and points to a real risk of the Fourth Appellant being a virtual prisoner if he is to be protected from the wider society. I am reinforced in my view by the supporting evidence of Dr King who at 7.2. of her report states:
"I can strongly agree with [AA] and with the professional opinion of Gary Foxcroft that [EA(2)]'s condition will be associated with witchcraft. In particular I can add that the Yoruba term for someone with a mental illness or disorder or a learning disability of any kind of behavioural abnormality is "Were."
"Were" in most cases are believed to have been attacked by spirits (Jegede.2005). In these cases a spiritual curse is likely to be demanded. This means "Special Prayers" can include incantations, fasting, and/or beatings in Nigeria and the Anglophone area of Cameroon. I have seen young people with mental health or learning disabilities chained, cut "fasted" (temporarily deprived of food) and as part of being prayed for. People with abnormal social behaviour are often associated with powers such as speaking with the dead or indeed being dead spirits revisiting families in a malevolent manner.
There is a vast amount of negative stigma and spiritual associations around the presentation of symptoms of mental health problems or mental disability across the country. Poor mental health or mental disability is often seen as a form of spiritual attack and treated by exorcism that could involve physical abuse such as chaining, beating, acid burning or starving as well as prayer?"
38. The real risks of the Fourth Appellant is so great that in my judgment the types of reaction to which the Fourth Appellant is at risk of being exposed can only be described as persecutory. I do not find contrary to Judge Devittie that the "Balance of power" that the First and Second Appellants may hold would be sufficient to obviate the risk. It may well be that the First and Second Appellants would not behave towards their child in any of the ways described as posing a risk by the experts but that ignores the behaviour of others. I bear in mind also the importance of the church to this family evidenced by the letter from the Olivet Baptist Church. The real risk to the Fourth Appellant is that he would have to be left at home because were he to go to church he would either on his journey or whilst there in Nigeria run the risk of persecutory conduct by others.
39. My findings with respect to the Fourth Appellant are not the end of the matter. It is abundantly clear to me from the evidence that the whole of the immediate family would be affected by the allegations of witchcraft to such an extent that they too would be at a real risk of persecutory conduct.
40. Given my findings, any error of law with respect to the FGM concerns relating to the Third and Fifth Appellants are not material because I find that they are entitled to international protection with the rest of the family. Further because of the general policy to keep families together where there is a refugee within the immediate family none of the family should be removed and also because of the Article 3 and 8 ECHR rights of the family members none of the Appellants can lawfully be returned to Nigeria.
41. As to article 8, the Fourth Appellant clearly needs both of his parents and there is clearly family life between all of the Appellants. The fact that I have found the Fourth Appellant a refugee means that applying the five stage test in Razgar, the proportionality assessment favours the First and Second Appellants without more. Given the ages of the Third and Fifth Appellants they too, on a proportionality assessment are entitled on any view to be with their parents, their interests are a primary consideration and although I would be obliged in considering Section 117B in respect of all of the family members, the public interest in a case such as this clearly does not require the removal of any of the members of the family.
42. I should say that, for the avoidance of doubt that but for my ability to remake the decision with respect to witchcraft allegation, I would have remitted the issue with respect to FGM for rehearing because in my judgment it cannot so easily be said, even to the lower standard, that the Third and Fifth Appellants would be exposed to FGM. Findings would need to be made without an overemphasis on weight being attached to delay. Further the finding that the First and Second Appellants were middle class would need to be revisited. Still further what protection might be offered from family members would, again, need to be re-examined. However, I see no benefit at all in remitting the matter to the First-tier Tribunal for findings to be made when, on the basis of the findings that I have made the Appellants are entitled to the relief they seek.
43. I finish, by expressing my gratitude both to Ms Knorr and to Mr Clarke for the assistance they gave in this matter. I appreciate that Ms Knorr took me, at some length through the UNHCR guidelines and international protection with respect to child asylum claims dated 22 December 2009. I have had regard to that document and indeed highlighted certain parts of the document during the course of Ms Knorr's very helpful submissions to me including in particular paragraphs 35 and 36 in which it was said:
"Persecution may also be established through an accumulation of a number of less serious violations. This could for instance be the case where children with disabilities or stateless children lack access to birth registration and, as a result are excluded from education, healthcare and other services.
Measures of discriminations may amount to persecution when they lead to consequences of a substantially prejudicial nature for the child concerned."
44. Those passages from the UNHCR document only go to reinforce my judgment that not only did Judge Devittie err but that the only proper course was to set aside his decision and remake the decisions.
45. I have made an Anonymity Order in this appeal because of the children and the nature of the appeals.
The decision of the First-tier Tribunal contained material errors of law. The decision is set aside. The decision of the First-tier Tribunal is remade such that the appeals of Appellants and each of them are allowed on international protection and human rights grounds (Articles 3 and 8).
Deputy Judge of the Upper Tribunal Zucker