Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05871/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 5 December 2016
On 6 December 2016

Before:

UPPER TRIBUNAL JUDGE GILL

Between

The Secretary of State for the Home Department
Appellant

and

FS
(ANONYMITY ORDER MADE)

Respondent

Anonymity

I make an order under r.14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify FS or any member of her family. No report of these proceedings shall directly or indirectly identify any of them. This direction applies to both the applicant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

The parties at liberty to apply to discharge this order, with reasons.

Representation:
For the Appellant: Mr. P Duffy, Senior Presenting Officer.
For the Respondent: Ms. E Daykin, of Counsel, instructed by Irving & Col Solicitors.

DECISION AND REASONS
1. Permission has been granted to appeal to the Upper Tribunal against a decision of Judge of the First-tier Tribunal E M Simpson who, following a hearing on 14 June 2016, allowed the appeal of FS (hereafter the "claimant") on asylum grounds. FS is a national of Somalia born on 1 December 1995. The judge concluded that humanitarian protection grounds do not arise. The judge allowed the appeal on human rights grounds, in relation to Articles 2 and 3 for the same reasons as the asylum ground. In relation to Article 8, the judge found that the claimant had established family life with a British citizen with whom she has a British daughter and that removal would be "contrary to international obligations" and therefore contrary to law and disproportionate.
2. The issue in this case is whether, in reaching her finding that FS had a well-founded fear of persecution in Somalia, the judge had materially erred in law in deciding the issue of future risk on the basis that the claimant would be returning to Somalia as a lone woman from a minority group without connections or networks of support in Somalia.
3. The Secretary of State contends that the judge overlooked the fact that the claimant has a husband (Mr Ali) who is himself of Somali origin as is his mother and that, given that the relationship between the claimant and Mr Ali was formed "in highly precarious circumstances", no reasons had been advanced as to why the claimant would be returning alone and could not be expected to return with Mr Ali who (it is contended) would be able to support and protect the claimant.
Relevant background
4. Given the limited terms in which permission was sought and granted, it is not necessary to rehearse the entire immigration history or the basis of the claimant's asylum claim. It is sufficient to provide the following summary of the relevant background/findings of the judge:
5. The claimant left Somalia with her mother in 2000 (when she was about 5 years of age) and went to live in Kenya until 2013. In December 2013, she left her mother in Kenya and travelled to the United Kingdom, arriving either on 1 December 2013 or 6 December 2013. On arrival, she was taken to the address of her mother's cousin. She met Mr Ali through a relative. They belonged to the same minority clan, the Bajuni. She moved in to live with Mr Ali on 9 February 2015. They married in an Islamic ceremony on 1 March 2015. In the meantime, she had claimed asylum, on 21 January 2014. By the date of her substantive asylum interview on 16 February 2015, she was pregnant. A daughter was born to the couple on 20 March 2015. As at the date of the hearing before the judge (14 June 2016), the claimant was pregnant again with a due date of 7 December 2016.
6. Mr Ali was born a Somali national, on 10 February 1991. He arrived in the United Kingdom with his mother in May 2000. He was 9 years old then. On 13 May 2005, he was granted indefinite leave to remain as a refugee. He was then 14 years of age. On 19 May 2006, he became a British citizen. At the date of the hearing, he was 27 years of age.
The judge's decision
7. Credibility was in issue before the judge. The judge accepted that the claimant was a national of Somalia; that she was a member of a minority clan, namely the Bajuni clan, sub-clan Nofali; that she was originally from Chula island; that she fled Somalia at a young age with her mother, by dhow, from their home in Chula after the deaths of her father and brother; that she and her mother then lived in Dadaab refugee camp in Somalia and later in Mombasa in a precarious existence; and that she arrived in the United Kingdom in December 2013. The judge also accepted that the Islamic "marriage" between the claimant and Mr Ali was a genuine and subsisting marriage. The Secretary of State has not challenged these findings.
8. Nor has the Secretary of State challenged the judge's decision that the decision would be in breach of Article 8.
Submissions
9. At the commencement of the hearing, I asked Mr Duffy whether the Secretary of State had advanced the argument before the judge that, if she found the claimant credible and made findings of fact in favour of the claimant, the judge should assess the future risk taking into account the possibility of Mr Ali returning to Somalia with the claimant. Mr Duffy submitted that this was an obvious issue that the judge should have considered whether or not it was advanced on the claimant's behalf. He submitted that the issue was "an elephant in the room".
10. However, Mr Duffy acknowledged that the consideration of the issue would have required evidence as to whether Mr Ali would in reality return to Somalia with the claimant. Since there was no evidence in this issue before the judge, he submitted that there would need to be a further hearing at which evidence on the issue would have to be heard.
11. I heard briefly from Ms Daykin and Mr Duffy in reply, following which I reserved my decision.
Assessment
12. It is plain from the judge's decision that the claimant's case was that she was at real risk of persecution on return to Somalia as a lone woman. It is also plain that, notwithstanding that the basis of the claimant's case was clear, the Secretary of State's case centred on the claimant's credibility. At no point was it argued that, even if the claimant was credible and the judge made findings of fact in her favour, she would not be returning to Somalia as a lone woman because Mr Ali would accompany her.
13. It is important to note that Mr Duffy accepted that, in the event that I decided that the judge should have considered whether the claimant would be returning to Somalia as a lone woman or whether Mr Ali would return with her, further evidence as to whether Mr Ali would in reality return to Somalia with the claimant would be necessary. In these circumstances, I am satisfied that the Secretary of State seeks to argue her case before the Upper Tribunal on a basis that was not made apparent in the proceedings before the First-tier Tribunal. I acknowledge that the burden of proof is upon the claimant to establish that she is a refugee. Nevertheless, if the Secretary of State had advanced before the FtT the argument she now seeks to rely upon, the claimant could have led evidence at the hearing before the FtT to address the point.
14. It is therefore clear that the Secretary of State seeks to have the decision of the judge set aside on a ground not relied upon before the FtT. In all of the circumstances, I have decided that the judge cannot be said to have materially erred in law in failing to deal with an issue that was not before her.
15. The Secretary of State's appeal to the Upper Tribunal is therefore dismissed.

Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

Signed Date: 5 December 2016
Upper Tribunal Judge Gill