Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05918/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 4th November 2016
On 16th November 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MISS MIYAMBOH MIMI CHABWERA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss T Jabin (Maya Solicitors)
For the Respondent: Mr G Harrison (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal, with permission, by the Appellant in relation to a Decision and Reasons of Judge Brunnen promulgated on the 26th January 2016 by which he dismissed the Appellant's asylum and human rights claim.
2. The Appellant is a citizen of Malawi born in 1991. She came to the UK in 2005. The Appellant's claim is that she was an only child who lived with her parents in Malawi until they were both killed in a road traffic accident when she was 10 or 11 years of age. She then went to live with her paternal uncle who was the local chief. The Appellant had an older half-sister in the UK who arranged to sell her father's property and pay for the Appellant to be brought to the UK in 2005.
3. The Appellant claims that when she was in Malawi she suffered sexual abuse at the hands of a schoolteacher, a childminder and one of her mother's friends. Additionally she was physically beaten by her father and by her uncle.
4. The Appellant had expected to live with her half- sister when she arrived in the UK but in fact has had nothing to do with her half- sister and instead went to live with an "aunt," who was no blood relative but a friend of her mother. The Appellant remains close to that aunt and to her aunt's children.
5. In 2007 the appellant moved to Manchester where she attended college until 2009 and lived with a family friend. In 2010 she moved to Leeds where she lived with another friend and supported herself doing casual work. In 2011 she returned to Manchester where she lived with another "aunt". She has relied on the help of friends for support and has been unable to obtain employment as she has no status.
6. The Appellant registered with a GP in Manchester in 2011 and GP notes provided to the First-tier Tribunal Judge show various consultations irrelevant for the purposes of the appeal between October 2011 and March 2013. On 31st March 2013 the Appellant was seen at casualty at a Manchester hospital with a laceration to her wrist caused by self-harm. She was referred to counselling from a support organisation called 42nd Street. The Appellant said that she has been self-harming since she was 13 years old. She has been supported by 42nd Street since April 2013.
7. The Appellant contacted her uncle in Malawi but his manner towards her was angry and threatening. She understood this was because when her half-sister sold her father's property she failed to settle their father's debts so that the responsibility for them fell on the uncle. The uncle made clear he wanted nothing to do with the Appellant and that if she returned he would accuse her of being a witch and would kill her. The Appellant has not contacted him since.
8. The Appellant had a relationship with Mr Odemorin and gave birth to their daughter in April 2015. She lives with her daughter in NASS accommodation. Although Mr Odemorin stays with her three or four nights a week they do not live together. The remainder of the time Mr Odemorin, who has no settled address, spends nights staying with various friends. The Appellant does her own shopping and likes Mr Odemorin to accompany her for Drs appointments but he is not present during the consultations.
9. The Appellant remains in contact with her aunt in the UK and her cousin. Her fear is that if she is to return to Malawi she will be directly harmed by her uncle or indirectly harmed as a result of him accusing her of witchcraft. She also fears that her mental health will deteriorate and that would support the accusation of witchcraft. She also fears that she would not be able to care for her baby.
10. The judge heard evidence from a number of people including Sara Flounders who is a councillor with 42nd Street. She had provided a statement and gave oral evidence to the effect that the Appellant was referred to the organisation from the Accident and Emergency department of North Manchester General Hospital in March 2013 because she had self- harmed and had apparently been self- harming since she was 13 years of age. Miss Flounders gave evidence that at times of increased stress the Appellant often reported strong suicidal thoughts and feelings of panic which escalated when she was considering her immigration status and fear of return.
11. The Judge noted that Miss Flounders generally offered clients 12 counselling sessions but this was extended where the need arose and has been extended in relation to the Appellant especially at times of increased risk of self-harm or suicide. She referred to having provided increased support over the Christmas period because of the Appellant's increasing anxiety about the approaching appeal hearing and referred to the fact that the appellant had seen her GP and been prescribed antidepressant tablets.
12. The Judge also heard evidence from the Appellant's partner, a friend who had been a friend of the Appellant's parents in Malawi and various other persons.
13. Judge Brunnen started his consideration of the evidence at paragraph 61 of the Decision and Reasons.
14. At paragraph 63 the Judge found that the delay in claiming asylum was not sufficiently significant to damage her overall credibility.
15. The main reason for the asylum claim was the Appellant's fear of her uncle and he found that provided the Appellant did not seek assistance from him on return, given the time that has passed, there was in reality no reason to think he would seek to do her any harm either direct physical harm or indirect harm by accusing her of witchcraft. She had only been 14 years of age when she left Malawi and could not possibly be responsible for her half-sister's failure to settle her father's debts.
16. The Judge noted that the Appellant had the benefit of a good education and had the capacity to support herself and her child. The reason she gave for not working in the UK over the last few years was not because of her mental ill-health but because she had no status. The Judge found that there would be no need for her to return to Blantyre, where her uncle lives, as there are other substantial centres of population in Malawi. She had demonstrated an ability to make friends at college and church in the UK and draw on support. She could do the same in Malawi. The letters of support that been provided to the Tribunal indicated that the Appellant is hard-working and capable and on that basis the Judge found it would not be unduly harsh or unreasonable to expect her to settle in a different area of Malawi away from her original home area in order to avoid contact with her uncle. The Judge found that there was no reason to think that the uncle would seek her out or attempt to harm if she were to do so.
17. At paragraph 71 the Judge noted that Miss Flounders and two other witnesses had expressed their concern about the impact on the Appellant's mental health of her returning to Malawi but also noted that none of them had any medical qualifications to justify giving any great weight to their concerns. In particular the Judge noted that he had not been provided with any medical evidence more recent than August 2013 when the GP notes came to an end. He noted that there was not even a GP letter commenting on the Appellant's current mental health, let alone a report from a consultant psychiatrist such as one would expect to see in such a case. The Judge noted that it appeared from Miss Flounders' evidence that the Appellant's anxiety was very largely caused by her fear that she would not be allowed to stay in the UK and that if her return was a fait accompli her anxiety might subside. He found that the evidence did not establish that there was a real risk that she would suffer such serious mental illness such that she would be at risk of being regarded as a witch and ill- treated as a result.
18. The Judge went on to find that the mere fact that a return to Malawi would have some detrimental effect on her mental health was insufficient to found a claim to remain in the UK.
19. The Judge then went on to consider Article 8 and did not accept for the reasons he had previously given that there would be very significant obstacles to the Appellant's integration and found that as she and her daughter would be removed together their family life would continue in Malawi as it did in the UK. He also found there to be no substance in her partner's reasons for not washing to go with her to Malawi and found that he had put his desire to stay in the UK before his concern for the Appellant and their daughter.
20. Permission to appeal was granted on the basis that the Judge may have erred in not giving adequate reasons in his decision for his conclusion that giving any great weight to Miss Flounders' concerns were not justified.
21. Before me Miss Jabin indicated that the grounds were quite detailed and she relied upon them but essentially the ground she relied upon was that the evidence of Miss Flounders, who had been working closely with the Appellant for many years, who had detailed the problems the Appellant would face and the impact upon her of removal had not been given adequate weight. She noted that at paragraph 71 the Judge had lumped together the evidence of Miss Flounders with two other witnesses whereas Miss Flounders was qualified to give evidence as she was a counsellor who had been working with the Appellant closely for a number of years. She said that it was not the medical qualification but the detailed evidence of Miss Flounders' dealings with the Appellant which should have been afforded considerable weight. The Appellant had been referred to Miss Flounders' organisation by the hospital who must have considered the organisation appropriately qualified to offer support.
22. Whilst I can see that Miss Flounders' evidence was detailed and expressed concerns for her "client" following a close relationship over a number of years, I cannot find that the Judge erred in the amount of weight he gave to that evidence. That has to be tempered by the fact that the Appellant's representatives chose to adduce no medical evidence more recent than August 2013 when they could have done so. There was no psychiatric report which would have carried very considerable weight. Indeed there has been no application to adduce any such evidence to the Upper Tribunal.
23. The medical evidence that there was and indeed the evidence from Miss Flounders showed that the Appellant had self- harmed in March 2013 but there had been no incidents of self-harm since and no incidents of attempted suicide. Miss Jabin confirmed that was the case. Miss Jabin in referring to it being a very serious mental illness overstated the evidence. The evidence did not point to that. The Appellant is not receiving any treatment or medication for mental illness. She has not been hospitalised. She is not under the care of a psychiatrist and she has not exhibited any concerning behaviours such as self-harm or suicide attempts save for the one incident in March 2013. Had the hospital deemed it as serious as Miss Jabin suggested they would have referred her to psychiatric services rather than simply a counsellor.
24. A Judge is entitled to expect, if indeed it is the case that an Appellant has a serious and abiding mental illness, greater and more detailed medical evidence. Its absence pointed to her condition being far less serious than claimed.
25. The Judge noted that she shopped on her own, cared for her daughter on her own, attended sessions with Miss Flounders on her own. Indeed she appears to be managing in the community without any concerns about her daughter and without the support of a partner.
26. The First-tier Tribunal approached his consideration appropriately, took all the evidence into account and reached conclusions plainly open to him on the evidence. His Decision and Reasons contains no material error of law.
Decision
The appeal to the Upper Tribunal is dismissed.
There having been no application for an anonymity order I do not make one.

Signed Date 14th November 2016

Upper Tribunal Judge Martin