Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06859/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 August 2016
On 9 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

G K
(anonymity direction made)
Appellant
and

THE SECRFETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Miss E Daykin, counsel,
instructed by Rashid and Rashid Law Firm
For the Respondent: Mr C Avery, Home Office Presenting officer

DECISION AND REASONS

1. This appeal arises from a decision of First-tier Tribunal Judge Green promulgated on 28 April 2016. The appellant (whose identity will continue to be subject to an anonymity order) was born on [ ] 1984 and is a national of Uzbekistan. She entered the United Kingdom in December 2012 as a student. In 2013 she met her husband, a citizen of Afghanistan, and returned to Uzbekistan later that year. The appellant came back to the United Kingdom, married the gentleman in question. They have one child and the appellant is now expecting a further child.

2. The issue before the Judge arose out of a refusal by the Secretary of State to grant asylum to the asylum. The First-tier Tribunal considered the matter on the basis of the asylum claim and also under Article 8 of the European Convention on Human Rights. The Judge reviewed the evidence before him which included statements from the appellant and her husband, together with their oral testimony which was subject to cross-examination. There was considerable documentation before the Judge, filed by both parties.

3. The Judge's findings were that although there were significant difficulties with the appellant's family in consequence of her relationship with an Afghan national, nonetheless there was no risk to her on return to Uzbekistan on the basis that even if there were hostility to the appellant from her family she could live independently with her child elsewhere in Uzbekistan.

4. There were three grounds of appeal in the written application, one of which (with my permission) was expanded somewhat during counsel's submissions. The first ground was ultimately not pursued with any great rigour as it dealt with alleged failures by the Judge in assessing issues of credibility. The way in which it was put to me by Miss Daykin in her very helpful and able submissions, was that the Judge's finding that this was a more liberal family does not sit happily with the conduct of mother, father and brother in the way that they apparently reacted to the appellant marrying outside her cultural community. There is no material error of law on the Judge's part in dealing with this. The Judge noted a marked disconnect between the manner in which the appellant's sisters had lived their lives and the manner in which the appellant had done so, the appellant showing a greater degree of independence of spirit than her sisters. The Judge recorded the reaction of the appellant's family in these circumstances but there is no error on the Judge's part in making the findings that he did on the evidence before him. He was fully aware of the background and there is nothing 'incoherent' in the conclusions he reaches.

5. Dealing with the second ground of appeal relating to certain findings, it is necessary to record a lengthy paragraph of the decision in which the substantive conclusions of the Judge are to be found. Paragraph 25 states:

"In view of what I have said above, what risk, if any, does the appellant face on returning to Uzbekistan? She would be returning as a failed asylum seeker and as a woman with a child born out of wedlock. The country guidance cases in relation to Uzbekistan are few and far between but it is possible to extrapolate some principles from country guidance and other decisions and apply them to this appeal. In FN and Others v Sweden (Application No 28774/09) ECtHR Fifth Section the claimant's asylum claim has been disbelieved. FN then jointed the Uzbekistan opposition Birdamlic party in Sweden. He argued that returning a failed asylum seeker to Uzbekistan would put him at risk. ? The judge was aware that the practice of torture in police custody was systemic and indiscriminate and remained a pervasive and enduring problem in Uzbekistan. In those circumstances the appeal was allowed. In the case before me the appellant is not a political opponent of the regime and she is therefore unlikely to be detained and interrogated about her activities during her time outside of Uzbekistan. Further she has the benefit of an anonymity order in this appeal and cannot be identified as a failed asylum seeker. There is no evidence to suggest that her exit permit from Uzbekistan has expired and therefore she is unlikely to be detained and interrogated as an illegal entrant. Unlike countries such as Bangladesh there is no country guidance on whether she would face risk on return by virtue of her status as a woman and I cannot make any finding to that effect. She is not a member of a religious minority. She has been brought up as a Muslim. She is a well-educated woman who has already pursued a profession in Uzbekistan and there is no reason to believe that she could not do that again. The bulk of her family live in Samarqand and she could live in Tashkent which is a large city. I am not satisfied on the evidence that she would continue to be of interest to her family or that they would be in a position to find out if she had returned. Uzbekistan according to the objective evidence relied upon by the respondent has a functioning criminal justice system and criminal law enforcement agency and would be able to provide the appellant with sufficient protection should she wish to avail herself of it. Under all the circumstances I do not accept that the appellant qualifies for asylum or humanitarian protection and her Article 2 & 3 ECHR claims also fail for the reasons given above."

6. It is accepted by Mr Avery on behalf of the Secretary of State that one sentence within this quoted paragraph is perhaps infelicitous. The judge comments upon the absence of country guidance specifically referable to Uzbekistan regarding the risk to be faced as a single woman and he says 'I cannot make any finding to that effect'. Looked at in the context of this determination, which is detailed and meticulous, the judge is doing no more than indicating that there is no country guidance which would compel a finding that the appellant's status as a woman would of itself be determinative of subsisting risk. In doing so the Judge is absolutely correct. In consequence, the Judge cannot make any generic disposal of the matter but must deal with it on a fact-specific basis on such information as is available to him. The Judge did have a significant body of independent material before him, albeit it was not country guidance in the strict sense. This is reproduced in paragraph 17 of the decision. It includes reference to a report by the Immigration and Refugee Board of Canada entitled "Uzbekistan Domestic Violence Protection Available" and is dated 6 February 2006. In addition there is a report prepared by the OECD Development Centre which was expressly referred to by the Judge. The pertinent paragraph reads:

"In practice, according to a shadow report submitted by the CEDAW Committee by the Coalition of Uzbek Women's Rights NGOs, men are generally considered to be the heads of families in Uzbekistan while women are responsible for domestic work and childcare. In the event of divorce or widowhood, younger women are expected to return to their parents' home; they are only able to live independently if they already have children. Official rhetoric promotes the importance of 'traditional Uzbek values' including in regard to traditional gender roles."

7. For completeness, the third item cited by the Judge is a report by the Committee on the Elimination of Discrimination Against Women dated 20 November 2015 which includes particular reference to Uzbekistan.

8. It is clear that the Judge had that material in mind when he came to the conclusions which he did. He formed the view that if it were not possible for the appellant to live with her family who are in Samarqand then she could live elsewhere. In my assessment, both expressly and by implication, the Judge did turn his mind to whether it would be reasonable for the appellant to relocate and came to a measured finding on the evidence before him. Although he may not have expressly mentioned the report to which I have made reference, he went further and considered the matter on the individual circumstances applying to this particular appellant. The Judge was of the view that there was sufficient protection under Uzbek criminal law and its functioning criminal justice system to ensure that the appellant would have sufficient protection. There is nothing to suggest that the appellant's status as an independently living single woman would be a cause of difficulty. The passage which I have quoted from the OECD report makes plain that independent living, even of a younger woman, is acceptable where there are children involved (as is the case in this instance). Although the appellant is strictly neither divorced nor widowed, her circumstances are such that she would be living separately from her husband.

9. In the circumstances I can find no error of law in the Judge's decision in respect of ground 2 or 3 as advanced in oral submissions. In any event, there was sufficient in the independent reports which I have cited (and the one from which I have quoted in particular), to sustain the findings which the judge came to. Even had I been satisfied that there was substance in the argument that there may have been an error of law, I would not have regarded it as material.

Notice of Decision

The appeal is dismissed and the decision of the First-tier Tribunal is maintained.

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 him or any member of their 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 Mark Hill Date 8 August 2016

Deputy Upper Tribunal Judge Hill QC