Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA071812015

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Sent to parties on:
On 4 April 2016
On 17 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

C O O
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr Richards, Senior Presenting Officer
For the Respondent: Mr Webb, NLS Solicitors

DECISION AND REASONS

1. The Appellant in this appeal was the Respondent before the First-tier Tribunal and the Respondent was the Appellant. For the sake of clarity I refer to them as the Secretary of State and Claimant respectively. The Claimant is a national of Nigeria. She claimed asylum and her application was refused by the Secretary of State in a Reasons for Refusal Letter (RFRL) dated 10 April 2015. A decision was made to remove her by way of directions under section 10 of the Immigration and Asylum Act 1999. The Claimant appealed that decision under s82 of the Nationality, Immigration and Asylum 2002 Act and her appeal was allowed by First-tier Tribunal Judge Suffield-Thompson in a decision promulgated on 23 September 2015.

2. At the hearing before the First-tier Tribunal the Secretary of State accepted that the Claimant had been the victim of abuse by her ex-husband. The First-tier Tribunal found that the Claimant would be at risk from her husband's family in her home area. She then considered whether the Claimant would be able to internally relocate and found that she would not. She also found that there was insufficient state protection.

3. The Secretary of State sought permission to appeal the decision of the First-tier Tribunal. In granting permission, First-tier Tribunal Judge Astle considered that it was arguable that the Judge's consideration of internal relocation at paragraph 37 was inadequate and unsupported.

The Grounds

4. Ground one contends that the First-tier Tribunal failed to take into account and/or resolve conflicts of fact or opinion on material matters. The Judge found that the Claimant had never worked and so had no skills to offer were she returned if Nigeria. The Judge, it is asserted, failed to take into consideration that the Claimant, whilst in the United Kingdom, had been awarded a Master of Science in Environmental Management from the University of Derby. It is submitted that the qualification is a material matter, when considering if the Claimant possesses any skills which the Judge had not taken into account and the failure to do so was an error of law.

5. Ground two contends that the determination contains no objective evidence to support the Judge's conclusion that there were very few jobs in Southern Nigeria at the time due to the economic situation. It is said that it is unclear what evidence the Judge relied on to make this finding. Further, it is argued that it is clear from paragraph 23 of the decision that the Secretary of State's representative submitted that there were NGO's the Claimant could turn to for support and the Judge had not considered whether the Claimant could not seek such assistance.

The Hearing

6. Mr Richards submitted that the Claimant was found to be at risk on return due to domestic violence. At paragraph 37 of the decision the Judge dealt with whether it would be unduly harsh for the Claimant to return and relocate in Nigeria in her particular circumstances. It was noted that she was a single mother with two small children and the Home Office country guidance was that some could and others could not relocate and it was down to the individual circumstances. The key finding was that she had never worked and so had no skills. Mr Richards submitted that it did not take account of two significant factors. Firstly it did not take into account the existence of shelters for women in Nigeria which was set out in detail at paragraph 61 of the RFRL where there was an extensive list of organisations. He asked me to find that was at least something that should have been considered in the short term because when it was said that there were few jobs in Nigeria due to the economic situation that clearly impacted significantly in terms of a returning woman who was uneducated. The Claimant was not in that category. She had a first and a Master's degree and it may well be the case that she would be in great demand in Nigeria for the skills and the learning that she possessed. One would assume that she came to the UK having obtained her first degree in Nigeria to have a Master's to increase her employment opportunities in Nigeria. At the very least the Judge should have considered that this was not a Nigerian woman with no or very little education. She was a resourceful, intelligent, highly educated woman and it was against that background that the Judge ought to have assessed whether internal relocation would be unduly harsh. That was a conclusion not open to the Judge on the evidence before her and it was a conclusion that was inadequately reasoned. In respect of the internal relocation issue the First-tier Judge materially erred and it should be set aside.

7. Mr Webb submitted that the Judge should have mentioned the qualification but the failure was not material in the light of the objective evidence that was before the Judge which she referred to in submissions. Paragraph 134 to 148 of the Appellant's bundle demonstrated that even a well-educated woman would need to have male support in order to have employment in the south and in the north due to the strong Islamic culture and she would be precluded from obtaining any employment at all. In relation to the shelters there was evidence before the First-tier Tribunal Judge at p194 that shelters were available for a short time. It was not just short term support that needed to be considered but also how to continue following the removal of that support. The Secretary of State's bundle showed that it was unduly not harsh if there were no children to support. She had children to support and the objective evidence said she would not be able to access accommodation. The finding that she could not relocate was open to her on the evidence in the Country of Origin Information Report version 1, 2015 paragraph 2.5.3.

8. Mr Richards submitted that if there was evidence to support the conclusion then she was bound to make reference to it. He relied on his earlier submissions.

9. Mr Richards submitted that if I were to find that there was an error of law the appeal could be retained in the Upper Tribunal. Article 8 had not been dealt with and there would need to be findings. Mr Webb submitted that if the Upper Tribunal could probably deal with it.

Discussion and Findings

10. In reaching her conclusions in relation to internal flight, the First-tier tribunal correctly directed herself as to the law that she had to take account all relevant circumstances pertaining to the claimant and her country of origin, in deciding whether it was reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect her do so. She found at paragraph 37:

"The Appellant has never worked so has no skills to offer if she were to return to the South of Nigeria. There are very few jobs there at this time due to the economic situation of were to return to the South of Nigeria. There are very few jobs there at this time due to the economic situation of Nigeria."

11. Mr Webb does not dispute that the Judge was wrong in her conclusions about the Claimant's skills. The Claimant stated in her asylum interview at B20 of the Secretary of State's bundle that she had a Bachelor of Science from Nigeria, a Master's Degree in Environmental Management completed in the UK. Whilst in the UK she worked for the University of East London as an Environmental Food and Health Worker and had also worked as an Energy Support Officer and Energy Assessor whilst in the UK. There was therefore no factual basis for the Judge's conclusion that the Claimant had no skills to offer and had never worked. She therefore failed to take into account material evidence and proceeded on a false factual basis in concluding that internal flight would be unduly harsh.

12. Mr Webb argues that the findings were nevertheless open to the Tribunal on the evidence before it and hence the error was not material. He referred me to background evidence at page 134 to 136 of the Claimant's bundle in relation to the issue of whether women who head their own households without male or family support can obtain housing and employment in large cities. The First-tier Tribunal made no reference to this evidence, and whilst the report states that obtaining employment in Nigeria is very difficult it dates from 2012 and was not referred to by the Judge. Further, neither this evidence nor the COIR paragraph 2.5 (p98 of the Claimant's bundle) lead ineluctably to the conclusion highly educated and skilled women in Nigeria with children are unable to relocate. Had the Judge considered the Claimant's circumstances as they really were she may have come to a different conclusion. In the circumstances I find the error was material.

13. I also find that the First-tier Tribunal failed to resolve a material dispute of fact in relation to the issue of relocation. The Secretary of State raised both in the RFRL and in submissions that there were NGO's to which she could turn to help. The First-tier Tribunal failed to engage with this evidence and failed to give any reasons as to why the Claimant would be unable to access this support. I find that this error was also material as had she so engaged, her conclusions may have been different.

14. I therefore find that the decision of the First-tier Tribunal contained a material error of law and must be set aside.

15. The First-tier Tribunal did not consider Article 8 ECHR but the Claimant has children, born in the United Kingdom one of whom is now 8 years old and therefore a qualifying child for the purposes of section 117 (B) (6) of the 2002 Act. I consider that this is a case where clear findings of fact need to be made not only in relation to internal flight but also a full assessment will need to be made in relation to Article 8. I find that in the light of Part 7.2 (a) of the Practice Statements for the Immigration and Asylum Chamber of the First-tier Tribunal and Upper-Tier Tribunal, the extent of judicial fact finding is such that this matter should be re-heard in the First-tier Tribunal.

Notice of Decision

16. The decision of the First-tier Tribunal contained a material error of law and must be set aside and in the light of the fact finding required the appeal will be heard in the First-tier Tribunal.

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 her or any member of her 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 Date 17th June 2016

Deputy Upper Tribunal Judge L J Murray