Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/07796/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 16 August 2016
On 31 August 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

TaO
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O Manley instructed by NLS Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND REASONS

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 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.

Introduction
1. The appellant is a citizen of Kenya. She arrived in the United Kingdom on 20 November 2010 with a visit visa valid until 25 April 2011.
2. On 6 December 2012 the appellant claimed asylum. Although her asylum claim was refused on 4 October 2013 the appellant was granted discretionary leave to remain for twelve months until 4 October 2014 on the basis that she was considered to be a potential victim of trafficking.
3. On 2 October 2014, the appellant applied for further leave to remain. She claimed that she would be at risk on return to Kenya from her husband as he had discovered that she was a lesbian and further that she was at risk of FGM from the Mungiki.
4. On 23 April 2015, the Secretary of State refused the appellant's claim for asylum and humanitarian protection and also refused to grant her leave under Article 8 or on a discretionary basis.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal.
6. Following a hearing on 21 October 2015, Judge A D Troup dismissed the appellant's appeal on all grounds in a determination dated 29 October 2015. Judge Troup made an adverse credibility finding. He did not accept that the appellant was a lesbian and so was at risk on that account from her husband in Kenya. Further, he rejected her account to be at risk of FGM. Finally, Judge Troup dismissed the appellant's claim under Article 8 of the ECHR.
The Appeal to the Upper Tribunal
7. The appellant sought permission to appeal to the Upper Tribunal.
8. In her grounds, the appellant did not challenge the judge's findings (1) that she was had not established that she was a lesbian and consequently was not at risk from her husband and, further, and (2) that she was not at risk of FGM because of her husband's association with the Mungiki.
9. The grounds solely challenged the judge's decision to dismiss the appeal under Article 8. In essence, the grounds argue that the judge failed to consider whether the appellant's circumstances on return to Kenya were "unduly harsh" as she would be returning as a single woman with no support network and may be subject to destitution. Reliance was placed on the Home Office OGN (December 2013) at para 3.16.30 which stated that: "It should be noted that women, and especially single women, with no support network are likely to be vulnerable and may be subject to destitution." Reliance was also placed upon the appellant's particular circumstances, namely that she had been adopted from Rwanda, her husband was abusive, she had no other family or friends in Kenya and she had a serious ongoing mental health problem.
10. Permission to appeal was initially refused by the First-tier Tribunal but on 21 December 2015, the Upper Tribunal (DUTJ Mailer) granted the appellant permission on the ground that the judge had arguably failed to consider whether it would be "unduly harsh" for the appellant to return to Kenya as a single woman in assessing her claim under Article 8.
11. Thus, the appeal came before me.
The Submissions
12. On behalf of the appellant, Mr Manley relied upon the grounds and submitted that the judge had failed to properly consider the circumstances of the appellant on return to Kenya. Mr Manley submitted that the judge had failed to make any finding whether the appellant would return as a single woman. Further he relied upon paras 61 and 62 of the respondent's decision letter where, he submitted, it had been accepted that the appellant would be unwilling to continue her relationship with her husband and would not be returning to him. Mr Manley submitted that the judge had failed to consider the appellant's claim under Article 8 as a returning single woman.
13. Mr Richards, on behalf of the Secretary of State submitted that there was no evidential basis for the judge to find that the appellant would be returning as a single or lone woman. Mr Richards submitted that the judge had made comprehensive adverse credibility findings against the appellant rejecting her claim that she was a lesbian and at risk from her husband as a result of that and, in addition, that she was at risk on return of being subjected to FGM. Mr Richards submitted that the judge had, in effect, found that the appellant would be returning to Kenya where she had a husband and was not therefore someone who fell potentially within the category of a returning single or lone woman.
Discussion
14. The judge's decision and reasons in relation to Article 8 are set out at paras 40 - 41 of his determination as follows:
"40. The representative agreed that the Immigration Rules relating to family and private life are not engaged in this appeal.
As appears from the Appellant's bundle however, she is receiving treatment for post-traumatic stress disorder at the Links Centre of the Cardiff Royal Infirmary. I find from the Respondent's 'Response to Country of Origin Information Request' dated 24 April 2014 however that medication for that condition is available in Kenya.
41. As to private and family life outside the Rules, there is no evidence before me that the Appellant has a private and/or family life in the UK, despite Counsel's submission that she has. She does not claim to be in a relationship of any sort here, and there is simply no evidence before me of private life. Bearing in mind however that the Appellant has been resident in the UK since 2010, it can be inferred that private life of some sort has been established but I find that the Appellant's removal to Kenya does not reach her protected rights. The Respondent's decision may interfere with the enjoyment of that right, but the decision is made in pursuit of the legitimate aim of immigration control and is proportionate. I have taken account of the public interest considerations applicable in all case at section 117B of the Nationality, Immigration and Asylum Act 2002. I note that the maintenance of effective immigration control is in the public interest and, further, that little weight should be given to private life established at a time when a person's immigration status is precarious. Thus, when balancing the Appellant's interests against those of the public, I find when taking all applicable considerations into account that the public interest prevails and I dismiss the appeal under Article 8."
15. It is clear that in para 40 the judge dealt with the appellant's case under Article 8 in respect of her PTSD. His conclusion that medication for that condition is available in Kenya is not challenged.
16. Equally, it is clear that in para 41 the judge did not directly address the case put to him by the appellant's (then) representative that she would be returning as a single or lone woman and, based upon the Home Office's own OGN, would be vulnerable and might be subject to destitution in the absence of a support network.
17. The failure to do so is, of course, at the heart of Mr Manley's submissions on behalf of the appellant. The difficulty with the submission is, however, that the judge clearly found, in making his adverse credibility findings, that the appellant's account based upon a risk emanating from her husband was simply not established. The judge, in effect, rejected any basis put forward by the appellant upon which she claimed she could not return to Kenya to be with her husband. None of those findings are challenged.
18. Mr Manley placed reliance upon para 62 of the refusal letter which states,
"... therefore, it is not unreasonable to accept that you are no longer willing to continue your relationship with your husband and will no be returning to him."
19. Mr Manley submitted that the Secretary of State had accepted that the appellant would return to Kenya but not to her husband.
20. That submission cannot, however, be sustained when para 62 is seen in context.
21. At para 62 of the RRL and thereafter, the Secretary of State is considering whether the appellant could internally relocate within Kenya. Previously in her decision letter, the Secretary of State had rejected the appellant's claim to be at risk from her husband. The context is, therefore, one in which the Secretary of State is taking the appellant's claim "at its highest". The only basis upon which the appellant claimed that she would not return to her husband was that she was at risk from him. That is a premise which was rejected by the Secretary of State (and subsequently by Judge Troup) and the consideration of internal relocation para 62 is based upon the counter factual premise that the appellant is, in fact, at risk from her husband. It is not an acceptance by the Secretary of State that the appellant will not be able to return to her husband.
22. Consequently, when considering Article 8 Judge Troup had rejected any basis put forward by the appellant as to why she could not return to her husband. Self-evidently, therefore, she would not be returning as a single or lone woman despite the case put forward on her behalf at the hearing. Whilst it might have been clearer if Judge Troup had made an explicit finding, there can be no doubt, given his rejection of the appellant's evidence and credibility, that the factual matrix relied upon by the appellant and repeated in her grounds of appeal simply did not arise. I am satisfied that it is the implicit (and indeed inevitable) premise upon which Judge Troup approached the appellant's claim under Article 8.
23. As a result, there was simply no basis upon which the appellant could succeed under Article 8 returning to a country where her husband lived given the judge's rejection of her account of his ill-treatment or of any risk to her of ill-treatment by him. There was no reason why she could not return to him and hence was not properly seen as a returning loan or single woman. No other challenge is made in respect of the judge's reasoning in paras 40 and 41 in dismissing the appellant's claim under Article 8.
24. For the above reasons, I am satisfied that the judge's decision did not involve the making of an error of law and his decision stands.
Decision
25. The decision of the First-tier Tribunal to dismiss the appellant's appeal on asylum and humanitarian protection grounds and under Art 2 and 3 of the ECHR is not challenged.
26. Further, the decision of the First-tier Tribunal to dismiss the appellant's appeal under Article 8 did not involve the making of an error of law.
27. Accordingly, the judge's decision to dismiss the appellant's appeal on all grounds stands.

Signed

A Grubb
Judge of the Upper Tribunal
Date 31st August 2016