Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08070/2014

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 14 March 2017
On 29 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

J M K
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Evans instructed by Fountain Solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The anonymity direction imposed in my earlier decision dated 23 January 2017 remains in force.
Introduction
2. The appellant, who has been found to be a citizen of Zambia, was born on 7 October 1950. She arrived in the United Kingdom on 14 June 2004 with a six-month visit visa. She overstayed after her visa expired.
3. On 12 March 2014, the appellant applied for asylum on the basis that she was a citizen of Zimbabwe and would be targeted by Zanu PF on return.
4. On 29 August 2014, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the ECHR. The Secretary of State did not accept that the appellant was a citizen of Zimbabwe but rather concluded she was a citizen of Zambia where she claimed to have been born. She held a Zambian passport.
The Appeal Proceedings So Far
5. The appellant appealed to the First-tier Tribunal. Her appeal was dismissed in a decision sent on 17 June 2015. She appealed to the Upper Tribunal and the appeal was remitted to the First-tier Tribunal for a fresh hearing. The remitted appeal was heard by Judge Fowell on 20 July 2016. He rejected the appellant’s claim to be a Zimbabwean national and found that she was a national of Zambia. He dismissed her claim on asylum grounds and also under Arts 3 and 8 of the ECHR.
6. The appellant again appealed to the Upper Tribunal and permission to appeal was granted by the First-tier Tribunal on 19 September 2016. Permission was granted to challenge the judge’s decision with the exception of his decision to dismiss the appeal under Art 8.
7. The appeal was initially listed before me on 17 January 2017. I concluded that the judge had not made an error of law in reaching his adverse credibility finding in respect of the appellant and in concluding that she had not established that she was a citizen of Zimbabwe but rather that the evidence established on a balance of probabilities that she was a citizen of Zambia. However, I concluded that the judge had made an error of law, in applying the wrong standard of proof, in dismissing the Appellant’s appeal under Art 3 of the ECHR on the basis of her claim that, if it was accepted she was a citizen of Zambia, she was not at risk of serious ill-treatment contrary to Art 3 because of the conditions she would return to as a lone woman. My reasons are set out in my decision dated 23 January 2017. It is not necessary to repeat them here except to note the obvious typographical error in the first sentence of para 16 where the final word should be “Zambia” and not “Zimbabwe”.
8. As a consequence, I adjourned the appeal to be relisted for a resumed hearing in order to remake the decision limited to the issue of whether the appellant could establish a breach of Art 3, and to the extent that she was a member of a particular social group (PSG) also a refugee, on the basis that there was a real risk of serious ill-treatment or persecution on return to Zambia.
The Resumed Hearing
9. At the resumed hearing, the appellant was represented by Mr Evans and the respondent by Mr Kotas.
10. It was common ground between the parties that the only relevant issues before me were as set out in paras 18-26 of my earlier decision which I have summarised above; that is whether the appellant has established a real risk of serious ill-treatment contrary to Art 3 if she returned to Zambia as a lone woman. Further, to the extent that the appellant is a member of a PSG whether on return she has established a well-founded fear of persecution for a Convention reason.
11. Judge Fowell’s decision to dismiss the appellant’s appeal under Art 8 stood as permission to challenge it had not been granted by the First-tier Tribunal. Mr Evans made no submissions, therefore, in respect of Art 8.
12. Likewise, it was common ground between the parties that the judge’s factual findings in paras 42-49 of his determination stood, including that she was a Zambian national. Those findings included an adverse credibility finding in respect of the appellant including that she had “gone to some efforts to mislead the immigration authorities about her nationality” (see para 47 of Judge Fowell’s decision).
13. I was referred me to the substantial bundle that had been prepared for the earlier error of law hearing. In that bundle there is an updated witness statement from the appellant dated 9 January 2017 (at P1-P27). Mr Evans made no reference to this statement which he stated at para 6 of his skeleton argument “offers little assistance in respect of the issue before the Tribunal”.
14. Both Mr Evans and Mr Kotas drew my attention to the background material relating to Zambia in Section D of the appellant’s bundle. Three of the documents relate to Zambia. The others, which are now irrelevant to the issues I have to decide, relate to Zimbabwe. Those documents are: “US Department of State: 2014 Country Reports on Human Rights Practices: Zambia” (24 June 2015) (at P215-P243); “US Department of State: 2015 Country Reports on Human Rights Practices: Zambia” (13 April 2016) (at P325-P344) and “Freedom House, Freedom in the World 2016: Zambia” (27 January 2016) (at P319-P324).
15. In addition, Mr Kotas submitted a Home Office document, “Response to Country of Origin Information (COI) request” (22 December 2015) replying to the enquiry “What support groups exist for single women in Zambia? What employment opportunities exist for single women in Zambia?”
16. Finally, a BBC news report dated 4 January 2017 taken from the internet entitled “Zambia Women’s ‘day off for periods’ sparks debate” was put before me speaking to a provision in Zambia’s labour law that allows female workers to take off one day a month (known as Mother’s Day).
The Submissions
17. Mr Evans relied upon his helpful skeleton argument which he developed in his oral submissions.
18. Mr Evans acknowledged that the appellant still maintained that she was a citizen of Zimbabwe. However, he pointed out that on any view it is accepted that she has not lived in Zambia since she was about 10. He submitted that the appellant is 66 years old and has lived in the UK since 2004. Before that she had lived in Zimbabwe. He submitted her life, her family and friends are here. She has no one in Zambia.
19. Mr Evans placed reliance upon passages in the Freedom House report at pages P319-P324 of the bundle. He submitted that that set out the difficulties encountered in Zambia with corruption and police brutality widespread and the limitations posed upon group meetings and political gatherings. He relied upon a passage (at P323) which stated that “societal discrimination, low literacy levels and violence remain serious obstacles to women’s rights”. He submitted that women were denied full economic participation and there was discrimination against them. Sexual violence was widespread and sanctions were not adequately enforced.
20. Mr Evans also placed reliance upon the 2015 US Department of State Report particularly passages at P326, P333 and P337 identifying gender-based violence as a problem which the authorities failed to adequately enforce or protect women from. Domestic violence was also a serious problem and sexual harassment was common. He also relied upon the fact that customary law and land rights were not equally available to women.
21. Given this background, Mr Evans submitted that the appellant would face an “astonishingly grim scenario” if she were returned to Zambia. She would face discrimination, gender-based violence was prevalent and there was poor employment for women. She had no husband and was 66 years old. He submitted that her circumstances engaged Art 3 of the ECHR.
22. Mr Kotas, on behalf of the Secretary of State, relied on Judge Fowell’s adverse credibility finding. He submitted that, as a consequence, there was no reliable way to know what if any friends or family the appellant had in Zambia. He submitted that she had not established that she had nothing to return to in Zambia. He also relied upon Judge Fowell’s finding at para 57 of his determination that there were not established “very significant obstacles” to her return to Zambia. Mr Kotas relied upon this finding, which stood unchallenged, and submitted that the appellant could not therefore succeed under Art 3 of the ECHR.
23. Mr Kotas submitted that the facts fell very far short of establishing a breach of Art 3 or the Refugee Convention. He referred me to a number of passages in the background material. First, he relied upon the 2014 US State Department Report. At P229, he relied on a passage that recognised that in the 2011 general elections female candidates had won seventeen of the 150 seats. Further, at P231 he relied on the passage dealing with sexual violence and women that the law criminalised rape and that while enforcement was not perfect, the government was seeking to enforce the law. He also referred me to P232 where under the heading “Sexual Harassment”, whilst noting that was “common”, the report continues that “the government took increased steps to prosecute harassment during the year”. Mr Kotas relied upon the section at P235 which identified that the law prohibited discrimination in general and that Zambia was progressive in relation to dealing with discrimination in respect of disabilities. Mr Kotas referred me to a section in the report at P238 as showing that collective bargaining was part of Zambian labour law. At P240 the report also notes that labour law in Zambia prohibits discrimination in employment, inter alia, in relation to gender.
24. Mr Kotas also relied upon the COI response that difficulties with land arose from customary laws and disputes between families. That was not relevant to the appellant.
25. In relation to the Freedom House report, Mr Kotas accepted that it recognised there was societal discrimination in relation to women (see P323) but he submitted that the level of discrimination did not reach the threshold for Art 3.
26. In relation to the 2015 US State Department Report, Mr Kotas referred me to two passages. That report, in many respects, reflects what is said in the previous year’s report. At P336, Mr Kotas relied upon the passage under the heading “Women: Rape and Domestic Violence” which states that the law criminalised rape including providing for sentences of life imprisonment with hard labour. It notes that rape was nonetheless widespread but continued that the “government increasingly enforced the law and obtained rape convictions with higher penalties.” At P332, he referred me to the sections dealing with “sexual harassment” and “discrimination”. He acknowledged that the report identified that sexual harassment was “common” but that the government had taken “some steps to prosecute harassment during the year”. Likewise, the law prohibited discrimination against women. However, whilst the report notes that the “government did not adequately enforce the law” so that women experienced discrimination in employment, education, inheritance and ownership of land and other property, Mr Kotas submitted that even though the situation for women was not perfect, the government was seeking to enforce the law and the position could not be said to engage Art 3.
The Law
27. The appellant relies principally upon Art 3 of the ECHR. Article 3 states that:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
28. The burden of proof is upon the appellant to establish that there are substantial grounds for believing that there is a real risk that she will suffer treatment contrary to Art 3 of the ECHR.
29. For ill-treatment to engage Art 3 there is a “minimum level of severity” which is relative and takes into account all relevant factors including the duration of any ill-treatment, its physical or mental effects, and the age, sex, vulnerability and state of health of the individual (see Ireland v UK (1980) 2 EHRR 25 at [162]).
30. Discrimination can amount to degrading treatment within Art 3 as an affront to human dignity if sufficiently serious in arousing in the individual feelings of fear, anguish and inferiority capable of humiliating and debasing that individual (see Ireland v UK and East African Asians cases (1973) 3 EHRR 76). Any such treatment must reach the required minimum level of severity to engage Art 3.
31. Where an individual’s claim relies upon their facing impoverished social conditions in their own country, a ‘high threshold’ exists to establish a breach of Art 3 (see Sufi and Elmi v UK (2012) 54 EHRR 9 at [292]).
32. In relation to a claim under the Refugee Convention, the appellant must establish that there is a reasonable likelihood or real risk that if returned to Zambia she would suffer persecution for a Convention reason, in this case as a member of a particular social group (PSG).
33. It was not suggested before me that there was in substance any difference between the appellant’s claim under Art 3 and the Refugee Convention. The appeal was argued on the basis that there was either a real risk of serious ill-treatment contrary to Art 3 and persecution or there was not. Neither representative addressed me on the issue of whether the appellant was a member of a PSG as a returning woman or lone woman to Zambia. I will return to that issue, albeit briefly, later.
Discussion
34. My starting point must be those findings of Judge Fowell which stand. He found that the appellant was a citizen of Zambia. She had been born in Zambia and had lived there until she was 10 or 11 years old. He accepted that the appellant had had two Zambian passports; the second of which had been issued in Lusaka in Zambia on 10 February 2004. A visit visa to the UK was also issued in Lusaka. The judge accepted that the appellant had been living and working in Zimbabwe at the time of her attempts to travel to the UK in 2004.
35. Besides those facts, the judge did not accept any aspect of the appellant’s account. He found her not to be credible not least because she had “gone to some efforts to mislead the immigration authorities about her nationality”. I accept Mr Kotas’ submission that there is, therefore, no sustainable evidence as to whether the appellant has family, friends or otherwise has connections in Zambia. Of course, the burden of proof is upon her to establish the relevant facts, albeit on the lower standard. She has, in my judgment, failed to establish her circumstances in Zambia in particular that she has no family, friends or connections there. However, I accept Mr Evans’ submission that the appellant has not lived in Zambia since she was 10 or 11. She is, of course, 66 years of age and has lived in the UK since 2004.
36. I have already set out in summary the parties respective submissions in relation to the background material. In short, I accept Mr Kotas’ submissions in relation to this material. It does not establish that there is a real risk of serious ill-treatment to the appellant returning to Zambia.
37. I accept on the basis of that material that women in Zambia may suffer some “societal discrimination”. I also accept that there is evidence of some gender-based violence. That violence is, however, prohibited by Zambian law. In particular, as the 2015 US State Department Report points out, the sentence for rapists can include life imprisonment with hard labour and that the government has increasingly enforced that law obtaining rape convictions with higher penalties (see P336). Likewise, in respect of sexual harassment, both the 2014 and 2015 US Department of State Reports identify that whilst it is “common” the government has taken “increased steps to prosecute harassment” (see P232) or has taken “some steps to prosecute harassment” (see P337) in the respective years of 2014 and 2015.
38. Further, whilst discrimination exists for women in employment, the background material does not establish, even to the lower standard, that the appellant (who claims to be a nurse) could not enter the labour force in Zambia. The BBC news report, to which I made reference above, illustrates that the country’s labour law, at least in one respect, gives favourable treatment to women. As regards discrimination in employment, the prohibition on discrimination in employment based upon, for example, sex is identified in the 2015 report (at P343). The discrimination in practise, which the report then goes on to identify, does not directly relate to women but is in respect of “disability, sexual orientation, and gender identity”.
39. I note the background material to which I was referred concerning problems faced by women in relation to acquiring and owning land (see e.g. the 2015 US Report at P337-P338). Whilst it refers to difficulties of access to credit by women in order to acquire land or property, and that a lower percentage of women than men own homes or businesses, this falls far short of identifying discrimination reaching the Art 3 threshold. Further, I note the reference to discrimination against women in “local customary law” in respect of property ownership, inheritance and marriage, but nothing specific has been raised in the evidence in respect of the appellant which would, in fact, expose her to any discrimination in those contexts.
40. One final matter to which I should specifically refer concerns women’s participation in the political process. The 2005 US Report (at P334) notes that there are
“no laws or cultural or traditional practises preventing women or members of minorities from voting, running for office, serving as electoral monitors, or otherwise participating in political life on the same basis as men or non-minority citizens”.
41. Further, the 2014 US Report refers to the election of seventeen female candidates in the 2011 general election.
42. In determining whether the appellant has established a real risk of serious harm contrary to Art 3 and whether her circumstance would reach the “minimum level of severity” required for Art 3, I fully take into account her circumstances on return such as they are known and set out above. In particular, I take into account that the appellant is 66 years of age and has not lived in Zambia since she was 10 or 11. There is, however, no evidence to establish that she has no family, friends or other connections there and it is accepted that she has returned to Zambia at least to obtain a passport and seek a visit visa to the UK. Further, she is a citizen of Zambia and has shown that she can adapt and live and carry on her life in at least two other countries, namely Zimbabwe and the United Kingdom.
43. On the basis of that background evidence, as Mr Kotas acknowledged, there is a level of discrimination against women in a number of aspects of social life. The background material, however, in general demonstrates that the Zambian authorities have not been complacent. There are a number of laws prohibiting discriminatory practises and sexual violence. The authorities do take steps, in general, to enforce the law although not always fully adequately or with a perfect record of outcome.
44. Judge Fowell found, and his finding stands, that the appellant has not established “very significant obstacles” to her integration in Zambia. On the evidence before me, limited in the appellant’s favour in the light of the adverse credibility finding, I am not satisfied that the appellant has established that she would have no family, friends or connections in Zambia; that she would not be able to find employment and would not have adequate support in order to live in Zambia. The appellant has failed to establish that her circumstances would be one of poverty or destitution. She has raised no issue concerning her health.
45. I have fully taken into account all the background material to which I was referred set out above concerning the position of women in Zambia. Taking fully into account the appellant’s circumstances, I am not satisfied that there is a real risk that the Appellant on return to Zambia would face serious ill-treatment contrary to Art 3 of the ECHR.
46. For the same reason, the appellant cannot succeed in her Refugee Convention claim. She has failed to establish a well-founded fear of persecution. It is not, therefore, necessary for me to reach a view on whether the appellant would be a member of a PSG in Zambia.
Decision
47. Having set aside the First-tier Tribunal’s decision to the extent set out in my earlier decision dated 23 January 2017, I remake the decision dismissing the appellant’s appeal on asylum, humanitarian protection grounds and under Art 3 of the ECHR.
48. The decision of the First-tier Tribunal to dismiss the appellant’s appeal under Art 8 stands.

Signed

A Grubb
Judge of the Upper Tribunal

Date 27 March 2017