Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10514/2012

THE IMMIGRATION ACTS

Heard at Glasgow
Determination promulgated
on 3rd June 2013
On 5th June 2013

…………………………………

Before

upper tribunal JUDGE MACLEMAN

Between

Ndey Njie Nyang
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr A Bradley, of Peter G Farrell, Solicitors
For the Respondent: Mr M Matthews, Senior Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a citizen of Gambia, born on 13th August 1989. The Respondent refused her asylum claim for reasons explained in a letter dated 14th November 2012.
2. First-tier Tribunal Judge Morrison dismissed the Appellant’s appeal for reasons explained in his determination dated 9th July 2013.
3. The Appellant sought permission from the First-tier Tribunal to appeal to the Upper Tribunal, on grounds which may be summarised thus:
(1) The judge accepted that the Appellant became pregnant to her boyfriend and was refused family permission to marry him, and that this caused her difficulties. The judge failed to make findings on what the difficulties would be.
(2) The judge said at paragraph 19 that the Appellant gave detailed responses to the Respondent’s credibility criticisms, and that her credibility was not materially damaged by cross-examination of more than an hour. This contradicted his finding at paragraph 30(ii) that the Appellant did not give a satisfactory explanation of being found by her mother. The judge also overlooked that the Appellant’s evidence was that her mother did not know where she was.
(3) The judge gave no weight to the bank loan agreement, but a copy of this was on headed bank notepaper and thereby authenticated.
(4) The judge did not accept that the Appellant’s boyfriend would return to repay a loan, firstly because the boyfriend could have claimed asylum, but that overlooked that there was no evidence that he was at risk, all the evidence being “in the opposite direction”. Secondly, the residence of the Appellant’s boyfriend in his own property would not prevent him raising finance over his parents’ property.
(5) The judge erred at paragraph 28 by inferring “from the Appellant stating at interview that she had not heard from her boyfriend and that he did not tell her about problems, that she was indicating that she had in fact heard from him…”; the inference drawn by the judge is wholly unreasonable.
(6) The judge erred at paragraph 30(i) by ignoring an explanation given by the Appellant of how she succeeded in escaping.
4. The First-tier Tribunal refused permission to appeal. The Appellant renewed her application to the Upper Tribunal, relying on the original grounds and further submitting that at paragraph 29 the judge erred by referring to lack of a supporting statement from overseas, a point not raised in the refusal letter or at the hearing. The Appellant offers to provide a statement from her boyfriend. (Such a statement is attached to the grounds, although there was no reference to it at the hearing.)
5. On 9th April 2013 a judge of the Upper Tribunal granted permission to appeal:
In light of the finding of the First-tier Tribunal Judge that the Appellant, a Muslim woman, was pregnant by her boyfriend, whom her mother refused permission for her to marry when she left Gambia (and she has since given birth while in the UK) it is arguable that the judge made an error of law in failing to make a finding upon whether on these facts she would be at real risk of serious harm on return. It is on this ground principally that I grant permission … but, without wishing to raise the hopes of the appellant unduly, I am prepared to allow all the grounds to be argued.
6. Mr Bradley relied upon both sets of grounds. He submitted that the judge had found that the Appellant would face difficulties on return, but had not explained what these difficulties might be. The reader was left in doubt as to whether such difficulties might amount to persecution, and it was the duty of the judge to spell that out. If error were established, Mr Bradley then sought to rely upon an expert report by Dr G Knorr of the Max Planck Institute for Social Anthropology. This report concludes that as a Muslim and Serer single woman who has engaged in sexual relationships outside marriage and has a child born out of wedlock, the Appellant and her son would face manifold dangers upon return to Gambia, including expulsion from her family or forcible marriage, most likely as a second or third wife of an older man. Should she marry her boyfriend, who is Fula, there would be a severe danger of enforced FGM.
7. Mr Bradley further argued that the judge had been impressed with the oral evidence of the Appellant and found that it had not been damaged in cross-examination, and so contracted himself by making findings against her. He overlooked that the bank documentation was on headed notepaper, which then coloured his adverse credibility findings. There was no reason why the Appellant’s boyfriend should not live at one address yet borrow against another property. The judge should have reached favourable credibility findings. Once error was found and the expert report admitted, the Appellant made out her case, and a decision should be substituted in her favour.
8. Mr Matthews submitted that ground 1 (of the first set of grounds) made too much of what the judge actually said. The judge accepted that the Appellant had difficulties with her mother, which was far from finding that these amounted to persecution or that similar difficulties would follow on return to Gambia. The judge found that the Appellant’s mother refused her permission to marry, but not that her situation forced her to flee Gambia. Paragraph 29 of the determination disclosed that the Appellant’s evidence was that she was in contact with her boyfriend, and that he was at home, encountering no apparent problems from the family of the Appellant. The evidence did not suggest that such circumstances as the Appellant succeeded in establishing made out a risk of persecution. Ground 2 also sought to magnify what the judge said. The judge recorded that the Appellant made detailed responses to the refusal letter and that her responses in cross-examination did not materially damage her credibility. It did not follow that all her evidence had to be found entirely credible. There was no contradiction between these observations and the final conclusion at paragraph 32 that the account was a fabrication. The judge was entitled to reach that conclusion, and gave good reasons for it. On ground 3, the observations the judge made about the loan documentation were all correct. That he did not record that the agreement was on headed bank notepaper was neither here nor there. The judge’s conclusion that the loan agreement “neither adds to nor detracts from the Appellant’s credibility” was justified. On ground 4, it was plain that if a risk arose it was also likely to affect the Appellant’s boyfriend. The judge did not say that the Appellant’s boyfriend could not borrow against a property where he did not live. His material point was that he did not find it credible that if the boyfriend went to the trouble of obtaining a loan for himself and the Appellant to come to the UK, funded by his father’s title deeds, he would have remained in the UK for four days and then returned to Gambia. On ground 5, the judge was correct to find that the Appellant had been in telephone contact with her boyfriend, because that was what she said. Ground 6 was only an insistence on the Appellant’s account of her escape, and disagreement with another conclusion which the judge was entitled to reach. The set of grounds presented to the Upper Tribunal raised only one new substantial point. As far as that was concerned, it had been for the Appellant to make her case, and the judge was entitled to comment on obvious gaps in the evidence such as the lack of evidence from her boyfriend. If the decision were to be remade, there would have to be a fresh investigation of the facts, and the expert report could not by itself enable the Appellant to succeed. The report left out of account that the Appellant remains in touch with her partner who was not shown to suffer from any problems, and who could live with her where he presently resides, or elsewhere in Gambia, if need be. She would not then be in the position of a single parent but of one who has a partner who has the material ability both to send her to the UK, and to support her and the child in Gambia.
9. Mr Bradley in response reiterated as to ground 1 that the judge failed to ask the logical next question from a finding that there had been difficulties, which was whether these would resume and whether they would amount to persecution. Once the point of establishing an error had been reached, the expert report became admissible and the claim was made out. Although the Presenting Officer now said it could be defeated by the Appellant reuniting with her partner, that overlooked that the report stated that marriage to her partner would involve a risk of enforced FGM, a matter of which the Appellant might very well be unaware.
10. It became common ground that paragraph 32 of the report should have the word “not” added, so as to read:
“She may well not know this as girls/women who belong to ethnic groups who do [not] practise FGM as commonly as most other groups … are often not made aware of the fact that they will likely have to undergo FGM upon marriage to a man belonging to an FGM practising group …”
11. I reserved my determination.
12. The Appellant put her case to the respondent and to First-tier Tribunal on alleged risk from her family, not on general risk to an unmarried mother, and not on risk of coerced FGM. These matters are not to be found in her grounds of appeal to the First-tier Tribunal, in the submissions recorded in the First-tier Tribunal, or even in the grounds of appeal to the Upper Tribunal. The Appellant has been represented throughout. It was not for the judge to identify and consider these matters on his own initiative. Nor was it for the judge to elaborate further on such family difficulties as he accepted (ground 1). Reading his determination fairly and as a whole, he plainly did not find these to amount to past persecution or to disclose relevant risk on return. Having observed that the Appellant provided a detailed response to the Respondent’s points and was not shaken in cross-examination, he still had to evaluate her case (ground 2). The heading on the loan documents did not have to be mentioned, and changes nothing (ground 3). The Appellant’s boyfriend was plainly likely to be affected by a risk to her such as alleged (ground 4). The Appellant said that she was in touch with him (ground 5). The criticism of the rejection of the appellant’s account of escape focuses on a weak reason, her early pregnancy, but ignores the other reasons given at paragraph 30 (i), such as the unlikelihood of the situation and of her explanation, and the alleged proximity of likely pursuers (ground 6). On the further point to be found in the second set of grounds, the appellant did not provide a statement from the obvious witness, her boyfriend. The judge was entitled to take that into account - see, for example, the Immigration Rules, paragraph 339L. It was for the Appellant to put her case, and for the judge to evaluate it. There was no requirement of fairness that she be put on notice to improve her case, particularly where she had legal representation.
13. The grounds are selective disagreement with conclusions which the judge was entitled to reach, for reasons he has more than adequately explained.
14. The determination of the First-tier Tribunal shall stand.
15. No anonymity order has been requested or made.

4 June 2013
Upper Tribunal Judge Macleman