Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa 107292012

THE IMMIGRATION ACTS

Heard at North shields
Determination Sent
On 14 May 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

SEJALBEN MANIBHAI PATEL
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1. The respondent, Sejalben Manibhai Patel, was born on 15 September 1980 and is a female citizen of India. For the remainder of this determination, I shall refer to the respondent as the “appellant” as she was before the First-tier Tribunal and referred to the Secretary of State as the “respondent”.
2. The appellant arrived as a visitor in the United Kingdom on 18 September 2005. Her visa expired on 9 March 2006. An application by the appellant and her daughter to remain outside the Rules on human rights grounds was refused on 23 September 2011 and on 15 October 2012, the appellant (with her daughter as a dependant) claimed asylum in the United Kingdom. Her claim was refused and a decision made to remove her on 19 December 2012. The appellant appealed to the First-tier Tribunal (Judge Caswell) which, in a determination dated 14 February 2013, allowed the appeal on humanitarian protection and human rights grounds (Article 3 ECHR). The asylum appeal was dismissed. The Secretary of State now appeals, with permission, to the Upper Tribunal.
3. Judge Caswell found that the appellant had a genuine fear of returning to India where she believed that her husband/partner (Anandkumar) and his family would seize or kill her child (date of birth: 5 April 2011). She also fears that her own family would kill her because she had “entered into a love marriage”. The judge found that there would be insufficient protection available from the Indian authorities. The judge found [25] that
“All women in India [do not] face a real risk of persecution on grounds of their gender and there was insufficient evidence for me to conclude that lone parents or failed love relationships consider themselves a distinct group which shared characteristics. For these reasons, I do not conclude that the appellant is a refugee but do conclude that her appeal succeeds on the grounds of human rights and entitlement to humanitarian protection”.
4. The grounds of appeal also assert that the judge failed to resolve a conflict:
A crucial part of the Secretary of State’s case is that the appellant was married in India prior to coming to the UK and that she is not married in a Hindu ceremony in the UK. The judge at paragraph 14 appears to accept the appellant’s evidence that an agent filled out the VAF and that she was unaware of its contents in relation to her being married but makes no specific findings. It is respectively submitted the judge failed to factor into her consideration evidence which demonstrated that the person who applied for a visit visa as her husband in 2005 along with the appellant was encountered by UKBA in 2009. The appellant was such a trustworthy, educated person (paragraph 16) why would false representations need to be made in her Visa Application Form regarding her marital status. The judge in her analysis of the evidence has failed to take this into consideration and it is respectively submitted has failed to resolve this conflict.
The judge accepts at paragraph 14 that she has photographs and letters which support the appellant’s claim of a Hindu marriage ceremony in the UK yet she fails to make a clear finding as to whether or not she finds the appellant would be considered as a married woman having undergone a Hindu ceremony. Instead she finds at paragraph 17 that the appellant’s daughter would be viewed as illegitimate and at paragraph 21 the appellant would be a young woman with a child out of wedlock. If she is, in fact, married then how would she be viewed this way by Indian society on return? It is respectfully submitted the judge has failed to consider the evidence as a whole and has instead analysed parts of it which has resulted in a failure to resolve a conflict in respect of a material fact in relation to the appellant’s claim.
5. At [14], Judge Caswell noted that the appellant had paid an agent to complete her Visa Application Form (VAF). In that form it is claimed that the appellant was married to a man called Maheshkumar Manubhai Patel. The appellant said that she was not and had never been married to this or any other man when she entered the United Kingdom. The judge found [17] that the evidence as a whole and the consistency of the appellant’s central account of past events, led her to believe that the appellant was an “effective and reliable witness who was credible as to the basic aspects of her claim”. The judge went on to find that:
I accept her account that she persuaded her parents to let her come to the UK for a visit for one month, and took up with Anandkumar, living with him and having a child with him, despite the fact he was already married with a son. I find that, after the application to stay outside the Rules failed, Anandkumar left the appellant to take up with another woman. Given the background evidence from both parties on conditions in India and cultural issues I also accept that, if she were to return to India with what would be seen as an illegitimate daughter, the appellant would face rejection and the risk of serious ill-treatment from both her own family and that of Anandkumar. [my emphasis]
6. By the appellant’s own account, she has entered into a Hindu marriage with Anandkumar in the United Kingdom. The judge has not explained why, if the appellant had contracted a Hindu marriage with Anandkumar, the child of their relationship would be regarded in India as illegitimate. However, as became apparent during the course of the Upper Tribunal hearing, the problems with the judge’s findings at [17] go further than that. In the quotation of paragraph of [17] set out above, I have first highlighted the judge’s finding that the appellant chose to live with Anandkumar and have a child with him “despite the fact he was already married with a son”. I asked both the representatives to show me where, in the evidence before the First-tier Tribunal, there is any indication at all that Anandkumar had been married before he met the appellant. Neither representative was able to show me where Judge Caswell had derived that information. Mr Saleem said that he believed that Anandkumar had been married and then divorced but he was unable to refer to any evidence. Obviously, if Anandkumar had been married and then purported to marry the appellant the possibility arises that their relationship was polygamous (or bigamous). It also seems possible that Judge Caswell has found that the child of the relationship is illegitimate because Anandkumar was married to another woman from whom he is not divorced but, once again, that observation, in the absence of any evidence to support it, is merely speculative.
7. I find that Judge Caswell has based her assessment of the risk to this appellant upon an incomplete and possibly inaccurate factual matrix. The problems with the judge’s assessment of the evidence which I have identified above go to the core of the appellant’s account. Without clear and accurate findings of fact, it is not possible properly to access the risk this appellant may or may not face if she returns to India. I also agree with respondent that Judge Caswell has dealt inadequately with the very serious doubts cast over the appellant’s credibility by her untruthful VAF application form. The judge was not bound to find that the appellant was an unreliable witness simply on account of the contents of her VAF but I do consider that she should have tackled more thoroughly the doubts that had been cast over her credibility.
8. Because I have found that the factual matrix established by Judge Caswell is seriously flawed, it is necessary to set aside the First-tier Tribunal’s findings of fact. It will be necessary for the case to be heard again and for new findings to be made. I consider that it would be more appropriate, in the light of the quantity of oral and documentary evidence to be considered, for the decision to be remade in the First-tier Tribunal and direct that it is remitted to that Tribunal accordingly.
DECISION
9. The determination of the First-tier Tribunal which is dated 14 February 2013 is set aside. I direct that the appeal be remitted to the First-tier Tribunal to remake the decision (not Judge Caswell).

Signed:

Upper Tribunal Judge Clive Lane

2 June 2013