Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10941/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd September 2016
On 04th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

CSB
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Lee, Counsel for Wilson Solicitors, London
For the Respondent: Ms Z Ahmad, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sierra Leone born on 15th August 1996. He appealed the Respondent's decision dated 24th November 2014 refusing his application for asylum and humanitarian protection. His appeal was heard by Judge of the First-tier Tribunal Russell on 10th June 2016. He dismissed it on asylum and humanitarian protection grounds in a decision promulgated on 22nd July 2016.
2. An application for permission to appeal was made and permission was granted by Judge of the First-tier Tribunal Holmes on 20th August 2016. The permission states that it is clear that the judge had in mind the Appellant's age but what he failed to take as his starting point was that the injuries ordinarily inflicted during a Poro initiation rite would amount to a breach of the Appellant's Article 3 rights if he was required to undertake that rite. The permission states that the judge appeared to accept that the Appellant's family would not support the Appellant in avoiding these rites and this should have led to an analysis of whether the Appellant could avail himself of adequate state protection or internal relocation to avoid the risk of a forced initiation rite and whether as a result, in the absence of family support, the Appellant would, on return to Sierra Leone, be rendered destitute. The permission states that the judge's approach was confused and his findings unsafe.
3. There is a Rule 24 response on file. This states that what the judge had to decide was whether the Appellant would be subjected to initiation into the Poro on return to Sierra Leone and if so would this qualify him for humanitarian protection. The Rule 24 response states that the judge considered this and found that this was not achieved by the Appellant. The judge observes at paragraph 51 the appellant's maturity, education etc. and the response states that it is reasonable for the judge to conclude that because of this the Appellant would not become marginalised or part of the urban poor on return to Sierra Leone. The judge found that the Appellant's parents would not be able to find him in Freetown and that the Appellant could relocate internally. The response states that the judge reasoned this properly. The response also states that the judge considered sufficiency of protection and was unable to make a finding that the Appellant would not be able to avail himself of the protection of the authorities or that he would be unable to rely on the support of Muslim leaders. The response states that the Appellant failed to show he was in need of humanitarian protection and the judge was entitled to reach the decision he did.
The Hearing
4. Counsel went through his grounds of application for permission. He submitted that the judge erred at paragraph 48 of his decision when he stated that the Appellant's fear is the initiation into the Poro against his will and that the Appellant is young enough to be considered still part of his family although he has no contact with his parents any more. Counsel submitted that based on this paragraph the Appellant is member of a particular social group and the judge was wrong to find he is not. I was referred to the case of KA (Afghanistan) and Others [2012] EWCA Civ 1014 which, Counsel submitted, refers to a similar situation. He submitted that age is immutable.
5. Counsel submitted that the judge's assessment at paragraph 52 of the decision is unsustainable. I was referred to his submissions at the First-tier hearing and he submitted that based on the evidence the judge cannot say that the high threshold of Article 3 would not be met if the Appellant was initiated into the Poro against his will. I was referred to the document by the Refugee Documentation Centre in Ireland which gives information on forced initiation by all-male secret societies operating in northern Sierra Leone. This refers to torture and other cruel inhuman or degrading treatment or punishment and to men and women being forcibly initiated into tribal secret societies. The comparison is made with women involved in FGM and reference is made to Muslims being forcefully initiated into the secret Poro society. The article also refers to the Poro being supported by the police and the authorities.
6. Counsel then referred to Grounds 2 and 3 submitting that the judge had an inadequate approach to internal flight. He referred to paragraph 48 of the decision about risk in the Appellant's home area and he submitted that the judge accepts that he would be at risk there but the judge has not engaged with what would happen to the Appellant if he tried internal relocation with no family support. I was referred to the case AH (Sudan) and Others [2007] EWCA Civ 297 and Counsel submitted that it would be unduly harsh to expect the Appellant to relocate internally. When the Appellant came to the United Kingdom he was aged 13 and I was referred to general risk and the general conditions in Sierra Leone. He submitted that the judge has not engaged with these at all. Not only does the Appellant fear forced recruitment by the Poro, he fears abuse from his family. He also fears being destitute and living on the streets and the risks attached to that. He submitted that if the Appellant returns, he will have no familial support and no financial support. He is a young man who has been in foster care since he was aged 13.
7. Counsel then submitted that the judge has made an error relating to sufficiency of protection by the state. I was referred to paragraph 53 of the decision in which the judge states that based on the background evidence the Sierra Leonean authorities have limited scope when tackling secret societies but the evidence is insufficient to say they are unwilling or unable to protect the Appellant against the Poro. Counsel submitted that this is not enough and does not sit well with the judge's previous finding that the Appellant would be at risk from his parents.
8. Counsel submitted that the judge's decision is unsustainable and should be set aside.
9. The Presenting Officer submitted that the judge gave proper scrutiny to whether the Appellant's circumstances were enough for him to be considered a member of a particular social group. I was referred to paragraphs 25 and 32 of the decision. At paragraph 25 he refers to members of a particular social group having to share an innate characteristic or belief so fundamental to identity or conscience that they should not be forced to renounce it. It is also necessary for the group to possess a distinct identity in the relevant country because members are perceived as different by the surrounding society. At paragraph 32 he rejects that the Appellant fits this description. The judge states that there is no evidence that anything unites those who may be initiated into the Poro as those targeted for initiation include a very diverse group of men including members of different religions, ethnic groups, teachers, public servants and politicians. At paragraph 34 the judge refers to there being no common characteristics between those who oppose or are susceptible to initiation into the Poro. He states that those who oppose initiation into the Poro do not form part of a particular social group. She submitted that the judge was entitled to these findings.
10. With regard to sufficiency of protection and general risk on return the Presenting Officer submitted that the judge has considered the evidence properly at paragraphs 37 and 38 of the decision. She submitted that the judge clearly considered all the evidence about the Poro and what the Appellant's circumstances will be if he is returned to Sierra Leone. He found that the Appellant can relocate and will get support from Muslim groups who are against the Poro.
11. The Presenting Officer submitted that the judge has taken the Appellant's young age into account together with the fact that he has been in the United Kingdom since he was 13 and sensibly finds that he can use his education on return, to relocate.
12. I established that the judge believed the Appellant's account and that the appellant is now aged 20.
13. Counsel submitted that women fearing return to a country because of either domestic violence or FGM form part of a particular social group and he submitted that it follows that someone fearing initiation into the Poro must also be in a particular social group. This Appellant, on return to Sierra Leone, will be susceptible to forced initiation into the Poro.
14. I was referred to paragraph 51 of the decision in which the judge refers to the Appellant now being an adult. Counsel submitted that the Appellant's circumstances in the United Kingdom have to be considered. He has been in foster care since he arrived here and on return, for example to Freetown, he will have problems as there are 50,000 youngsters sleeping on the street there. The Appellant has now been away from Sierra Leone for seven years and he submitted that it would be unduly harsh for him to return.
15. Counsel submitted that the judge has accepted that the Appellant cannot return to his family in Sierra Leone. I was referred to paragraph 37 of the decision. He submitted that the background evidence on Sierra Leone is relevant and the judge has not properly analysed what will happen to the Appellant if he is returned there with no family support. He submitted that the judge falls foul in the same way as in the said case of KA (Afghanistan). Although the Appellant is now over 18 this does not mean he would be able to cope on return to Sierra Leone. He has not been there for seven years. He submitted that the judge has not given anxious scrutiny to the young man's asylum claim and he has not engaged with the Appellant's actual situation.
16. Counsel submitted that although the judge states that there is no evidence that the authorities in Sierra Leone would be unable or unwilling to protect the Appellant, the background evidence makes it clear that the Poro are very much involved with the authorities in Sierra Leone. It is unlikely that any initiation of the Appellant into the Poro would lead to help for him from the authorities.
17. Having considered the permission to appeal I asked about the Appellant arriving in the United Kingdom and how he managed to get here. I was told that this was dealt with at the First-tier hearing. The Appellant escaped from the adult who brought him to the United Kingdom on a visit and claimed asylum.

Decision and Reasons
18. The judge has found that the Appellant does not form part of a particular social group and so is not entitled to asylum in the United Kingdom. A woman fearing return to her own country because of the possibility of FGM forms part of a particular social group. Similarly a woman afraid to return to her own country because of domestic abuse forms part of a particular social group. Based on these examples the Appellant must be a member of a particular social group. The judge's reasons for his finding are based on the fact that the Poro is made up of people of different religions, ethnic groups, teachers, etc. Similarly the women in the above examples can be a very diverse group of women.
19. The Appellant, as a member of a particular social group, might well be entitled to asylum in the United Kingdom in his circumstances.
20. There was considerable background evidence provided for the First-tier hearing. I have the Appellant's bundle and the objective evidence makes it clear that many boys of the Appellant's age are initiated into the Poro, some of them against their will, and if they refuse to accept the initiation they are often beaten, treated badly and forced to join. There are many of these secret societies in Sierra Leone and the rituals involve the scarification of the body of the initiate. The initiation is severe and occasionally an initiate may die. Symbols of witchcraft are used to intimidate and people can be abducted and forcibly initiated. The background evidence states that secret societies are above the law, particularly the Poro. Youths are targeted to join and if they refuse the only alternative is to go into exile. It is stressed that the Poro have high connections in Sierra Leone. The background evidence states that to force someone like the Appellant to join the Poro is against his human rights.
21. The judge has accepted that the Appellant is likely to be in danger if he goes back to his family. For the judge to say that Muslim leaders oppose the Poro and are likely to help the Appellant is farfetched. The people supporting the Poro are powerful. The objective evidence points to there being no state protection for the Appellant on return.
22. With regard to internal flight this is an Appellant who has been in the United Kingdom in foster care since he was 13 years old. Based on this he is not going to be equipped to deal with life on his own in Freetown where there are thousands of young people living on the streets. It is true that he has been educated in the United Kingdom but nothing is going to prepare him for the shock of returning to somewhere like Freetown on his own with no familial support. There must be a real risk of him becoming destitute based on the background evidence.
23. The judge's reasoning is not sufficient. He has not properly considered the background evidence. If the Appellant is at risk from his parents he is also going to be at risk if he is returned on his own in Freetown.

24. The judge's decision is unsustainable based on the evidence before him.
Notice of Decision
25. There are material errors of law in the judge's decision. His decision, promulgated on 22nd July 2016, must be set aside.
26. No findings of the First-tier Tribunal can stand. Under Section 12(2)(b)(i) of the 2007 Act and Practice Statement 7.2 the nature and extent of judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal. The members of the First-tier Tribunal chosen to reconsider the case are not to include Judge Russell.

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 him 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.

Signed Date 04th October 2016

Deputy Upper Tribunal Judge I A M Murray