Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11635/2014

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 1 November 2016
On 11 November 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

f b
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M McGarvey of McGarvey Immigration & Asylum Practitioners Limited
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. The direction is imposed in the interest of the appellant and her daughter. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
2. The appellant is a citizen of Sierra Leone who was born on 3 May 1979. She arrived in the United Kingdom on 5 May 2007. On 4 April 2013, the appellant claimed asylum. The basis of her claim was (and is) that she has undergone female genital mutilation (FGM) and that on return to Sierra Leone she fears that her daughter ("J") would be subject to FGM and also that she (the appellant) would be forced to work as a 'Sowei', which is the member of the Bondo society which undertake circumcision, as her aunt is currently the Sowei in her home village.
3. On 11 December 2014, the Secretary of State refused the appellant's claims for asylum, humanitarian protection and human rights. On that date, the Secretary of State also made a decision to remove the appellant as an overstayer under s.10 of the Asylum and Immigration Act 1999.
The Appeal to the First-tier Tribunal
4. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 9 December 2015, the First-tier Tribunal (Judge R E Barrowclough) dismissed the appellant's appeal on all grounds.
5. Although the judge made an adverse credibility finding against the appellant, he accepted that she could not return to her home village as her daughter, J was at risk of FGM because the appellant's aunt was the local Sowei.
6. Judge Barrowclough, however, found that the appellant could safely and reasonably relocate to Freetown. The judge was not satisfied that there was a real risk that the appellant would be forced to become a Sowei or that her daughter, J would be subject to FGM there. Further, the judge found that it would not be unduly harsh to expect the appellant to relocate to Freetown with her daughter.
The Appeal to the Upper Tribunal
7. The appellant sought permission to appeal to the Upper Tribunal on a total of seven grounds. On 12 January 2016, the First-tier Tribunal (Judge Pullig) granted the appellant permission to appeal on all grounds.
8. On 19 January 2016, the Secretary of State filed a rule 24 response seeking to uphold the judge's adverse credibility finding and conclusion that the appellant could safely and reasonably relocate to Freetown.
9. Thus, the appeal came before me.
The Appellant's Grounds
10. The appellant was granted permission on the seven grounds set out in her application for permission to appeal. Those grounds are, to some extent, overlapping but may be summarised as follows:
(1) The judge was wrong to attach "little if any weight" to the appellant's evidence and to find her not to be credible.
(2) The judge applied an incorrect standard of proof when he stated that the appellant must establish there is a "real and significant risk" that her daughter, J would be the victim of FGM in Freetown.
(3) The judge wrongly required the appellant's evidence to be corroborated when he said at paragraph 17 of his determination "I am inclined not to accept anything she says as being true, save where it is unimpeachably corroborated".
(4) The judge failed properly to consider the expert evidence of Dr Harrell-Bond.
(5) The judge wrongly applied the case of FB (Lone Women) Sierra Leone [2008] UKAIT 00090.
(6) The judge failed to consider fully the available evidence, in particular in citing from the Home Office, Country of Origin Information Response dated 30 September 2015.
(7) The judge wrongly failed to consider the appellant's claim under Art 8 which was raised in the grounds of appeal.
Discussion
11. Although the judge found the appellant not to be credible, he did accept that her aunt was a practising Sowei in her home village and that the appellant's daughter, J would be at risk of FGM if she and the appellant returned there (see para 18 of the determination).
12. At para 18, the judge identified what he described as the "real issue for determination" as being:
"Whether it has been established that it is unfair and/or unreasonable for them to be returned to any part of Sierra Leone, either because the appellant will be forced into the role of Sowei, or because there is a real and significant risk that [J] will become a victim of FGM."
13. Central to the appellant's claim was the expert report of Dr Barbara Harrell-Bond dated 31 August 2015. Dr Harrell-Bond's report is, as the judge described, a lengthy document. In addition to her initial report (at pages 60-128 of the appellant's bundle), there is a twenty-page addendum report dated 24 November 2015. Both reports are, it is fair to say, supportive of the appellant's claim both as to its factual veracity but also as to the risk to her and her daughter in Sierra Leone. Dr Harrell-Bond is of the opinion that the appellant could not safely and reasonably return to Freetown where she would be at risk of being initiated as a Sowei and her daughter, J would be at risk of being forced to undergo FGM. Dr Harrell-Bond expresses the opinion that the appellant is uneducated, illiterate and has never been gainfully employed and, as a consequence, in the absence of a family or network of friends would be forced to live "a life of destitution upon her return to Freetown". Dr Harrell-Bond expresses the opinion that the Bondo societies were becoming "more common not less powerful".
14. Dr Harrell-Bond's report is, however, somewhat unusual. The appellant's representative at the First-tier Tribunal accepted that it was "unorthodox". Not only does the report set out, in the usual way, country background information together with the expert's opinion of what, if any, risk there would be to the individual, Dr Harrell-Bond also engaged in some investigative work. In particular, she engaged a student ("LS") to undertake visits to the appellant's claimed home village and report back. She did so confirming the appellant's account, in particular that she had an aunt who was the Sowei.
15. In his determination, the judge identified a number of issues with Dr Harrell-Bond's report which led him, ultimately, to give little or no weight to it. The judge's reasons are at paras 20-24 of his determination as follows:
"20. The first thing to be said about Dr Harrell-Bond's work is that it is immensely long. It runs in total to 112 pages, including appendices, of which 21 pages are the Doctor's 'expert witness statement' (as she terms it), while many of the appendices contain her work as well, or at least extensive comment from her; quite apart from the additional 'Addendum' of 21 pages prepared by her in November 2015, which is annexed to Ms Morgan's skeleton argument. Secondly, it is not entirely clear whether it is in fact a witness statement or an expert report. On the one hand, there is the usual expert's attestation clause (at page 18 in the 'subjective' bundle), reciting her duty to the court rather than a party, with which she believes she has complied. Additionally, Dr Harrell-Bond is a retired academic, rather than anyone personally involved in the circumstances of the case, and her evidence is essentially opinion evidence, based upon what the Appellant or others have told her or upon her own knowledge and experience. On the other hand, Dr Harrell-Bond has undertaken a number of steps, including commissioning one if not more field trips in Sierra Leone and contacting interviewing and corresponding with a large number of people, whether potential helpful sources or authorities in the field or friends of the Appellant, which fall outside the usual ambit of an expert and are more akin to conducting an investigation. Since the Doctor did not come to the appeal hearing (I don't believe she was asked to attend), it was not possible to try to resolve these matters in oral evidence. That is perhaps unfortunate, since the status or nature of Dr Harrell-Bond's involvement in the appeal is important, and goes beyond mere semantic differences between a witness statement and an expert's report.
21. What Ms Jefferies highlighted in her closing submissions, and what concerns me, are problems with the methodology and approach adopted. For example, some of the most significant opinions and conclusions Dr Harrell-Bond comes to depend on the reports prepared by a young student in Sierra Leone called LS, who was commissioned by the Doctor and undertook two field trips to the Appellant's village in August 2015, meeting amongst others the Appellant's elder children and her aunt. The resulting reports, which are heavily relied upon by Ms Morgan in her skeleton argument, are in the subjective bundle at pages 52 to 54. We are not told of LS's qualifications or fitness to undertake this task, whether she had previous experience of similar undertakings, and how and when she recorded and transcribed what she did and the conversations that took place. That is at least potentially important, since in the middle paragraph on page 53, a recorded statement from the Appellant's aunt is quoted, which was subsequently interpreted (by Dr Harrell-Bond) as a threat by the Appellant's aunt that the Appellant must become a Sowei, or apparently face serious violence; albeit there is nothing in the report to indicate that the Appellant's aunt was then still operating as a practising Sowei. As Ms Jefferies pointed out, there is no means whereby the Tribunal can assess or weigh that evidence - it either has to be taken on trust or rejected. Additionally I note that LS states that her mother's maiden name is [B], and that a Ms FS is given as godmother of the Appellant's daughter J (D8 in the Respondent's bundle). Without necessarily impugning LS's work, there are obvious potential links between her and the Appellant, but we are not told whether or not she is a relation or otherwise known to the Appellant, which is of obvious potential significance. This is only one of a considerable number of instances where the Tribunal is asked to accept the bona fides and the views or accounts - inevitably hearsay - of third parties, with little if anything provided to enable it to assess that material.
22. Secondly, the statements and opinions of others contacted by Dr Harrell-Bond are unsupported, in the sense of the relevant emails or letters being disclosed; and once again the Tribunal is asked to accept them without further ado or enquiry. A good example is the footnote at page 24, where a number of third parties views of the significance of the Appellant's tattoos are quoted (albeit incompletely in one instance) with approval. Since the tattoos might indicate the Appellant's fitness as a future Sowei, that is obviously a significant issue; but as before, there is no means to assess the weight of this hearsay evidence.
23. Of perhaps even greater concern, it seems that Dr Harrell-Bond may have fallen into the trap of espousing and championing the Appellant's case, rather than just assisting the Tribunal with a detached expert opinion. On page 27, she states: 'All the evidence that I have gathered demonstrates that the Appellant applied for asylum the moment she learned about it's provision, and willingly registered herself with the Home Office. This followed what can only be described as an incredibly long period of intense suffering and insecurity by an illiterate woman who could only communicate in Krio with those random Sierra Leoneans whom she chanced to encounter ?". With respect to Dr Harrell-Bond, that has not in fact been demonstrated, in my view; and in any event is a matter for the Tribunal, rather than her. On the following page, she continues: 'Some four months later, due to accusations of having an affair with A, she is rendered homeless and her period of wandering begins. This period becomes even more poignant when one considers that at about this same time (the Appellant learns that EL has died)'. Also on that page, an email from a friend of the Appellant's about their time together is quoted approvingly and put forward as corroboration of the Appellant's account, without the document being disclosed.
24. From the history of her qualifications, Dr Harrell-Bond founded and directed the Refugee Studies Centre at Oxford University from 1982 to 1996, when she retired. Since then, she has undertaken further research and work in refugee studies, both in the UK and abroad, as she sets out at page 17. She is an Honorary Fellow of Lady Margaret Hall, has received numerous awards, particularly in the field of anthropology, and in 2005 an OBE for her contributions to refugee studies. Distinguished though she undoubtedly is, I have not, I'm afraid, found her statement helpful in determining the issue of whether the Appellant and her daughter can be returned safely to any part of Sierra Leone. That is for the reasons already set out, and I have to agree with Ms Jefferies' criticisms of partiality, lack of objectivity, and an excessive unsupported reliance on third parties. In addition, it seems to me that a good deal of the reported research and other studies Dr Harrell-Bond cites is by no means recent, and possibly outdated; and having helpfully included the Upper Tribunal determination of FB in her appendices, it is slightly surprising that it is only in the recent Addendum that she comments on that determination at length and, in effect, submits that it should not be followed, once again more in the role of an advocate than in providing assistance to the Tribunal. All this, in my judgment, significantly devalues and undermines her evidence as an expert witness. Finally, particularly since Dr Harrell-Bond has given expert evidence in the past, it is not unreasonable to expect to see the email apparently received from Dr Fanthorpe, an expert witness in FB, in its entirety."
16. There are, in my judgment, a number of difficulties with the judge's approach to this report.
17. First, I accept that the judge was entitled to draw a distinction between the "expert" evidence offered in the two reports and the factual evidence given in the report, in particular as a result of the enquiries of LS. Only the former was expert evidence. The latter was factual evidence relayed by the expert (but not based on her expertise) from, for example, the investigations carried out on the expert's behalf by LS. Of course, experts frequently gain first-hand experience of the country conditions of the country in respect of which they are an expert. That, together with other objective background evidence, usually forms the basis for their expert opinion. The evidence obtained, for example, by LS did not fall into that category as it was evidence specific to the appellant's claim and was, therefore, to be assessed, not as expert evidence or opinion, but as primary evidence.
18. However, I do not agree with the judge's view that, having taken this somewhat unusual course, Dr Harrell-Bond's expert evidence was as a whole to be discounted. At para 23, the judge 'cherry picks' statements made by Dr Harrell-Bond which the judge relies upon as demonstrating that the expert was "espousing and championing the appellant's case" rather than providing a detached and expert opinion. Even if those passages could be said, in themselves, to be of such character, reading Dr Harrell-Bond's two expert reports as a whole, it is clear to me that she remains on the objective side of the line, consistent with her obligations as an expert, rather than descending, in effect, to be an advocate for the appellant. Likewise, the fact that Dr Harrell-Bond, rather unusually, sent a researcher to investigate the background to the appellant's claim, does not in itself properly lead to the conclusion that the whole of Dr Harrell-Bond's "expert" opinion should be disregarded. As the judge points out in para 24, Dr Harrell-Bond is clearly an expert in the relevant field. Her reports engage with her own background knowledge and those of others in assessing, for example, the risk to the appellant and her daughter in Freetown together with the issue of whether they could reasonably relocate there.
19. Secondly, the judge's criticism in para 21 of his determination that postulates that there may be a relationship between LS, the researcher acting on behalf of Dr Harrell-Bond, and the appellant's family had no evidential foundation. It is based upon LS identifying her mother's maiden name as the same as the appellant's and that a person with the same surname as LS being the godmother of the appellant's daughter. This does not appear to be an issue which the judge raised at the hearing. There is no evidence whether the names were common or unusual in Sierra Leone and so could suggest a conflict of interest or potential bias by LS in carrying out her research. It was not, in my judgment, a point that the judge could validly take without first raising it with the parties and there being some evidence that would justify a reasonable inference that it was not coincidental that the individuals had the same surnames.
20. Thirdly, in para 20, the judge, whilst recognising the importance of Dr Harrell-Bond's evidence, expresses regret that she was not called to give evidence and to resolve (if possible) some of the issues which the judge saw in relation to her reports. Again, it was not suggested before me that this was a point raised by the judge at the hearing. It is relatively unusual for an expert to be called to give oral evidence outside of the context of a country guidance case. It does occur from time-to-time but, without notice that either the respondent or judge considers that it would assist to have an expert give oral evidence, invariably the expert will not attend to do so. Here, in my judgment, it was wrong for the judge, in effect, to look adversely upon Dr Harrell-Bond's evidence on the basis that she had not been called to give oral evidence.
21. For these reasons, in my judgment, the judge failed properly to consider Dr Harrell-Bond's two substantial reports supportive of the appellant's claim. I do not intend to suggest that the judge was bound to accept what was said in the expert report or, of course, to accept the primary evidence relayed through the report from LS. Although, it is, perhaps, noteworthy that the judge accepted that the appellant's aunt was the Sowei in her village. What I do say, however, is that the judge was not entitled to give it no weight on the basis of the reasons, which I have set out above as being unsustainable, and contained in paras 20-24 of his determination.
22. Dr Harrell-Bond's report was highly relevant to the issues of the risk in, and reasonableness of return to, Freetown; in other words, the issue of internal relocation. In that regard, the judge based his decision upon the case of FB. That case is not a country guidance decision and dates back to 2008. Both parties put more up-to-date material before the judge, including the Home Office, Country of Origin Information Response dated 30 September 2015. That cites a number of documents in response to the question being posed of whether a single mother from Freetown who was opposed to FGM would be able to protect her young daughter from that practice. The document offers no conclusions but was cited with approval by the judge in para 26 as supporting his finding. Of course, in doing so he had effectively put to one side Dr Harrell-Bond's report. He specifically referred to it in para 26 as one from which he did not derive "any great assistance". In fact, it is clear that the judge derived no assistance from it. In my judgment, the risk to the appellant's daughter and the reasonableness of return to Freetown required a proper consideration of Dr Harrell-Bond's reports and required the judge to engage with those reports when considering the case of FB and its application by analogy to the appellant and her daughter's circumstances.
23. In the light of my conclusion concerning the judge's mistreatment of the expert reports of Dr Harrell-Bond, it is not necessary to deal with the remaining grounds challenging the judge's adverse decision on the appellant's asylum and humanitarian protection claim. Some of those grounds appear to have little merit when the Judge's determination is read as a whole (Ground 2 - applied the wrong standard of proof; Ground 3 - improperly required corroboration of the appellant's evidence). However, I need express no concluded view because the judge's failure properly to consider Dr Harrell-Bond's reports (and FB in the context of those reports) means that his decision to dismiss the appellant's international protection claim involved the making of a material error of law and must be set aside. The error taints the entirety of the judge's adverse findings, including his adverse credibility finding. There are obvious difficulties, which the judge identified, in the appellant establishing her credibility but any finding in that regard should take into account, more fully than the judge does, Dr Harrell-Bond's reports.
24. That then leaves the judge's finding, in the appellant's favour, in para 18 that her daughter, J is at risk of FGM in her home area where the appellant's aunt is a practising Sowei. The judge made those positive findings despite his otherwise adverse view of the appellant and Dr Harrell-Bond's reports. I see no reason to deprive the appellant of those positive findings.
25. Consequently, the outstanding issue as regards the appellant's international protection claim is whether she can safely and reasonably internally relocate to Freetown.
26. In relation to that, it is likely that the appellant's credibility as well as a detailed consideration of the background evidence and expert reports will be crucial. Given the extent of the evidence and fact finding required, despite Mr McGarvey's request that this appeal remains in the Upper Tribunal to be remade, I am satisfied that the appropriate disposal of the appeal is to remit it to the First-tier Tribunal to decide the issue of internal relocation, in the light of the preserved positive finding about risk in her home area, based upon all the evidence.
27. In addition, the appellant did raise Art 8 in her grounds of appeal although there does not appear to have been any reliance upon Art 8 at the hearing. That, of course, forms the substance of ground 7 of the appellant's grounds of appeal. In view of the fact that the appeal is to be remitted to the First-tier Tribunal, the issue of Art 8 remains open if the appellant seeks to rely upon it before the First-tier Tribunal.

Decision
28. For the above reasons, the First-tier Tribunal's decision to dismiss the appellant's appeal involved the making of a material error of law. The decision is set aside.
29. The appeal is remitted to the First-tier Tribunal to be heard by a judge other than Judge R E Barrowclough. The decision is to be remade on the basis set out above in paras 23-28.

Signed

A Grubb
Judge of the Upper Tribunal

Date: