Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11637/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th July 2016
On 8th August 2016

Before:

DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:

Miss K.
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Neal, Counsel
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This the Appellant's, Miss K's, appeal against the decision of First-tier Tribunal Judge Ross promulgated on 25th May 2016 in which he dismissed the Appellant's appeal on asylum and human rights grounds.
2. The Appellant is a citizen of Sierra Leone. It is the Appellant's case that if she is returned she will be killed for refusing to carry out female genital mutilation, FGM, having inherited her mother's title of Sowei following her mother's death on 10th July 1995, which involved initiating people into the Bondo and Sowei societies which would involve her being forced to perform FGM on them but she says that she has since 2010 campaigned against FGM.
3. In his decision First-tier Tribunal Judge Ross accepted at paragraph 22 that the Appellant had been made Sowei following the death of her mother and had subsequently become opposed to FGM and he indicated that he found that it would not to be safe for her to return to her home area. Although the judgement does not specify what is meant by 'her home area' I take that to be, as is said by the Appellant within the Grounds of Appeal, returning to Moyamba.
4. However Judge Ross then went on to make adverse credibility findings about the Appellant in relationship with her husband and daughter at paragraph 23 and went on to then consider whether or not the Appellant would be able to relocate to Freetown in safety. The judge considered following the case of FB (Lone women PSG relocation) Sierra Leone [2008] UKAIT 00090 that the Appellant could safely relocate with her husband to Freetown and dismissed her appeal on asylum, human rights and humanitarian protection grounds.
5. The Appellant has now sought to appeal against that decision and permission to appeal has been granted by Designated Immigration Judge McCarthy on 23rd June 2016. Judge McCarthy indicated that on 13th June 2016 the Appellant applied to amend the Grounds of Appeal and that he admitted the amended Grounds of Appeal and considered those alone.
6. Within the Amended Grounds of Appeal it is argued in the first ground of appeal that the First-tier Tribunal judge failed take account of relevant evidence. It is argued by the Appellant that when considering whether or not the Appellant could safely relocate to Freetown that the judge had failed to take account of the Appellant's own evidence of the problems that she had previously experienced when living in Freetown herself, namely her evidence that in 2012 Sowei women had come to her house in Freetown to attack her and she was forced to leave the house for her family's safety and that stones were thrown at the house, and that further that on another occasion when she staying with her cousin in Freetown Sowei women threatened to burn the cousin's house, as a result of which she was forced to leave.
7. It is argued that the distinction between the Appellant's case and the case of FB was that the Appellant had actually suffered threats within Freetown and it is argued by the Appellant that the judge has not actually properly considered that relevant evidence when considering whether or not the Appellant could safely relocate to Freetown having already been subject to threats in Freetown. Within the grant of permission to appeal Judge McCarthy indicated that it was arguable that there was no analysis or reference to these instances within either paragraphs 23 or 24 of the decision and that it was arguable that the judge had overlooked that evidence.
8. I am grateful to the submissions I have heard this morning from Mr Neil, Counsel for the Appellant and also from Mr Tarlow, Senior Home Office Presenting Officer. In light of those submissions it has been agreed and conceded by Mr Tarlow that this is a case in which there may be errors within the decision of First-tier Tribunal Judge Ross. With regards to ground one of the grounds of appeal Mr Tarlow conceded that insofar as the question as to the Appellant's own evidence regarding the threats made to her whilst living in Freetown that that evidence has not been considered by the First-tier Tribunal Judge in his consideration as to whether or not the Appellant could safely relocate to Freetown, at paragraph 24 of the decision.
9. Given that concession, I find that the First-tier Tribunal judge has looked simply followed FB in finding that an appellant could safely relocate to Freetown, as a general principle, but has not actually considered specifically the evidence from the Appellant herself in this case regarding the threats that she said that she had previously suffered whilst in Freetown itself.
10. I do therefore find that this relevant evidence that has not been considered by the judge and I find that that may well have had a material effect on the outcome of the case regarding internal relocation. I do therefore find that that is a material error of law.
11. In the second ground of appeal it is argued that there are insufficient reasons given for the adverse credibility findings at paragraph 23 where the First-tier Tribunal Judge disbelieved the Appellant's account of the breakdown of the Appellant's relationship with her husband.
12. Within the Grounds of Appeal and in oral submissions before me, it was argued that the Appellant said that she was unable to give a specific date as to when she separated from her husband, but when forced to do so she indicated that she said that it was about 2011. However it is argued that the Appellant had indicated that she was not able to give a clear date and that what are said to be inconsistencies should not be taken against her, and that little weight should be placed upon the answers that she gave in that regard in the screening interview following the case of JF (Afghanistan.
13. However, when looks at paragraph 23 of the judgment, First-tier Tribunal Judge Ross the judge stated :
"However, one aspect of her claim about which she has not been truthful, in my judgement is the position in relation to her husband and daughter. Her account of when she separated from her husband and whether she has any contact with her daughter has changed, and she does not appear to be able to stick to one account. In her evidence to me she was pressed about when she separated from her husband. She stated that she could not remember. She then stated it was 2011. She then stated that her last contact with her husband was when she was leaving and told him that he would have to look after the child. She confirmed that this must have been in 2013. In her screening interview at 6.5 she was asked when she had last seen her children and she replied that she is with my husband. She was then asked: Are you in contact with them? and she replied Yes. In her statement at paragraph 14 she said she was separated from her husband in 2012 and had lost contact with her daughter and did not know where she was. In the evidence of F. B. he said that when he left Sri Lanka in 2013 the Appellant was living with her husband. He then changed his account and said that the Appellant moved to live with him. Mrs B. said that when the Appellant came to the UK she had still been in contact with her husband but that he had gone ballistic when she had told him that she was proposing to claim asylum on the basis of her opposition to FGM. There is no clear account therefore of the relationship between the Appellant and her husband and daughter and I consider that the Appellant has not been truthful about this, because she does not want to admit she could return to live with her husband in Freetown. "
14. Although criticism is made of the evidence recorded by the judge in respect of Mr B. And as to whether or not what is actually recorded within the decision was his evidence in that regard, the evidence as recorded by Judge Ross at [23] correlates with his note of the evidence in the Record of Proceedings. However in my judgement the findings of Judge Ross as to why he disbelieved the evidence regarding relationship between the Appellant and her husband and daughter has been both adequately and sufficiently explained. The judge has set out clear and adequate reasons for his findings in this regard, and clearly set out and explain the inconsistencies in the evidence. Although the appellant says that she could not actually remember specifically being asked the questions she was asked in screening interview, it was not being argued that the appellant had given inconsistent answers to that which were recorded, simply that she could not remember.
15. The Judge has clearly set out and what he found to be inconsistencies in the evidence regarding the relationships and also inconsistencies between the evidence of the Appellant and also the evidence of Mr F.B and was entitled in my judgement to make the findings he made in respect of the fact that the Appellant had not been truthful regarding the position in relation to her husband and daughter. The Judge's reasons are clearly set out and have been adequately and sufficiently explained.
16. In respect of the third ground of appeal, it is argued that Judge Ross at paragraph 25 wrongly considered the risk of suicide to the Appellant. In that regard when looking at paragraph 25 Judge Ross found and stated:
"I must go on to consider whether the appeal should be allowed on the basis of her depressed condition. The report from the clinical psychologist with regard to Krotoewizc-Griffiths dated 19th January 2016 makes it clear that there is no real risk in this case of suicide. She states that M. Denied having any intention or plan to harm herself. There is no history of self-harming or suicide attempts. There is no evidence of impulsive personality features. The report of Professor Katona indicates that there may be a deterioration of her mental state if she is obliged to go back to Sierra Leone. There is no evidence in this case that the Appellant has harmed herself or that she will do so. I consider that even taking the report of Professor Katona at its highest there is no justification for concluding that there is a real risk of suicide in this case. I consider there is a very big difference between thinking about suicide and actually carrying it out. The high point of the report is that Professor Katona states, 'there is a high risk of experiencing an increased frequency and intensity of these thoughts and that she might act upon them with potentially lethal consequences.' Looking at the criterion set out in the case of J v Home Secretary [2005] EWCA Civ 629 I do not consider there is any objective evidence that the Appellant will be ill-treated upon return and this tends to draw me to the conclusion that removal will not constitute a breach of Article 3.'"
17. Although Judge Ross at paragraph 25 indicates that the high point of the report of Professor Katona when he says that "There is a high risk that she would experience an increase in the frequency and intensity of these thoughts and that she might act on them with potentially lethal consequences", that does not fully reflect what was said in the report of Professor Katona. At paragraph 10(b) of his report although Professor Katona did clearly state that in his professional opinion there is a high risk she would experience increased intensity of these thoughts and she may act upon them with potential lethal consequences" as stated by the Judge, the Professor went on to find specifically that "In my opinion Miss K. will be at significant risk of suicide both in the UK, prior to removal, once she has given up all hope of being allowed to remain, during the removal process and once she is back in Sierra Leone".
18. I find that the judge is not fully taken account of the report of Professor Katona and the evidence given by him in respect of the risk of suicide, and this amounts to a failure to consider material evidence.
19. However, the question of risk of suicide and the appellant psychological state will have to be reconsidered in any event, when considering the question of internal relocation, and as to whether or not that will be unduly harsh.
20. In such circumstances I do find that the decision of First-tier Tribunal Judge Ross does contain material errors of law and I set aside the decision of the First-tier Tribunal Judge in respect of his reasoning both in terms of internal relocation and the risk of suicide.
21. However I preserve the First-tier Tribunal Judge's findings contained at paragraph 22 of the judgment in terms of the Appellant being made Sowei and that she has subsequently become opposed to FGM, and that it will not be safe to go back to her local area.
22. In terms of disposal, given the fact that the question of internal relocation, risk of suicide, and risk upon return therefore have to be reconsidered, in my judgement it is appropriate for the case to be remitted back to the First-tier Tribunal given the amount of fact finding that was required in that regard. The case is to be to remitted back to the First-tier Tribunal to be heard before any First-tier Tribunal Judge other than First-tier Tribunal Judge Ross.

Notice of Decision
The decision of First-tier Tribunal Judge Ross does contain material errors of law and is set aside in respect of his findings on internal relocation, risk of suicide and risk upon return. However, I preserve his findings at paragraph 22 relating to the risk to the Appellant in her home area.
The case is to be to remitted back to the First-tier Tribunal to be heard before any First-tier Tribunal Judge other than First-tier Tribunal Judge Ross.

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 29th July 2016

Deputy Upper Tribunal Judge McGinty