JR/8620/2015
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The decision
IN THE UPPER TRIBUNAL
JR/8620/2015
Field House,
Breams Buildings
London
EC4A 1WR
3 May 2016
The QUEEN
(ON The application OF)
maimuna jawo
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE PETER LANE
(Hearing date: 1 April 2016)
- - - - - - - -
Ms G. Brown, Counsel, instructed by Asylum Aid, appeared on behalf of the Applicant.
Mr W. Hansen, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
JUDGMENT
- - - - - - - - - - - - -
JUDGE PETER LANE: This is an application by Ms Maimuna Jawo for a judicial review of the respondent's decision on 24 April 2015 to refuse to treat her submissions, as referred to in that letter, as a fresh asylum or human rights claim. Permission to apply for judicial review proceedings was granted by Upper Tribunal Judge Eshun on 12 October 2015.
2. The immigration history of the applicant is essentially as follows. On 16 February 2009, Immigration Judge Holmes (as he then was) allowed the applicant's appeal against the refusal of entry clearance to the United Kingdom, which she sought in order to attend a family wedding. Later that year the applicant entered the United Kingdom with a visit visa valid until 12 September 2009. After that date, the applicant remained illegally in the United Kingdom. On 12 January 2012, she claimed asylum. On 2 February 2012 she was served with form IS.151A and the following day she was detained. On 7 February 2012 the respondent refused the applicant's claim for asylum. The applicant appealed against that decision and on 22 February 2012 her appeal was dismissed by the First-tier Tribunal, pursuant to the so-called Fast Track provisions of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
3. On 27 February 2012 the applicant became appeal rights exhausted. She was released from detention on 17 July 2012. Further submissions regarding her claim to international protection were submitted to the respondent in January 2013. These were refused by the respondent in April 2013. In March 2014 the applicant made further submissions. On 24 April 2015 the respondent refused to treat these further submissions as a fresh claim. That decision is the subject of the present proceedings.
4. Paragraph 353 of the Immigration Rules provides as follows:-
"353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas."
5. In WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the Court of Appeal held that the Secretary of State, in effect, was required to demonstrate that she had asked herself the correct questions, as required by paragraph 353, and that she had applied anxious scrutiny to the materials before her. In R (YH) v Secretary of Statea for the Home Department [2010] EWCA Civ 116, the Court of Appeal confirmed that the respondent's conclusion as to whether the representations amount to a fresh claim can be challenged only on Wednesbury grounds.
6. The applicant's claim to be in need of international protection is based on her assertion that she would be persecuted by the female elders of her village in the Gambia because she did not wish to assume the hereditary role (previously carried on by her mother) of being the person responsible for genitally cutting girls in that village. During her time in the United Kingdom, the applicant had become a vocal opponent of FGM, speaking about it at conferences and other meetings.
7. The Immigration Judge who dismissed the appellant's asylum appeal in February 2012 made robust adverse credibility findings. He noted that the person who was now the applicant's sister-in-law had said she knew the applicant well and that the applicant was employed in a school in the Gambia as a teacher. The lady in question described the applicant as married with children and confirmed that she would surely return at the end of her visit. The judge noted that the sister-in-law did not appear to be playing any part in the subsequent asylum claim. The judge was particularly concerned at the fact that the applicant now described herself as not a teacher as such, but as a person who merely helped at the school in a minor capacity. The applicant asserted that the payslips said to emanate from the school, provided in connection with the entry clearance application, were false "because she was working only as a volunteer". The judge considered that to be "a disgraceful distortion of the truth".
8. The judge completely rejected the applicant's claim regarding FGM. He described her chronology of events in the Gambia as "somewhat vague", noting that although the applicant's mother must have died in 2007, the applicant remained in the village until 2009 and that "no pressure was put on her to perform FGM" despite the fact that she had supposedly made it known to the elders that she did not intend to take her mother's place. Even if FGM ceremonies in the village took place only every two years, the judge considered that the elders had had at least two years to pressure the applicant; and yet they did not harm her at all. Although the applicant said that her teeth had been knocked out or loosened as a result of being slapped hard on both cheeks, whilst present at an FGM procedure, the judge noted that in any event that incident took place whilst the applicant's mother was still alive. The applicant's claim that her children "had been farmed out to people who are not relatives is undermined by her witness who states that they are with extended family members".
9. The judge was also concerned about a letter purportedly written by the elders, dated 24 January 2012, and supposedly faxed to the applicant on 30 January 2012. The judge was troubled that the letter should be written in English to someone who shared the elders' Fulla ethnicity. Her explanation "that they knew she was in England conflicts with her reply made in her interview that nobody knew she was in England". The reference in the letter to a ceremony which should have taken place in March 2010 "conflicts with the appellant's claim that the ceremony took place every two years. If her mother died in 2007 the next ceremony should have taken place in 2009". The judge took the view that the letter "cannot possibly be genuine. It has been fabricated to support her claim but instead it undermines it".
10. The decision letter of 24 April 2015 sets out (bundle, pages 75 - 76) a long list of the materials submitted in connection with the fresh claim submissions. So far as concerns the applicant's sur place activities in the United Kingdom, the respondent did not consider that these showed the applicant to have "a high political profile". The activities were not regarded as such as to bring her to the adverse attention of the authorities. The respondent noted that, in fact, the claim was that the applicant would be persecuted by the elders in her village for refusing to carry out "cutting" there. In this regard, the respondent pointed to various reports, including the U.S. State Department and Sentinel Security country assessments, which indicated to the respondent that the authorities in the Gambia had the means to deal with any threat to the applicant from the elders.
11. The respondent went on to consider the claim that the applicant had spoken about FGM in a short video which may or may not have been aired on CCTV Africa. The respondent considered that if the applicant did not wish to return to her village, she could relocate to other areas of the Gambia. The respondent noted the expert report written by Dr Kea of the University of Sussex, who believed that the applicant "would be at risk of being actively tracked down by elders in order to encourage/force the client to return to the village to fulfil her role as a cutter". The respondent noted that this contrasted with the finding of the First-tier Tribunal Judge in 2012. Furthermore, the respondent did not believe that people in other areas of the Gambia would know about the applicant's claimed background as a trainee cutter and that she would not be likely to be open about this to strangers. It was not considered that the applicant's profile was high enough that the elders of the village would know that she was in the Gambia through word of mouth. Other areas such as Central River, South and Lower River regions of the Gambia were identified by the respondent as places in which the applicant could relocate.
12. The applicant had five children, living in the Gambia, outside the home village. Although the applicant's ex-husband was said to be trying to marry her daughter to a nephew, the respondent considered that the applicant had the option to relocate and that any children could easily relocate with her. In this regard, the respondent noted that the applicant said that she was concerned about certain of her children being made homeless in the near future; in which case, the respondent believed that the applicant could return to care for them, without any problems.
13. So far as concerned alleged problems in understanding the interpreter in connection with the 2012 asylum claim, the respondent noted that the applicant had confirmed that she had no problems with the asylum interview and she also confirmed to the First-tier Judge that she spoke English.
14. Ms Brown, in her detailed and careful submissions, argued that the respondent had erred in law in relying upon the adverse findings of the First-tier Tribunal Judge in 2012. This was particularly the case, given that the judge made his decision pursuant to the Fast Track Rules. The subsequent set of such Rules, contained in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, was found to be unlawful in the Detention Action litigation.
15. I do not consider that the respondent's decision can be faulted in this regard. There is nothing in the decision letter to demonstrate that the respondent treated the First-tier Tribunal Judge's findings as anything other than the starting point for the respondent's assessment of the new submissions and materials. The 2005 Rules, under which the First-tier Tribunal Judge operated, have not been found to be unlawful. Furthermore, I am not aware of any pronouncement from the higher courts that requires undisturbed judicial decisions, made under those Rules, to be disregarded, whether in the context of paragraph 353 or otherwise.
16. In the present case, the respondent had been in the United Kingdom for several years, before making a claim for asylum, at a time of her choosing. Her lawyers did not seek an adjournment of the case, or its removal from the Fast Track. So far as alleged language difficulties were concerned, the respondent was, I consider, entitled to note that no difficulties had been asserted by the applicant in speaking in English at her asylum interview or at the appeal hearing.
17. Accordingly, the First-tier Tribunal Judge's findings could, I find, constitute the backdrop or starting point for the respondent's analysis of the new submissions made by the applicant. In particular, the respondent was entitled to compare what the expert, Dr Kea, had to say about the applicant's claim with the findings of the First-tier Tribunal Judge. As Mr Hansen points out, the expert's report is heavily dependent upon the expert's view that certain claims made by the applicant were "plausible". However, whether or not one categorises the questions put to the expert by the applicant's solicitors as "leading" in nature, there is little in the report to indicate that the expert appreciated the problems with the applicant's credibility, which the First-tier Tribunal had found. As I have already indicated, those included the applicant's claim (or admission) to have used false documentation in connection with a previous immigration application.
18. I have had regard to what Ms Brown rightly points out is a problematic aspect of the decision letter. The writer appears to take issue with the expert report, on the grounds that it contains what is, in truth, no more than a standard paragraph making plain that the opinions expressed by the expert represent her "true and complete professional opinion". Taken on its own, this criticism looks odd; but read as a whole the respondent's decision letter plainly was not discounting the expert's views on this basis but, rather, for the reasons I have given.
19. Both the applicant and her sister-in-law have submitted statements, which attempt to deal with several of the credibility issues that have beset the applicant's claim for international protection. The applicant has not, however, shown that these statements, taken together with the other material, render the respondent's decision irrational on WM (DRC) terms. On the contrary, serious problems plainly bedevil the applicant's case; in particular, the issue of letters supposedly written by the village elders. According to the materials at pages 137 - 140 of the bundle, the women elders of the village have now sent a letter dated 6 May 2012, indirectly addressed to the applicant, in which they refer to a visit by Marjorie Jawo, following the dismissal of the applicant's appeal. This states that the applicant must return
"to perform our traditional female circumcision of which she is the only one unfortunately conducted. Our plans will not be change as what we told you [sic]. Raining season is fast approaching and our traditional practise will not be compromise [sic]. She MUST come back and perform this as the only child who was trained in the family. When she return if she refuse to perform the practice we will use force against her to conduct our important traditional (sic) for our children."
20. The letter goes on to say that the elders think that the applicant received their earlier letter because her children have "vacated" the village. At page 138 there is a letter dated 6 May 2012 from "Office of the Village Alkalo", addressed to the applicant, saying "you will be physically assaulted and beaten as punishment dictated by our tradition and culture", should she fail to return and carry out FGM. As village head, the writer says that he would "give my fullest support in the enforcement of the above sanctions".
21. According to the applicant, despite the length of time since she was last in the village, the elders are not making alternative arrangements for FGM (bundle page 263).
22. These letters are, on any view, intensely problematic. But, even if they are genuine, they expose a discrete problem with the applicant's case that the respondent was, I find, amply justified in relying upon, in rejecting the submissions pursuant to paragraph 353. The fact of the matter is that (assuming the letters are genuine) there is an absence of evidence to show that the elders have any intention of seeking out the applicant, in order to harm her, should she relocate to some other part of the Gambia. This problem is underscored by the fact that there is no evidence to which my attention has been drawn to indicate that the applicant's children had faced threats from the elders, once outside the village.
23. An interesting feature of this case is that, as a result of her anti-FGM activities in the United Kingdom, the BBC took an interest in the applicant. The late Sue Lloyd-Roberts travelled to the Gambia and went to the applicant's home village. According to the applicant (bundle page 101) Ms Lloyd-Roberts "spoke to my sister who was angry with me for not being a cutter as she wants her own daughter to be cut. She thought it would not be safe for me to go back. [Sue Lloyd-Roberts] also spoke to the woman who is now caring for my children in another village. It shows that my children cannot safely go back to live in [the village] either".
24. Again, there was no indication that the reach of the elders extended as far as the village in which the children were then living, let alone to some more distant part of the Gambia.
25. The Tribunal's country guidance (K and others (FGM) The Gambia CG [2013] UKUT 00062 (IAC)), casts doubt on the ability of those who are at real risk of FGM to relocate elsewhere in the Gambia. The applicant's case is, however, materially different. She is a mature woman who has already undergone FGM. She comes from an ethnic group which, according to the country guidance, contains a significant number (indeed, apparently a majority) of persons who do not practise or suffer FGM. Although small in territorial extent, the population of the Gambia is around 2,000,000.
26. Accordingly, I find that the respondent was entitled in law to reach the conclusion that the speaking and other activities undertaken by the applicant in the United Kingdom would not preclude her ability internally to relocate, compatibly with the objectives of the Refugee Convention. Although Ms Brown criticised the reference in the decision to the applicant not having a "high political profile", the inescapable point is that the respondent was entitled to conclude (a) that the government of the Gambia would not be adversely interested in the applicant as a result of her activities; and (b) those activities would not have any material bearing on the issue of risk posed by the village elders.
27. In conclusion, I find that the respondent was entitled to refuse to treat the applicant's submissions as a fresh claim. The application for judicial review is, accordingly, dismissed.~~~~0~~~~
JR/8620/2015
Field House,
Breams Buildings
London
EC4A 1WR
3 May 2016
The QUEEN
(ON The application OF)
maimuna jawo
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
UPPER TRIBUNAL JUDGE PETER LANE
(Hearing date: 1 April 2016)
- - - - - - - -
Ms G. Brown, Counsel, instructed by Asylum Aid, appeared on behalf of the Applicant.
Mr W. Hansen, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
JUDGMENT
- - - - - - - - - - - - -
JUDGE PETER LANE: This is an application by Ms Maimuna Jawo for a judicial review of the respondent's decision on 24 April 2015 to refuse to treat her submissions, as referred to in that letter, as a fresh asylum or human rights claim. Permission to apply for judicial review proceedings was granted by Upper Tribunal Judge Eshun on 12 October 2015.
2. The immigration history of the applicant is essentially as follows. On 16 February 2009, Immigration Judge Holmes (as he then was) allowed the applicant's appeal against the refusal of entry clearance to the United Kingdom, which she sought in order to attend a family wedding. Later that year the applicant entered the United Kingdom with a visit visa valid until 12 September 2009. After that date, the applicant remained illegally in the United Kingdom. On 12 January 2012, she claimed asylum. On 2 February 2012 she was served with form IS.151A and the following day she was detained. On 7 February 2012 the respondent refused the applicant's claim for asylum. The applicant appealed against that decision and on 22 February 2012 her appeal was dismissed by the First-tier Tribunal, pursuant to the so-called Fast Track provisions of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
3. On 27 February 2012 the applicant became appeal rights exhausted. She was released from detention on 17 July 2012. Further submissions regarding her claim to international protection were submitted to the respondent in January 2013. These were refused by the respondent in April 2013. In March 2014 the applicant made further submissions. On 24 April 2015 the respondent refused to treat these further submissions as a fresh claim. That decision is the subject of the present proceedings.
4. Paragraph 353 of the Immigration Rules provides as follows:-
"353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas."
5. In WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the Court of Appeal held that the Secretary of State, in effect, was required to demonstrate that she had asked herself the correct questions, as required by paragraph 353, and that she had applied anxious scrutiny to the materials before her. In R (YH) v Secretary of Statea for the Home Department [2010] EWCA Civ 116, the Court of Appeal confirmed that the respondent's conclusion as to whether the representations amount to a fresh claim can be challenged only on Wednesbury grounds.
6. The applicant's claim to be in need of international protection is based on her assertion that she would be persecuted by the female elders of her village in the Gambia because she did not wish to assume the hereditary role (previously carried on by her mother) of being the person responsible for genitally cutting girls in that village. During her time in the United Kingdom, the applicant had become a vocal opponent of FGM, speaking about it at conferences and other meetings.
7. The Immigration Judge who dismissed the appellant's asylum appeal in February 2012 made robust adverse credibility findings. He noted that the person who was now the applicant's sister-in-law had said she knew the applicant well and that the applicant was employed in a school in the Gambia as a teacher. The lady in question described the applicant as married with children and confirmed that she would surely return at the end of her visit. The judge noted that the sister-in-law did not appear to be playing any part in the subsequent asylum claim. The judge was particularly concerned at the fact that the applicant now described herself as not a teacher as such, but as a person who merely helped at the school in a minor capacity. The applicant asserted that the payslips said to emanate from the school, provided in connection with the entry clearance application, were false "because she was working only as a volunteer". The judge considered that to be "a disgraceful distortion of the truth".
8. The judge completely rejected the applicant's claim regarding FGM. He described her chronology of events in the Gambia as "somewhat vague", noting that although the applicant's mother must have died in 2007, the applicant remained in the village until 2009 and that "no pressure was put on her to perform FGM" despite the fact that she had supposedly made it known to the elders that she did not intend to take her mother's place. Even if FGM ceremonies in the village took place only every two years, the judge considered that the elders had had at least two years to pressure the applicant; and yet they did not harm her at all. Although the applicant said that her teeth had been knocked out or loosened as a result of being slapped hard on both cheeks, whilst present at an FGM procedure, the judge noted that in any event that incident took place whilst the applicant's mother was still alive. The applicant's claim that her children "had been farmed out to people who are not relatives is undermined by her witness who states that they are with extended family members".
9. The judge was also concerned about a letter purportedly written by the elders, dated 24 January 2012, and supposedly faxed to the applicant on 30 January 2012. The judge was troubled that the letter should be written in English to someone who shared the elders' Fulla ethnicity. Her explanation "that they knew she was in England conflicts with her reply made in her interview that nobody knew she was in England". The reference in the letter to a ceremony which should have taken place in March 2010 "conflicts with the appellant's claim that the ceremony took place every two years. If her mother died in 2007 the next ceremony should have taken place in 2009". The judge took the view that the letter "cannot possibly be genuine. It has been fabricated to support her claim but instead it undermines it".
10. The decision letter of 24 April 2015 sets out (bundle, pages 75 - 76) a long list of the materials submitted in connection with the fresh claim submissions. So far as concerns the applicant's sur place activities in the United Kingdom, the respondent did not consider that these showed the applicant to have "a high political profile". The activities were not regarded as such as to bring her to the adverse attention of the authorities. The respondent noted that, in fact, the claim was that the applicant would be persecuted by the elders in her village for refusing to carry out "cutting" there. In this regard, the respondent pointed to various reports, including the U.S. State Department and Sentinel Security country assessments, which indicated to the respondent that the authorities in the Gambia had the means to deal with any threat to the applicant from the elders.
11. The respondent went on to consider the claim that the applicant had spoken about FGM in a short video which may or may not have been aired on CCTV Africa. The respondent considered that if the applicant did not wish to return to her village, she could relocate to other areas of the Gambia. The respondent noted the expert report written by Dr Kea of the University of Sussex, who believed that the applicant "would be at risk of being actively tracked down by elders in order to encourage/force the client to return to the village to fulfil her role as a cutter". The respondent noted that this contrasted with the finding of the First-tier Tribunal Judge in 2012. Furthermore, the respondent did not believe that people in other areas of the Gambia would know about the applicant's claimed background as a trainee cutter and that she would not be likely to be open about this to strangers. It was not considered that the applicant's profile was high enough that the elders of the village would know that she was in the Gambia through word of mouth. Other areas such as Central River, South and Lower River regions of the Gambia were identified by the respondent as places in which the applicant could relocate.
12. The applicant had five children, living in the Gambia, outside the home village. Although the applicant's ex-husband was said to be trying to marry her daughter to a nephew, the respondent considered that the applicant had the option to relocate and that any children could easily relocate with her. In this regard, the respondent noted that the applicant said that she was concerned about certain of her children being made homeless in the near future; in which case, the respondent believed that the applicant could return to care for them, without any problems.
13. So far as concerned alleged problems in understanding the interpreter in connection with the 2012 asylum claim, the respondent noted that the applicant had confirmed that she had no problems with the asylum interview and she also confirmed to the First-tier Judge that she spoke English.
14. Ms Brown, in her detailed and careful submissions, argued that the respondent had erred in law in relying upon the adverse findings of the First-tier Tribunal Judge in 2012. This was particularly the case, given that the judge made his decision pursuant to the Fast Track Rules. The subsequent set of such Rules, contained in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, was found to be unlawful in the Detention Action litigation.
15. I do not consider that the respondent's decision can be faulted in this regard. There is nothing in the decision letter to demonstrate that the respondent treated the First-tier Tribunal Judge's findings as anything other than the starting point for the respondent's assessment of the new submissions and materials. The 2005 Rules, under which the First-tier Tribunal Judge operated, have not been found to be unlawful. Furthermore, I am not aware of any pronouncement from the higher courts that requires undisturbed judicial decisions, made under those Rules, to be disregarded, whether in the context of paragraph 353 or otherwise.
16. In the present case, the respondent had been in the United Kingdom for several years, before making a claim for asylum, at a time of her choosing. Her lawyers did not seek an adjournment of the case, or its removal from the Fast Track. So far as alleged language difficulties were concerned, the respondent was, I consider, entitled to note that no difficulties had been asserted by the applicant in speaking in English at her asylum interview or at the appeal hearing.
17. Accordingly, the First-tier Tribunal Judge's findings could, I find, constitute the backdrop or starting point for the respondent's analysis of the new submissions made by the applicant. In particular, the respondent was entitled to compare what the expert, Dr Kea, had to say about the applicant's claim with the findings of the First-tier Tribunal Judge. As Mr Hansen points out, the expert's report is heavily dependent upon the expert's view that certain claims made by the applicant were "plausible". However, whether or not one categorises the questions put to the expert by the applicant's solicitors as "leading" in nature, there is little in the report to indicate that the expert appreciated the problems with the applicant's credibility, which the First-tier Tribunal had found. As I have already indicated, those included the applicant's claim (or admission) to have used false documentation in connection with a previous immigration application.
18. I have had regard to what Ms Brown rightly points out is a problematic aspect of the decision letter. The writer appears to take issue with the expert report, on the grounds that it contains what is, in truth, no more than a standard paragraph making plain that the opinions expressed by the expert represent her "true and complete professional opinion". Taken on its own, this criticism looks odd; but read as a whole the respondent's decision letter plainly was not discounting the expert's views on this basis but, rather, for the reasons I have given.
19. Both the applicant and her sister-in-law have submitted statements, which attempt to deal with several of the credibility issues that have beset the applicant's claim for international protection. The applicant has not, however, shown that these statements, taken together with the other material, render the respondent's decision irrational on WM (DRC) terms. On the contrary, serious problems plainly bedevil the applicant's case; in particular, the issue of letters supposedly written by the village elders. According to the materials at pages 137 - 140 of the bundle, the women elders of the village have now sent a letter dated 6 May 2012, indirectly addressed to the applicant, in which they refer to a visit by Marjorie Jawo, following the dismissal of the applicant's appeal. This states that the applicant must return
"to perform our traditional female circumcision of which she is the only one unfortunately conducted. Our plans will not be change as what we told you [sic]. Raining season is fast approaching and our traditional practise will not be compromise [sic]. She MUST come back and perform this as the only child who was trained in the family. When she return if she refuse to perform the practice we will use force against her to conduct our important traditional (sic) for our children."
20. The letter goes on to say that the elders think that the applicant received their earlier letter because her children have "vacated" the village. At page 138 there is a letter dated 6 May 2012 from "Office of the Village Alkalo", addressed to the applicant, saying "you will be physically assaulted and beaten as punishment dictated by our tradition and culture", should she fail to return and carry out FGM. As village head, the writer says that he would "give my fullest support in the enforcement of the above sanctions".
21. According to the applicant, despite the length of time since she was last in the village, the elders are not making alternative arrangements for FGM (bundle page 263).
22. These letters are, on any view, intensely problematic. But, even if they are genuine, they expose a discrete problem with the applicant's case that the respondent was, I find, amply justified in relying upon, in rejecting the submissions pursuant to paragraph 353. The fact of the matter is that (assuming the letters are genuine) there is an absence of evidence to show that the elders have any intention of seeking out the applicant, in order to harm her, should she relocate to some other part of the Gambia. This problem is underscored by the fact that there is no evidence to which my attention has been drawn to indicate that the applicant's children had faced threats from the elders, once outside the village.
23. An interesting feature of this case is that, as a result of her anti-FGM activities in the United Kingdom, the BBC took an interest in the applicant. The late Sue Lloyd-Roberts travelled to the Gambia and went to the applicant's home village. According to the applicant (bundle page 101) Ms Lloyd-Roberts "spoke to my sister who was angry with me for not being a cutter as she wants her own daughter to be cut. She thought it would not be safe for me to go back. [Sue Lloyd-Roberts] also spoke to the woman who is now caring for my children in another village. It shows that my children cannot safely go back to live in [the village] either".
24. Again, there was no indication that the reach of the elders extended as far as the village in which the children were then living, let alone to some more distant part of the Gambia.
25. The Tribunal's country guidance (K and others (FGM) The Gambia CG [2013] UKUT 00062 (IAC)), casts doubt on the ability of those who are at real risk of FGM to relocate elsewhere in the Gambia. The applicant's case is, however, materially different. She is a mature woman who has already undergone FGM. She comes from an ethnic group which, according to the country guidance, contains a significant number (indeed, apparently a majority) of persons who do not practise or suffer FGM. Although small in territorial extent, the population of the Gambia is around 2,000,000.
26. Accordingly, I find that the respondent was entitled in law to reach the conclusion that the speaking and other activities undertaken by the applicant in the United Kingdom would not preclude her ability internally to relocate, compatibly with the objectives of the Refugee Convention. Although Ms Brown criticised the reference in the decision to the applicant not having a "high political profile", the inescapable point is that the respondent was entitled to conclude (a) that the government of the Gambia would not be adversely interested in the applicant as a result of her activities; and (b) those activities would not have any material bearing on the issue of risk posed by the village elders.
27. In conclusion, I find that the respondent was entitled to refuse to treat the applicant's submissions as a fresh claim. The application for judicial review is, accordingly, dismissed.~~~~0~~~~