Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00274/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 October 2016
On 24 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

CECILIA [M]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Jafar of Counsel, instructed by Queen's Park Solicitors
For the Respondent: Mr S Staunton of the Specialist Appeals Team

ERROR OF LAW DECISION AND REASONS

The Appellant
1. The Appellant is a Gambian national born on 7 June 1979. In 2010 she arrived with leave to enter as a domestic worker. This leave was extended to expire on 22 August 2014. She had visited the Gambia over Christmas and New Year 2012/13. On 11 November 2014 a late application for further leave as a domestic worker was refused and on 12 May 2015 she claimed asylum on the grounds that on return to the Gambia she would be at risk of female genital mutilation (FGM) or forced marriage or both and on account of her sexual orientation.
The First-tier Tribunal Proceedings
2. On 10 June 2015 the Appellant lodged notice of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended (the 2002 Act). The grounds assert she is of the Jola tribe and that she will be forced into a marriage and subjected to FGM or both and that she is a lesbian. The appeal was initially subject to the now discredited Fast-Track Procedure but was eventually adjourned out of the Fast-Track on account of a series of failings to find a Jola interpreter.
3. By a decision promulgated on 29 June 2016 Judge of the First-tier Tribunal B Morris found the Appellant was not of the Jola tribe and had not established her claim to be at risk on return to the Gambia by reason of her membership of the Jola Tribe or by reason of her sexual orientation.
4. On 25 July 2016 Judge of the First-tier Tribunal Andrew refused the Appellant permission to appeal.
The Upper Tribunal Proceedings
5. The Appellant renewed her application on the same grounds to the Upper Tribunal and on 5 September 2016 Upper Tribunal Judge Plimmer granted permission to appeal on the basis it was arguable the First-tier Tribunal had failed to reconcile an apparent acceptance that the Appellant gave detailed evidence in the Jola language with the finding that she is not Jola.
6. In the course of my consideration of the papers in the Tribunal file in preparation for the hearing I noticed several matters to which I now turn.
7. The First-tier Tribunal decision recorded that there had been much discussion about the identity of the Appellant's first language, whether it was Jola or Wolof. At paragraph 34 of her decision the Judge noted "the Appellant speaks Wolof as her main language the prevalence of which is believed to be 0% in the Jola Foni ethnic group." In the next paragraph she went on to note that despite the Appellant having stated in the original grounds of appeal that she would be seeking an expert report on her ethnicity, none had been obtained and no explanation for such failure had been given to the Tribunal.
8. At paragraph 42 the Judge had referred to the decision in K and Others (FGM) Gambia CG [2013] UKUT 62 (IAC). She refers to the table at paragraph 124 of K and Others and concludes that:-
"It states that the prevalence of FGM within Jola phoni ethnic group, the ethnicity claimed by the Appellant, is not known although it is known that FGM is practised. The prevalence of FGM in Wolof who migrated from Senegal is 0% and the Wolof who migrated from Sine Saloum is not known but it is known that it is practised. ..."
She then finds that the Appellant is from Latrikunda which is an urban area of Serrekunda the largest town in Gambia. I noted at paragraph 125 of K and Others that the Upper Tribunal found that although it was setting out factors of general application each case will turn on its own facts.
9. I drew the attention of the parties to the line in the table from paragraph 124 of K and Others that the Upper Tribunal found that FGM was practised with a range of 90% to 100% in the ethnic group comprising the Jola and Karonikas. I also pointed out that the same table as reproduced in the head note failed to contain the line from the table in paragraph 124 which found that the practice of FGM amongst the Wolof (overall) may be as high as 20%.
10. I also referred the parties to paragraph 3.16.2 of the Gambia Operational Guidance Note v 7.0 of January 2014 prepared by the Respondent recording that the national prevalence of FGM in Gambia is 78.3% and the highest prevalence rises to 99%. This was sourced from a UNHCR paper "Too Much Pain - a statistical overview February 2013."
11. I mentioned that I had made some research which indicated that in Serrekunda although there is a tiny minority of ethnic Wolof, some 70% speak or understand Wolof.
12. The Appellant attended the hearing with her employer Ms [C]. She appears to have very limited English and I endeavoured to explain in the simplest of terms the purpose and procedure to be adopted at the hearing. Thereafter I adjourned the hearing into chambers when I drew the attention of the parties to the matters already mentioned. Mr Jafar also referred me to the record of the screening interview of the Appellant at pages F1-F4 of the Respondent's bundle in which the Appellant stated that the main language she spoke was Wolof that she also spoke Jola and had stated her tribe to be Jola and that she had been raised in Latrikunda.
13. He also referred me to page K3 in the same bundle being an extract from the access Gambia.com website which states that the Wolof comprise 16% of the population of Gambia and are the third largest ethnic group. It adds that they are primarily engaged in the occupations of business people, traders or farmers and that most people in the urban areas of Greater Banjul have adopted the Wolof language as the lingua franca. Page L1 of the Respondent's bundle indicates that Serrekunda is some thirteen kilometres to the south-west of Banjul.
14. On resuming the hearing, Mr Staunton quite properly conceded that the failure of the Judge to address these specific aspects of the background evidence in the Tribunal file would have infected the entirety of her findings such that the decision contained a material error of law.
Conclusion
15. I note from the Judge's evidently full and very legible Record of Proceedings that these particular parts of the background evidence were not referred to in submissions, the thrust of which focused on the Appellant's sexual orientation and the press release issued by Amnesty International on 2 June 2016. Its 2016 report "Dangerous to Dissent" focussed on political and media freedom.
16. In the circumstances I conclude that the decision of the First-tier Tribunal must be set aside in its entirety and the appeal heard afresh. Having regard to the extensive fact-finding which will be required and the Senior President's Practice Statement paragraph 7.2, I consider it appropriate for the appeal to be remitted to the First-tier Tribunal for hearing afresh.
Anonymity
17. There was no application for an anonymity order and having considered the appeal I find none is warranted.

SUMMARY OF DECISION

The decision of the First-tier Tribunal contained an error of law and is set aside in its entirety. The appeal is remitted to the First-tier Tribunal for hearing afresh.

DIRECTIONS

Not later than ten working days before the next hearing, the Appellant is to file and serve:-

(1) An expert report on her tribal ethnicity.

(2) A doctor's letter confirming whether the Appellant has not undergone any form of FGM.

(3) The appeal to be listed before any Judge other than Judge B A Morris and allotted four points.

(4) A Jola interpreter is required.

Signed/Official Crest Date 11. x. 2016

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal