Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01092/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 25 January 2017
On: 17 February 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Latoya [A]
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Ms S Akinbolu, counsel (instructed by Abbott Solicitors)
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Grenada, born on 3 November 1984. She appeals against the decision of First-tier Tribunal Judge Obhi, promulgated on 18 July 2016 dismissing her appeal against the respondent's decision to refuse to grant her asylum.
2. The appellant came to the UK on 13 June 2015 as a visitor. She arrived with her son, [KA], born on 23 September 2010. She had permission to remain for six months.
3. Her claim made on 18 September 2015 for asylum was refused on 21 January 2016.
4. Although the respondent accepted that she is a national of Grenada, the remainder of her claim - that she is the victim of domestic violence - was not accepted. Even if there were truths in what she claimed, she has not established a sustained and systematic failure on the part of the police to provide protection to her against her former boyfriend. Moreover, she could relocate within Grenada.
5. Her claims under Articles 2 and 3 of the Human Rights Convention were similarly refused as was her claim with regard to private and family life and Article 8. Nor were there any exceptional circumstances. The best interests of her child, who was a dependant in her appeal, were considered.
6. Judge Obhi dismissed the appellant's asylum appeal. In her findings of fact and credibility, she stated that the appellant left Grenada following a disagreement with her boyfriend, the father of her child. The appellant said this was because of the violent relationship that she had with him. Prior to the incident, when she challenged him about an affair with a younger woman, '...he was alright' [19]. He used to drink but it seemed that her challenging him about his infidelity '...pushed him to being violent to her and slapping her'.
7. The Judge accepted on the lower standard of proof that she had been involved in some disagreement with her ex-boyfriend. He may have hit her or slapped her as claimed. Whatever happened was sufficient for her to take their child without the father's consent to the UK.
8. Judge Obhi stated that there was no evidence of any injury to her or of any reports to the police or any requests for assistance from any organisation in Grenada for support. She was able to leave Grenada relatively easily as she had probably told her boyfriend that she was going for a short holiday, although it was never her intention to come just for a holiday.
9. Judge Obhi stated that she struggled to provide any real evidence that her boyfriend posed an ongoing risk to her. Her evidence was when the child's father made contact with her through her mother's mobile phone, he questioned her about the removal of his son. He made no threats to her. By her own account, she had a long standing relationship with him and considering the facts it seemed that the relationship was good until he began to see other women [20].
10. The appellant's mother left her whilst she was very young to come to the UK. The appellant is now an adult. She cannot come to the UK as her mother's dependant and would have to overcome several other hurdles to make a valid application to come here. That may be the real motive behind the claim [21].
11. She found that there is no evidence that the appellant has been the victim of domestic violence, although she did not under estimate the impact of domestic violence on victims and children caught up in such a conflict. There was no other evidence such as GP notes regarding incidents or referrals to the police. There was no objective evidence to support her claim of corruption in the police force, or of any institutional discrimination against women. [21]
12. Judge Obhi was accordingly not satisfied even on the lower standard of proof that the appellant is the victim of domestic violence. She was not satisfied that there is a history of such violence. There has been no attempts to seek protection afforded by the State. She has not sought the protection of her own country.
13. The appellant could return to Grenada and seek the protection of the State if she required it.
The appeal
14. On 9 December 2016, Upper Tribunal Judge Bruce granted the appellant permission to appeal. Although the grounds made no specific challenge to the findings on sufficiency of protection, she granted permission on the basis that the First-tier Tribunal had arguably erred in the approach taken to the nature of the risk. If the Tribunal was under the impression that being hit and slapped does not constitute domestic violence, it is wrong. Either the appellant is the victim of domestic violence, or she was not. If she was, it was then arguable that the findings as to current risk and protection may be flawed.
15. Ms Akinbolu, who did not represent the appellant before the First-tier Tribunal, submitted that the decision of the Judge was "internally inconsistent". Having made specific findings that her ex-boyfriend may have hit her or slapped her, she subsequently found that there is no evidence that the appellant has been the victim of domestic violence. Those findings cannot stand side by side. In the alternative the definition of domestic violence "is wrong".
16. Nor did the Judge address the availability of protection. The appellant's case had been that no such protection would be afforded to her as a victim of domestic violence, having regard to what she stated at paragraph 17 of her witness statement before the First-tier Tribunal. There she stated that she would face persecution if returned as she would not be protected from her ex-boyfriend because their society does not provide protection for someone in her situation. Even discounting that the local police have personal relationships with her ex-boyfriend, they are indifferent to the situation of women victims of domestic violence. She submitted that the background material arguably supported that assertion.
17. Ms Akinbolu referred to paragraph 6 of the appellant's witness statement where the appellant contended that the father of her son has been beating her and harming her ever since she discovered that she was having an affair. She ran away from him. It is he who used to hit her. It is he '?.that is friends with a number of police officers in our town. It is the father of my child that, as a man, he will not face censure for hitting "his woman". She stated that she will get no protection from the authorities in Grenada. She is a victim of domestic violence in a society that takes a permissive view towards such violence on women.
18. Ms Akinbolu also referred to her asylum interview at D8-9, Question 22. There she was asked "why do you fear?" She set out her case in full, referring to his continued assault on her when she discovered that he was having a relationship. The trouble started in 2012. She was on the brink of ending her life. She had nobody to support her. She told her mother on the phone. She said that she would then send for them. She left her partner and came to the UK.
19. At question 52 she was asked what she thought the police officers would do if she complained. She knows that they will tell her that if she did, he would hit her "or maybe worse".
20. Ms Akinbolu submitted that the Judge did not deal with any of the background evidence. She referred to the articles produced from Refworld (the Immigration and Refugee Board of Canada), dated 1 November 2011. There was also a later report from Refworld at page 21 and following, published on 20 March 2013. The LACC representative stated that sometimes police officers do not follow up with breaches of protection orders. Although the attitude of the police officers towards complaints is "slightly better", it still needs work. That was dated February 2013.
21. Ms Akinbolu referred to an article produced at p27 of the bundle titled 'Sexual violence in Grenada', published by the Grenada National Organisation of Women. It was dated December 2015. Reference is made to the need to undo the negative consequences of patriarchal systems and the lasting and negative ramifications of trans Atlantic slavery. Whilst it was accepted that sexual violence appeared to be a lasting legacy of slavery, the history cannot leave them blameless for their behaviour in the present day.
22. She also referred to an article from the Grenada Broadcasting Network at page 34. There was a belief that the country is lacking social responsibility when it comes to issues of domestic violence. That was the message from the Executive Director of the Caribbean Association of Youth Development, Ms K Mitchell. She referred to the case of a 27 year old mother who was found in the community. She was allegedly killed by her ex-boyfriend who reportedly had been making death threats for years.
23. She also referred to an article in the Jamaica Observer at pages 38-40 of the bundle. It is noted that the European Union is providing ?400,000 to implement a new project on preventing domestic violence in the Caribbean.
24. On behalf of the respondent Mr Tarlow relied on the Rule 21 response. He submitted that even if it is accepted that the appellant had been the victim of domestic violence, the appeal would nevertheless fall to be dismissed as a result of the findings at [21] that the appellant has made no attempt to seek protection in Grenada and that there is nothing to show that her ex-boyfriend is able to exercise influence such that she would be unable to access such protection.
25. He submitted that there is State protection available. The appellant should have gone to the police station, albeit that the system in place was not perfect.
Assessment
26. I find that there has been an error of law. The Judge accepted that the appellant's ex-boyfriend may have hit her or slapped her, but then subsequently went on to find that there is no evidence that she has been the victim of domestic violence.
27. Having regard to the evidence before her, to which I have referred in some detail, I accept that the two findings cannot stand side by side. The violence has been ongoing since her discovery of his infidelity.
28. Moreover, the Judge did not consider or address the availability of effective protection. Not only was there the appellant's assertion that no such effective protection would be afforded to her as a victim of domestic violence, the background evidence appeared to support that assertion.
29. The Judge accordingly has not properly considered the reality of the availability of protection, which was put in issue by the appellant's evidence before her. Judge Obhi simply stated that there has been no attempt to seek the protection afforded by the state [21]. She did not however weigh that against the appellant's evidence she referred to in her statement that the local police have personal relationships with her ex-boyfriend.
30. In the circumstances I find that the appellant's claim that she would be at risk on return to Grenada remains to be properly determined.
31. The parties agreed that in those circumstances, the decision should be set aside and remitted to the First-tier Tribunal for a fresh decision to be made. The finding that the appellant was a victim of domestic violence shall stand.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and the decision is set aside. It is remitted to the First-tier Tribunal (Birmingham) for a fresh decision to be made on the appellant's risk on return to Grenada, including the sufficiency of any protection that would be available.

Directions to the parties:
1. Any further evidence relied on by the parties shall be filed before the First-tier Tribunal and served on the other party no later than 14 days prior to the hearing of the appeal.
2. The appellant is to file with the First-tier Tribunal and serve upon the respondent a skeleton argument setting out the relevant issues with reference to the evidence and case law no later than 18 days prior to the hearing of the appeal.
3. The time estimate for the hearing is three hours.

Signed Date 12 February 2017
Deputy Upper Tribunal Judge C R Mailer