Tribunal decisions

The decision

IAC-AH-SAR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/01365/2015
PA/01366/2015
PA/01367/2015
PA/01368/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 17th January 2017
On 1st February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

(1) CTO
(2) PPA
(3) EDMA (A minor)
(4) EDhA (a minor)
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Usman, Counsel
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are citizens of Nigeria. The first Appellant was born on 4th March 1980. The second Appellant is the Appellant's spouse, born on 10th July 1972. The third and fourth Appellants are their minor children, born respectively on 26th December 2010 and 21st December 2012. The first Appellant entered the United Kingdom on 15th May 2005 with entry clearance as a student valid until 31st July 2008.
2. On 25th July 2008 the Appellant submitted an application for leave to remain in the United Kingdom outside the Immigration Rules which was rejected due to payment issues on 28th October 2011. That application was resubmitted on 3rd November 2011 but was refused with no right of appeal as of 8th February 2012. Subsequently the first Appellant completed the Statement of Additional Grounds on 29th October 2014 for leave to remain in the United Kingdom on the basis of her family and/or private life in the United Kingdom. The Secretary of State's records show this application was refused on 10th March 2015.
3. The Appellant made a subsequent application for asylum on 21st April 2015. The Appellants' claim for asylum is based on a fear that on return to Nigeria the third Appellant would be subjected to FGM by either her or her partner's family. That application was refused by the Secretary of State by notice of refusal dated 15th September 2015. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Shergill sitting at Birmingham on 20th May 2016. In a Decision and Reasons promulgated on 3rd June 2016 the Appellants' appeals were allowed on protection grounds.
4. On 3rd June 2016 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. Those grounds contended:-
()i that the Immigration Judge in the First-tier Tribunal had failed to take into account and/or resolve a conflict of fact or opinion on any material matter,
()ii had made a material misdirection of law on a material matter and
()iii had made perverse or irrational findings on matters that were material to the outcome.
5. On 15th July 2015 First-tier Tribunal Judge Kelly found that the first two grounds were not arguable because they were based upon the premise that the practice of FGM was a criminal offence in Nigeria even though there was no evidence to support it before the Tribunal at the time of the decision. Permission on those grounds was accordingly refused.
6. However, Judge Kelly considered that it was arguable, as claimed in the third ground, that absent specific background country information to support it (as opposed to the reference in paragraph 68 to "as set out in the country information"). The Tribunal's finding that the Appellants would be unable safely to relocate within a country the size of Nigeria was perverse. Permission to appeal on that ground alone was accordingly granted.
7. On 17th October 2016 the Appellants' instructed solicitors submitted a response pursuant to Rule 24. It was on the above basis that the appeal came before me to determine whether or not there was a material error of law in the decision of the First-tier Tribunal Judge. The Appellants appeared by their instructed Counsel, Mr Usman. Mr Usman was familiar with this matter, having appeared before the First-tier Tribunal. The Secretary of State appeared by her Home Office Presenting Officer, Mr McVeety.
8. On 2nd November 2016 I found that there was a material error of law in the decision of the First-tier Tribunal Judge solely so far as it related to the First-tier Tribunal Judge's assessment as to whether the Appellants could safely relocate within Nigeria. I gave directions for the filing of skeleton arguments and objective evidence upon which the parties intended to rely and for exchange of such documents. It is on that basis that the appeal comes back before me for re-hearing. I am assisted in this matter by the fact that both the Appellants and the Home Office are represented by the same legal representatives - Mr Usman and Mr McVeety - as appeared before me on the Error of Law hearing.
Preliminary Issue
9. As a preliminary issue I am referred by Mr Usman to his additional bundle of documents. That bundle, I understand, includes two witness statements from the first and second Appellants. There were no directions given for the filing of additional witness evidence. Mr McVeety notes that that additional evidence raises issues that were not before the First-tier Tribunal Judge. Mr Usman withdraws those statements insofar as he does not seek to rely on them before the Tribunal and proceeds merely by way of submissions as per my previous directions.
Submissions/Discussions
10. Mr Usman relies on the skeleton argument. I have read this document. He reminds me, and I note, that the First-tier Tribunal Judge allowed the appeal and the error of law was found on the submission of the Secretary of State. He reminds me that it is accepted that if a person has fear of harm from non-state agents then relocation to another area of Nigeria is likely to be viable depending on the individual circumstances of the person as long as it would not be unduly harsh to expect them to do so. His submission is that in this instant case it would be so. He takes me in consideration to the skeleton argument and the findings of the judge at paragraphs 51 and 60 to 73 and contends that the Appellants would face undue hardship if ordered to relocate.
11. Mr Usman takes me to extracts from his objective evidence bundle pointing out at paragraph 97 that although against the law and in decline, female genital mutilation (FGM) continues to be practised with differing prevalence rates and types across Nigeria and by ethnic social religion, residence, state, education and socioeconomic class. He refers to the objective report that states that in 2013 UNICEF noted that 27% of women had undergone FGM although he acknowledges that in the last twenty years the prevalence among adolescent girls has dropped by half.
12. He notes that a number of laws now exist to protect women against violence and have been strengthened by the Violence Against Persons (Prohibition) Act 2015 and that whilst this shows a determination to tackle violence against women and provide stiffer penalties for a number of gender based offences such as FGM, and makes it easier for women to seek recourse and protection, that laws are often not effectively implemented in practice.
13. He further takes me to the report of the US State Department Human Rights Practices Report for 2015 which states:-
"There is no comprehensive law for combating violence against women. As a result, victims and survivors had little or no recourse to justice. While some, mostly southern, states have enacted laws prohibiting some form of gender violence or seeking to safeguard certain rights, a majority of states did not have such legislation".
14. He notes, and it is conceded by Mr McVeety, that Nigeria offers a biometric card system of identification and that this would assist in the ability of the Appellant's aunt or any other such family member who seeks to impose FGM to trace the Appellant and her family. He submits that due to the extent of the tribal system in Nigeria it would not be possible to relocate and that the First-tier Judge gave sufficient reasons and he asked me to allow the appeal.
15. Mr McVeety starts by taking me to paragraph 60 of the First-tier Tribunal Judge's decision, noting that if it were not for the issue of FGM raised by the Appellant the First-tier Tribunal Judge was satisfied that relocation was an option. He emphasises however that this is not a case of a lone person returning to Nigeria but a family unit with a male provider. He points out that the starting point is that FGM has been criminalised and that if someone commits it then there has to be someone who actually carries it out. He points out, and agrees with, the figures set out in the objective evidence that the numbers are now down to some 27% of people affected and emphasises therefore that nearly three-quarters of the population are not affected and that it is now a criminal offence to commit it.
16. He accepts the position with regard to biometric ID cards but points out that there was no evidence raised before the First-tier Tribunal Judge to show any connection between the Appellants and influential people and consequently their return to Nigeria would not put anybody on alert. He further points out that there is a total population of 170,000,000 people in Nigeria and that it covers a vast area. He reminds me of the incident of the schoolchildren who were kidnapped in northern Nigeria and the fact that despite the efforts made, not just by the Nigerian authorities but by western interveners, that the vast majority have gone untraced. He merely uses this as an emphasis as to the difficulty of tracing people within such a vast land mass.
17. He points out that it is not state interveners whom the Appellants fear but their aunt and that it would not be reasonable to expect her to be able to trace the Appellants either through tribal or authoritative networks if they relocated. He points out that there is no objective evidence available to show that that would in fact be a possible or practical scenario.
18. He refers me to the COIF Report pointing out that the objective evidence shows that the Appellant could, if she was in fear, go to the police and seek their assistance, and that there is no evidence to say that the Appellant could not go and live in rural areas or indeed cities. He points out that methods are now in place to provide protection and that FGM is outlawed and reminds me that the only person seeking the Appellants is a family member. He asked me to find that the Appellants can relocate and that the appeal should consequently be dismissed.
19. Mr Usman's brief response reiterates that although there is now a law in force the objective evidence shows that laws are often not effectively implemented in practice and reiterates his submission.
20. I pointed out to the legal representatives the objective evidence to be found at 2.48 of the COIF Report updated August 2016 which states:-
"In general, it will not be unduly harsh for a woman to internally relocate to escape localised threats from members of their family or other non-state actors, especially if single and without children to support, but the individual circumstances of each case will need to be taken into account".
21. Because I raised this issue, I invited both parties as to whether they would wish to comment. Mr McVeety pointed out that this is not a case of a single woman returning but a family with a male protector and contends therefore that there is actual strength to his argument in that paragraph. In response, Mr Usman reminds me that the second Appellant is also fearful from his tribe and has been effectively "on the run" from them for a number of years and that that therefore would make the family more vulnerable.
Findings
22. The general position regarding the ability to relocate is not challenged, it is purely the specific circumstances of this family. The objective evidence makes it clear that relocation in general terms within Nigeria is an option. That proposition was accepted by the First-tier Tribunal Judge. He departed from that finding purely based on the factual circumstances of this case, namely that the third Appellant would be at risk and that through her family connections she could be traced by the wider family members who would be alerted by the community leaders wherever she moves within her family.
23. A review of the objective evidence and the submissions made by the parties does not endorse that view for a re-hearing. I accept that her case is face sensitive but the facts remain:-
(1) that Nigeria is a very large area;
(2) that it has a population of over 170,000,000;
(3) that it is not the state that pursues the Appellants but a family member;
(4) that there is no evidence produced objectively to show that a family member would be likely through the use of biometric cards and a tribal grapevine to be able to trace the Appellants;
(5) that there is now in place criminal law protection and the objective evidence shows that the police will assist.
24. I accept that the Appellants herein rely on the individual circumstances of this case. This is however not a case of a lone girl being returned on her own. The family would return as a family unit and even though it is contended the second Appellant is pursued by his tribe he would be in a position to be a male protector. The fact remains that there is nothing exceptional about this case. It could in some respects be argued that if this appeal succeeded, then any case in which there is an alleged fear of FGM by a family member would also be in a position to succeed. As a matter of law that cannot be the correct approach. I acknowledge it is necessary to look at each case on its facts. For all the reasons given above that has, in this instant case, taken place I have considered the objective evidence. The objective evidence just does not show that even in these circumstances that the Appellants cannot relocate and whilst I anticipate that this decision will of course be disappointing to them, as a matter of law I find that the Appellants cannot succeed and their appeal is dismissed.
Notice of Decision
On a re-hearing of the appeal on the grounds limited by the directions previously given, the appeal of the Secretary of State is allowed and the appeal of the Appellants from the decision of the Secretary of State in the Notice of Refusal is dismissed.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris