Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01383/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 January 2019
On 7 February 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

BOC
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Butler, counsel.
For the Respondent: Mrs S Jones, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal issued on 23 June 2018 dismissing her appeal against the respondent's decision of 15 January 2018 refusing her application for asylum.

Background.

2. The appellant is a citizen of Nigeria, born on 3 April 1980. It is her account that she left Nigeria in 1989 with her father's consent and travelled to Italy with another woman. She said that she was a victim of modern slavery working in this woman's home and then from 1995 to 2000 in a hair salon she owned. In 2000 she married in secret while still living in Italy and in October 2002 came to the UK with her husband, travelling on a multi-entry visit visa valid from August 2002 until 14 February 2003. On 26 July 2004 her husband made an application for leave to remain naming her as his dependant, but that application was refused on 25 February 2009 and notice of liability to removal was notified to the appellant on 26 March 2009. She made a further application for leave in April 2010 which was refused on 28 January 2011 with no right of appeal.

3. Her husband died on 13 April 2014 and she claims that she received threats from his family who regarded her as a witch, responsible for his death. In June 2014 she applied for indefinite leave to remain, but this was refused on 30 October 2014 and her appeal to the First-tier Tribunal was dismissed in a decision issued on 9 June 2015.

4. The appellant was encountered by immigration officers on 17 June 2016. She produced a document purporting to confirm that she was a British citizen, but this was found not to be genuine. She was detained and made a claim for asylum on 4 July 2016. As part of her claim she raised issues of modern slavery and trafficking. She was referred to the relevant authorities and released from immigration detention on 13 July 2016. On 21 April 2017 the competent authority decided that she had not been a victim of trafficking and on 15 January 2018 the respondent notified the appellant that her claim to be recognised as a refugee or otherwise for leave to remain was refused.

The Hearing before the First-tier Tribunal.

5. At the hearing before the First-tier Tribunal the appellant maintained her claim for asylum, humanitarian protection and for leave under articles 2, 3, 4 and 8 of the ECHR. The judge heard oral evidence from the appellant and was provided with a bundle of documentary evidence in support of her appeal (A1-337). This included a psychological assessment from a qualified psychotherapist, Susan Pagella, (at A21-37), a country expert report from Professor Mario Aguilar (A38-73) and the decision of Judge Baldwin of 9 June 2015 (A192-205). The bundle also contained at A257-337 background information relating to Nigeria.

6. The judge did not accept that the appellant was at any risk from threats from her late husband's family. He noted that this issue had not been raised before Judge Baldwin in June 2015, rejecting the argument that the issue relating to her fear of ill treatment at the hands of her former in-laws was raised or that her lawyers had chosen to omit any reference to it. The judge found that the appellant had not been targeted by threats or otherwise from members of her late husband's family [50].

7. He went on to consider the issues raised by her claim that she would be at risk as a person who had been previously trafficked. He rightly said that this had to be seen in the context that the competent authority had concluded that she had not been such a victim and that her claims in this regard were, in effect, rejected in their entirety by Judge Baldwin at the previous hearing [53].

8. There was further evidence on this issue in the psychological report by Ms Pagella. The judge accepted that she was an expert in psychological assessment. She said that the appellant's presentation symptoms fell within the spectrum of those who had been kept in a state of modern slavery without documentation, rights, holidays or payment. The judge accepted her diagnosis that the appellant was suffering from symptoms of PTSD and associated conditions but found that why she presented with those problems was not so straightforward. The appellant had experienced the deaths of two important people in her life, her mother and her husband, whose death was apparently unexpected [57]. There were also factors which led him to find that on balance her evidence was not credible including the delay in making her claim until she was served with a notice concerning her removal and he did not accept her explanation about providing a false document suggesting that she was a British citizen [62]. On the issue of asylum, he concluded that the appellant had not shown even to the lower standard that she had a well-founded fear of persecution for any convention reason if she was now to return to Nigeria and she was not a real risk of ill treatment contrary to article 3 as a previous victim of trafficking or at the hands of her late husband's family [63].

9. The judge went on to consider the remarks of Professor Aguilar about the availability of protection from the authorities in Nigeria and whether the appellant might be at risk as being "culturally associated with a witch" because she was a single woman without a husband. His report set out a full background to witchcraft and his considerations, but the judge said that he found this almost completely unhelpful as it was an academic discourse, whereas the relevant context to a report of this nature was the prevalence of such problems and the vulnerability of persons to such accusations. He had not addressed that issue in any manner that assisted the Tribunal [71]. The judge, therefore, concluded that the appellant had not shown that she faced a real risk of treatment contrary to article 3 on the basis of her mental health or her profile on return.

10. The judge then considered article 8. It was common ground that the appellant had no family life in the UK and that she relied solely upon issues of private life. The appellant would be returning to Nigeria as 38-year old woman who had lived in that country for almost the first half of her life. (This finding is based on the finding of fact made by Judge Baldwin that the appellant was not in Italy before 1997 or possibly 1998 [60]). English was the formal language of Nigeria. The appellant had married a man of similar background to herself and appeared to have the support of friends in this country and in her church. She appeared to have made no enquiries and to have closed her mind as to any relatives she might have in Nigeria [77]. The judge did not accept that she had none or that they were not capable of being traced.

11. He accepted that medical attention was available in Nigeria. He found that the appellant was dependent on friends and her church in this country and had not sought to explain why at least some basic support from them could not continue in practical terms were she now to be returned to Nigeria. She also appeared to have made no effort to trace her relatives there. He was not satisfied that there were any very significant obstacles to her reintegration into Nigeria and she could not succeed in respect of private life under the Rules.

12. The judge went on to consider the provisions of s.117 of the Nationality, Immigration and Asylum Act 2002. The appellant had a poor immigration history. She had come to the country as a visitor and had not had leave to remain since the beginning of 2003. She had made a number of unsuccessful applications but had never returned as she should have done. She had failed to report and had proffered a false identity document suggesting that she was a British citizen and had made a very late claim only after she was threatened with removal. Her private life appeared to be limited to her friends and her church. Basic medical treatment should be available to her in Nigeria and she had access to financial support. The judge said that he did not underestimate that it would be difficult for the appellant now to return to Nigeria after so long but, in his judgment, the strong interest of the state in effective immigration control outweighed the private life of the appellant and the decision to remove her was proportionate.

The Grounds of Appeal.

13. There are two grounds of appeal. The first ground argues that the judge erred in her his assessment of whether the appellant would be at risk of serious harm as someone perceived to be a witch. He had failed to give sufficient reasons or taken proper account of all the relevant considerations. Given that the appellant would be returning as a single person with no male protector, the judge had been wrong to say that the expert evidence of Professor Aguilar had not addressed that issue in a way that assisted the Tribunal. He was a recognised expert whose account was drawn from his experience as well as from a wide range of background sources. It is argued that the judge gave inadequate reasons for rejecting this part of the appellant's claim.

14. The second ground argues that, when assessing article 8, the judge failed to take into account relevant evidence and reached conclusions not based on the evidence. It is argued that he erred on the issue of whether the appellant was in contact with her family. In her evidence she had said that she did not know where any of her family were, did not have their contact details and did not know how to find them. It is argued that he failed to take this evidence into account when concluding that the appellant appeared to have made no enquiries and to have closed her mind to any relatives she might have in Nigeria.

15. Further, the judge had relied on the support the appellant was receiving from her friends and church as a basis for concluding that there would be adequate support on return. It is argued that this was not an adequate basis for such a finding. He had accepted that the appellant had significant mental health issues, but the background evidence indicated that there was very little provision for mental health care in Nigeria and such that was available was expensive to access. It is argued that there was no basis in the evidence for the judge to conclude that the appellant could continue to receive adequate support on return to Nigeria. There would be no adequate financial and material support on return and in the absence of such support the appellant would face destitution and severe harm as a result of her poverty and serious mental health conditions which would amount to very significant obstacles to integration.

16. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal. When granting permission the judge commented that whilst the judge gave cogent reasons for finding that the removal of the appellant would be proportionate in the light of the public interest, it was just arguable that she erred in failing to consider the impact of removal on the appellant's physical and moral integrity in the light of her accepted mental health difficulties which, along with other accepted difficulties she faced, cast doubt on the safety of the conclusion on proportionality. There was less arguable merit in ground one, but all the grounds could be argued.

17. In her submissions, Ms Butler argued that the judge had erred in law by failing to engage sufficiently with the complex picture relating to the appellant's functionality in the UK and the predicted deterioration of her condition on return to Nigeria. Further, the judge had misunderstood the nature of the support the appellant was receiving in the UK. The support was in the form of accommodation, pastoral and emotional support but it was wrong to proceed on the basis that it included funding or would lead to the appellant receiving such support in Nigeria, where treatment would generally require substantial funds. The judge had also failed to take into account the background evidence that individuals with mental health conditions would be stigmatised. The judge had further erred when he said that the appellant had made no effort to contact relatives in Nigeria when her evidence was that she had lost their contact details and so could not make contact. So far as ground one was concerned, she submitted that the conclusions by Professor Aguilar deserved some weight as conclusions reached by a recognised expert who could speak from his own experience.

18. Mrs Jones submitted that the psychological report had to be looked at in the context that the expert had not had access to all the evidence including the interviews and the reasons for refusal decision. The appellant's claim could not succeed under article 3 whether on health or trafficking grounds. When the decision was read as a whole, it was clear that the judge had reached a reasoned decision properly open to him on the evidence. In respect of ground one the judge's comment on the contents of the report being academic at (71) must be read in the context of the decision as a whole. Regardless of this evidence, the judge had been fully entitled to reach his decision on whether the appellant would be at risk of serious harm on return. In respect of ground two, the issue of proportionality had to be looked at in the light of the findings on credibility. It was for the judge to decide what inferences could be drawn from the evidence and there was no reason to believe that he misunderstood that evidence.

Consideration of whether the First-tier Tribunal erred in law.

19. I will deal first with ground one which argues that the judge failed to deal adequately with or to give sufficient reasons for taking the view that the appellant, as a single woman without a male protector, would not be at risk as someone perceived to be witch. There is no substance in this ground. When dealing with the asylum claim the judge dealt with the issue of whether the appellant would be at risk from her husband's relatives and whether there would be a risk arising from being trafficked. These claims were rejected on credibility grounds and there has been no challenge to these findings. The judge considered the evidence of Professor Aguilar and his suggestion that the appellant might be culturally associated with being a witch. The judge was entitled to find that whilst the expert had dealt with the academic background which might support such a claim, there was no adequate basis in the evidence that the appellant, in her particular circumstances, would be at such risk as the expert had not dealt with the prevalence of the problems and the vulnerability of persons to such accusations. In any event, in the light of the judge's credibility findings and, in particular, that the appellant was not any risk from her late husband's family, there was no adequate basis in the evidence to support a finding that she would be at real risk of ill-treatment as a perceived witch.

20. Turning to ground two, the nub of the grounds and submissions is that the judge failed to take all relevant matters into account when assessing proportionality. It was common ground that the appellant had no family life in the UK but that article 8 was engaged on private life grounds. It is argued that there was a complex picture so far as the appellant's circumstances were concerned, which indicated that she had limited functionality in the UK and that her condition would deteriorate on return to Nigeria. The judge accepted that the appellant showed symptoms of PTSD and associated conditions but was not satisfied that they arose because she had been kept in a state of modern slavery or had been trafficked. Whilst accepting that the appellant did suffer from conditions identified in the psychological report, he was entitled to find that they did not arise for the reasons claimed.

21. He took into account the appellant's current treatment [68] and found that the relevant medication was available in Nigeria [78]. He accepted that there was a distinction between potential availability and the ability of a person to access it. There is, therefore, no reason to believe that the judge failed to consider the impact of removal on the appellant's physical and moral integrity. The judge also considered the evidence about the appellant being dependent on friends and her church. Whether the support was in the form of accommodation or pastoral and emotional support and not direct financial support does not undermine his comment that it was surprising that she had not sought to explain why at least some basic support from them could not continue in practical terms were she to be returned to Nigeria.

22. The judge also commented on the fact that the appellant appeared to have made no effort to trace her relatives in Nigeria. It is submitted that he had misunderstood the evidence as the appellant had given evidence that she had lost contact with any relatives and did not know how to contact them. However, it was for the judge to assess as an issue of fact the potential support available to her, whether from people in this country or from relatives in Nigeria. He was also entitled to note the evidence at the hearing before Judge Baldwin that the appellant had been supported by one of her husband's cousins and was said to have a close family relationship with his family and particularly his children [78]. In the light of these findings it was open to the judge to find that the appellant had prospects of support, that there were no very serious obstacles to her reintegration in to Nigeria and that she could not succeed in respect of the private life claim under the Rules.

23. When assessing the issue of proportionality, the judge took into account the factors on the public interest side of the balance ([79] already referred to at [12] above). In the light of these factors, I am satisfied that the judge was fully entitled to find that removing the appellant would be proportionate to a legitimate aim and that the public interest in maintaining effective immigration control outweighed such interference as there would be with the appellant's private life including her physical and moral integrity. In summary, the grounds do not satisfy me that the judge erred in law. His findings and conclusions were properly open to him for the reasons he gave.

Decision.

24. The First-tier Tribunal did not in law and the decision to dismiss the appeal stands. The anonymity direction made by the First-tier Tribunal remains in force until further order.

Signed: H J E Latter Dated: 17 January 2019

Deputy Upper Tribunal Judge Latter