Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01920/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 12 December 2016
On 11 January 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

B E A
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Hussain, Legal Justice Solicitors
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I have remade the decision having found, in a decision promulgated on 24 October 2016, that the First-tier Tribunal had erred in law. My reasons for making that latter finding were as follows:
"1. The appellant, BEA, was born in 1987 and is a female citizen of Nigeria. She has a child (O) who was born in 2013 and who is a dependant on her claim/appeal. She appealed to the First-tier Tribunal (Judge Manchester) against the decision of the respondent dated 7 October 2015 refusing to grant her asylum/humanitarian protection. The First-tier Tribunal, in a decision promulgated on 8 July 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. Before the Upper Tribunal, Miss Pickering did not rely upon grounds 1 and 2. She did seek to rely upon grounds 3 and 4. The appellant is a victim of trafficking form Nigeria and fears returning to that country on account of threats from her father and where her daughter may be compelled to undergo female genital mutilation (FGM).
3. Judge Manchester recorded at [34]:
"However, there was in this case an accepted factual basis set out in the decision, namely that the appellant was a victim of trafficking to the United Kingdom and that, if her father were able to locate her, he would perform FGM on her daughter. It is therefore taking that accepted factual basis that the issue of risk on return falls to be addressed and I propose to take each of the aspects forming that factual basis in turn."
4. The judge went on to observe that the appellant had not had any contact with her father for over twenty years including over fifteen years when she had been living in Nigeria before coming to the United Kingdom. The father had, of course, never encountered the appellant's daughter.
5. Judge Manchester's assessment of the internal flight alternative is problematic. He appears to have assumed that the appellant would not return to the part of Nigeria where she was born and brought up and where her father is living. However, it should, as a matter of good practise, have first considered whether the appellant might return to her home area of Nigeria. Only if he concluded that she could not do so (and I assume that he did so conclude especially in light of the agreed factual matrix including the risk of FGM) that he needed to consider whether it would be unduly harsh to expect the appellant to relocate outside her home area. Instead, the judge appears to assume [36] that in a country the size of Nigeria the appellant's father would not be likely to discover that she had returned. The judge assumes that the appellant will return to an area of Nigeria where FGM is unlikely to be practised by strangers upon her daughter. The proper test for exercising the internal flight alternative (undue harshness) is not referred to in terms.
6. The judge accepts that the appellant and her daughter will need to seek the shelter and support offered by strangers including the government agency (the National Agency for the Prohibition of Traffic in Persons - NAPTIP). In a pivotal paragraph in the decision, Judge Manchester wrote:
"Although I have been referred to various aspects of the more up-to-date country evidence by Miss Pickering, it is clear from the EASO Report at page 125 that NAPTIP operates mine shelters intended for victims of human trafficking and his task, inter alia, is identification and reception of victims, sheltering, counselling and training, family tracing, integration and empowerment and follow-up. Indeed, despite continuing concerns as to the adequacy of funding, the dual role of prosecuting traffickers and possible corruption, it has reportedly rescued and rehabilitated 3,000 trafficking victims in ten years. In this case, although it is clear that shelters may not be designed for long-term support, there is no reason why the appellant and her child or her two children could not be given that support and protection sufficiently long to assist in her re-integration given her obvious vulnerability including the risk of re-trafficking and, if she wishes, being reunited with her elder sister. Further, although there are concerns about the availability of assistance at the airport on arrival as highlighted at page 123, this appears to be resolvable by proper notification being given to NAPTIP of a person's intended arrival."
7. The appellant argues that, given the number of years that she has been absent from Nigeria, it would be virtually impossible to relocate her sister from whom she has been estranged. I agree. The reference to the appellant's elder sister at [45] is the only attempt made by the judge to consider the appellant and her child's medium and longer-term re-settlement in Nigeria. He seems to consider the question of the appellant being reunited with the sister as a matter of choice ("if she wishes"); he has not addressed whether it is reasonably likely that the appellant would be able to contact the sister at all. There is also no indication of what might happen to the appellant and her child if she is not reunited with her sister or if the sister were to reject the burden of caring for the appellant and her child in the longer term. This is of concern given that the judge acknowledges that the shelters to which he believes the appellant and her child may reasonably be expected to have access provide only short-term support.
8. There is a further problem. The judge relied on PO (Nigeria) [2011] EWCA Civ 132. In that judgment, the Court of Appeal noted the conflict between the expert evidence adduced by both parties as regards the possibility that children under the age of 8 years might be accommodated at NAPTIP shelters. On the one hand, there appeared to be evidence that a young baby would be admitted to a shelter "without delay" whilst other expert evidence suggested that only children aged 8 and above would be accommodated. I agree with Miss Pickering that Judge Manchester at [45] appears to be addressing only the appellant and that he has failed to acknowledge that particular problems might arise as regards access to shelters because the appellant is accompanied by a young child. Any reasoned consideration of the child in the context of the background material is missing.
9. In the light of what I have said, I set aside the First-tier Tribunal decision. The decision will be re-made in the Upper Tribunal before Upper Tribunal Clive Lane on a date to be fixed. I understand that the Upper Tribunal may imminently give country guidance on the risk on return to Nigeria of single trafficked women. It is to be hoped that that guidance will be available before the date fixed for the resumed hearing.
Notice of Decision
The decision of the First-tier Tribunal promulgated on 8 July 2016 is set aside. The Upper Tribunal will re-make the decision following a resumed hearing before Upper Tribunal Judge Lane. That hearing will be fixed on the first open date after 1 December 2016."
2. At the resumed hearing at Bradford on 12 December 2016, I did not hear any oral evidence although the appellant did attend with her child. The hearing proceeded by way of submissions only.
3. The Upper Tribunal has now provided country guidance in the decision of HD (trafficked women) Nigeria CG [2016] UKUT 00454 (IAC). The guidance reads as follows:
"1. The guidance set out in PO (trafficked women) Nigeria [2009] UKAIT 00046 at paragraphs 191-192 should no longer be followed.
2. Although the Government of Nigeria recognises that the trafficking of women, both internally and transnationally, is a significant problem to be addressed, it is not established by the evidence that for women in general in Nigeria there is a real risk of being trafficked.
3. For a woman returning to Nigeria, after having been trafficked to the United Kingdom, there is in general no real risk of retribution or of being trafficked afresh by her original traffickers.
4. Whether a woman returning to Nigeria having previously been trafficked to the United Kingdom faces on return a real risk of being trafficked afresh will require a detailed assessment of her particular and individual characteristics. Factors that will indicate an enhanced risk of being trafficked include, but are not limited to:
a. The absence of a supportive family willing to take her back into the family unit;
b. Visible or discernible characteristics of vulnerability, such as having no social support network to assist her, no or little education or vocational skills, mental health conditions, which may well have been caused by experiences of abuse when originally trafficked, material and financial deprivation such as to mean that she will be living in poverty or in conditions of destitution;
c. The fact that a woman was previously trafficked is likely to mean that she was then identified by the traffickers as someone disclosing characteristics of vulnerability such as to give rise to a real risk of being trafficked. On returning to Nigeria, it is probable that those characteristics of vulnerability will be enhanced further in the absence of factors that suggest otherwise.
Factors that indicate a lower risk of being trafficked include, but are not limited to:
a. The availability of a supportive family willing to take the woman back into the family unit;
b. The fact that the woman has acquired skills and experiences since leaving Nigeria that better equip her to have access to a livelihood on return to Nigeria, thus enabling her to provide for herself.
6. There will be little risk of being trafficked if received into a NAPTIP shelter or a shelter provided by an NGO for the time that she is there, but that support is likely to be temporary, possibly for just a few weeks, and there will need to be a careful assessment of the position of the woman when she leaves the shelter.
7. For a woman who does face a real risk of being trafficked if she returns to her home area, the question of whether internal relocation will be available as a safe and reasonable alternative that will not be unduly harsh will require a detailed assessment of her particular circumstances. For a woman who discloses the characteristics of vulnerability described above that are indicative of a real risk of being trafficked, internal relocation is unlikely to be a viable alternative.
4. For the Secretary of State, Mrs Pettersen acknowledged that the appellant had been trafficked but submitted that there was no reason to suppose that she would be targeted again by her previous traffickers on return to Nigeria. She also submitted that the circumstances in which the appellant would return to Nigeria were not as bad as those of the appellant in HD. It would be possible for the appellant to obtain support from her sister in Nigeria. Finally, she submitted that the appellant is now more mature than at the time when she first entered the United Kingdom having been trafficked. She did, however, accept that the appellant now has two very young children and is a single mother. Mrs Pettersen accepted that those circumstances are likely to make the family more vulnerable on return.
5. I agree with Ms Hussain that it is generally unhelpful to compare the facts of an appellant in a country guidance case with those of other appellants; country guidance exists to provide general principles rather than to encourage comparisons with other appeals which need to be decided by reference to their own facts. Ms Hussain submitted that the appellant was very vulnerable. I agree. She had no obvious support network available to her in Nigeria. She has received little education and has two young female children who are in her sole care. With regard to paragraph 4(c) of the headnote in HD, the appellant may be a little older now than she was when she came to the United Kingdom but she still possesses the characteristics which led to her being trafficked in the first instance. Indeed, her vulnerability has increased because she now has the care of her two young daughters. Further, Ms Hussain submitted that the appellant falls firmly into the category of [6] of the country guidance of HD; she may be able to access a shelter in the short term but, with no family or other support, her medium term prospects in Nigeria would be bleak. I agree with that submission also. As regards the presence of the appellant's sister in Nigeria, I refer to my error of law decision (see above) at [6]. The safety of this appellant and her young children cannot be predicated on the very flimsy basis that she would be able to contact and then be reunited with a sister from whom I accept she has been estranged. I find that it is reasonably likely that the appellant would not be able to find any family support available to her in Nigeria.
6. In the circumstances, I find that the appellant falls very firmly into the category of returnee facing real risk as identified by the Tribunal in HD. Consequently, her appeal is allowed.

Notice of Decision
Having set aside the First-tier Tribunal's decision, I have remade the decision. This appeal is allowed on asylum grounds. This appeal is allowed on human rights grounds (Articles 2/3 ECHR). The appellant is not entitled to a grant of humanitarian protection.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 1 January 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date 1 January 2017

Upper Tribunal Judge Clive Lane