Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01947/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 22 February 2017
On 07 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
UPPER TRIBUNAL JUDGE CHALKLEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

r a a a
(ANONYMITY DIRECTION made)
Respondent

Representation:

For the Appellant: Mr A McVeety, Senior Home Office Presenting Officer
For the Respondent: Mr M McGarvey of
McGarvey Immigration & Asylum Practitioners Ltd

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) we make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Respondent (R A A A). This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. Although this is an appeal by the Secretary of State, for convenience we will continue to refer to the parties as they appeared before the First-tier Tribunal.
Introduction
3. The appellant is a citizen of the Yemen who was born on 1 December 1980. He arrived in the United Kingdom in 2005 with leave in order to exercise his rights of access as a parent. That leave was subsequently extended until 15 April 2010. An application for further leave was refused and his subsequent appeal dismissed. Permission to appeal to the Upper Tribunal was refused on 19 December 2010.
4. On 29 May 2012, the appellant claimed asylum. That claim was withdrawn on 19 June 2012 and a fresh application made on 18 September 2015. The Secretary of State refused that application on 10 February 2016 on asylum, humanitarian protection and human rights grounds.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal (Judge Page). Before Judge Page, the appellant’s legal representative no longer pursued the appellant’s asylum claim or human rights claim based upon Art 8 of the ECHR. The appellant relied solely upon a claim to humanitarian protection under Art 15(c) of the Qualification Directive (Council Directive 2004/83/EC) on the basis that there was a situation of “international or internal armed conflict” in Yemen which created a “serious and individual threat” to the appellant on return “by reason of indiscriminate violence”.
6. Judge Page allowed the appellant’s appeal on the basis that the appellant had established an entitlement to humanitarian protection under Art 15(c). He also allowed the appeal under Art 3 of the ECHR.
The Appeal to the Upper Tribunal
7. The Secretary of State sought permission to appeal to the Upper Tribunal on two grounds. First, Judge Page failed to appreciate and apply the “high threshold” of indiscriminate violence required to engage Article 15(c) of the Qualification Directive and that only “exceptionally” would Art 15(c) be engaged. Secondly, Judge Page failed to give adequate reasons for his finding that all civilians in Yemen were at risk.
8. On 17 November 2016, the First-tier Tribunal (Judge Froom) granted the Secretary of State permission to appeal.
9. On 16 February 2017, the appellant served a rule 24 response seeking to uphold the judge’s decision.
Discussion
10. Mr McVeety, in his oral submission contended that the judge had been wrong to apply in para 20 the “low standard of proof” in finding in favour of the appellant. He submitted that the correct test, which is set out in Art 2(e) of the Qualification Directive, was that in order to establish a claim for “subsidiary protection” or “humanitarian protection” an individual had to establish that:
“substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, … would face a real risk of suffering serious harm as defined in Art 15 …”
11. As we pointed out to Mr McVeety at the hearing, this formulation is precisely that adopted by the Strasbourg court when considering, for example whether a breach of Art 3 of the ECHR is established (see, Soering v UK (1989) 11 EHRR 439). That standard is frequently phrased as requiring the individual to establish a “real risk” of serious ill-treatment. That standard in turn reflects that used in asylum cases, originally phrased as a “reasonable degree of likelihood” (see R v SSHD, Ex p Sivakumaran [1988] Imm AR 147). Consequently, it is clear beyond a per adventure that the formulation of “real risk” reflects a common lower standard of proof in international protection cases. The point is made in PS (Sri Lanka) v SSHD [2008] EWCA Civ 1313 where Sedley LJ stated (at [11]):
“The single test to whether a fear of persecution or ill-treatment is well-founded is whether on the evidence there is a real risk of its occurrence or re-occurrence. This straightforward formula now replaces the sometimes confusing variance which had been used over the years in the leading cases here and abroad …”
12. In para 6 of his determination, Judge Page set out the “lower” standard of proof in the context of an asylum claim. Then at para 8, in relation to humanitarian protection, he set out the standard of proof requiring: “substantial grounds for believing that they would, if returned to the country of origin, face a real risk of suffering serious harm.” There is no doubt, therefore, that when Judge Page referred to the “low standard of proof” in para 20 he was clearly referring back to the formulation required by Art 2(e) for the appellant to establish his claim to humanitarian protection.
13. We, therefore, reject the Secretary of State’s submission, as set out in the grounds, that the judge applied the wrong standard of proof in allowing the appellant’s appeal on humanitarian protection grounds.
14. The Secretary of State’s contention therefore boils down to an argument that Judge Page was not entitled as a matter of law to find on the basis of the evidence that the appellant faced a real risk of indiscriminate violence as a result of the internal armed conflict in Yemen. Before us, Mr McVeety accepted on behalf of the Secretary of State that an Art 15(c) risk existed in the Yemen for civilians apart from in Aden.
15. It is not entirely clear to us, and neither representative was able to help us on this matter, whether the focus of the Secretary of State’s argument before Judge Page was upon the risk to the appellant in Aden. There is some reference to Aden in the judge’s Record of Proceeding but we were unable to read the judge’s handwriting sufficiently to resolve the matter. It does, however, appear that Counsel for the Secretary of State at the hearing did not contest the objective evidence, to which Judge Page makes extensive reference, but rather argued that the appellant’s home town in the south of Yemen was a “contested area” but was a place where he had family and that “the risk to the appellant could be mitigated by the fact that he has ‘people to rely on there’” (see para 17 of the determination). Counsel’s argument, as recorded by the judge, was that:
“The appellant’s familiarity with the area where he had lived when there and the contact he would have with people he knew there would enable him to ‘avoid going to the areas where there is trouble’” (see para 17).
16. It does not appear that the Secretary of State relied upon internal relocation. Mr McVeety accepted in his submissions that the Secretary of State’s present grounds did not raise any challenge, or rely upon, internal relocation.
17. The appellant’s position before the judge, as put by his Counsel, was that the appellant could not be expected to live in his home area which was a “contested area” and that it would not assist the appellant to have lived there and have knowledge of the area to avoid the risk to him. Further, there was no reasonable “internal relocation” option.
18. In his determination, Judge Page did not accept that the real risk he found to exist throughout the Yemen could be effectively avoided by the appellant by, as he put it:
“duck[ing] and div[ing] around an area where he lived before and be safer than other members of the community by reason of the fact that the area is familiar to him and possibly may have people there he could turn to for help.”
19. That finding is not challenged in the grounds and we see no reason to doubt its sustainability.
20. In truth, therefore, the Secretary of State’s case – at least now – must be that the evidence before the judge did not entitle him to find, bearing in mind the “high threshold” to establish a breach of Art 15(c) (see Elgafaji v Staatssecretaris Van Justitie (Case C-465/07) [2009] Imm AR 3, especially at [37] and [38]).
21. The judge was referred to a body of recent background material dealing with the accepted conflict in Yemen and its exacerbation since the Saudi coalition entered the conflict in March 2016. In addition, the appellant relied upon an expert report by Dr Fatah dated 9 September 2016.
22. It was accepted by Counsel for the Secretary of State that the respondent’s refusal had predated the most recent Home Office guidance on the security and humanitarian situation in the Yemen dated April 2016. At paras 13-14, Judge Page set out the Secretary of State’s own guidance in relation to Yemen as follows:
“13. …. I give the respondent’s evidence particular weight at pages 23-49. The respondent has said, in the country guidance, that since the Saudi coalition entered the Yemeni conflict in March 2016 nearly 6,000 people have been killed, almost half of them civilians. The war has exacerbated hunger and disease in Yemen, the Arabian Peninsula’s poorest country. The Foreign and Commonwealth Office have observed in its travel advice for UK nationals up to 26 January observed that from 26 March 2015 a coalition, led by Saudi Arabia, began airstrikes in Yemen following a request for support from President Hadi, who has established a government in exile in Riyadh. Reports of violence, reprisal killings, looting and human rights abuses continue across the country. There is potential for increased tensions on Fridays. Efforts are underway to bring Yemeni parties to the conflict into UN broker peace talks. The political insecurity situation there remains uncertain and volatile.
14. The humanitarian situation recorded at paragraph 7 of the respondent’s country guidance says that on 22 November 2015, before the current crisis, Yemen faced enormous levels of humanitarian in need, with 15.9 million people (61% of the population) requiring some kind of humanitarian assistance in late 2014. These needs stem from years of poverty, under-development, environmental decline, intermittent conflict, and weak rule of law – including widespread violations of human rights. The respondent’s country guidance makes disturbing reading and here I am only referring to a selection of the objective evidence that the appellant has replied on. Hundreds of thousands of children now live in appalling conditions that are largely caused by widespread use of child soldiers, unlawful killing, rape and other acts of sexual violence, abduction, enslavement and forced marriage, displacement and blockage of or obstruction to humanitarian aid, and indiscriminate use of heavy artillery and other deadly weapons. The ongoing deadly violence in Yemen has left nearly 10 million children facing threats of malnutrition and disease. There is continuous bombardment and street fighting. There has been damage to the infrastructure with damage to main roads and bridges, hospitals have been hit in the bombing. There are more than 2.5 million internally displaced persons in Yemen. 14.4 million people are now “food insecure”. Severely food insecure people are estimated at 7.6 million, those requiring immediate emergency food assistance. Deteriorating health services are seeking scarce health services from ever fewer facilities, most of which are under-resourced and over-burdened.”
23. Then at para 15, Judge Page set out the FCO’s advice to British citizens advising against all travel to Yemen:
“15. The Foreign and Commonwealth Office (FCO) Yemen travel advice advises against all travel to Yemen. This includes the mainland and all islands. The advice to British subjects is that if they are in Yemen, they should leave immediately. Yemen remains very tense and unstable and the security situation throughout the country is dangerous and in some areas it is unclear which faction has control.”
24. The high level of degradation, violence and humanitarian crisis is readily apparent from the respondent’s own guidance. Then at para 16, Judge Page set out the opinion of Dr Fatah as follows:
“16. Dr Rebwar Fatah in his report dated 9 September 2016 has repeated much of the objective evidence that the Home Office country guidance contains. There is no dispute between the appellant and the respondent about general conditions in Yemen. At paragraph 156 Dr Rebwar Fatah has said ‘the presence of aid agencies in all 22 governorates of Yemen indicates that the conflict in Yemen has resulted in a humanitarian crisis affecting civilians throughout the country’. At paragraph 166 Dr Rebwar Fatah has said:
‘The most prominent risk to [the appellant] is that which most Yemeni civilians face on a daily basis. High figures of civilians, as stated in the sections above, have been caught in crossfire between warring factions, drone strikes conducted by proxies, and suicide bombings.’
At paragraph 167 Dr Rebwar Fatah says that there had been reports that drone strikes have been deliberately targeting civilians in Yemen.”
25. As we have already observed, Mr McVeety accepted on behalf of the Secretary of State that the situation in Yemen, apart from Aden, created an Art 15(c) risk for civilians. Dr Fatah’s report equates the situation in Yemen as existing throughout the country.
26. The judge was required to make that decision on the basis of the evidence before him in the absence of any country guidance. In our judgment, it was properly open to Judge Page on the basis of the background evidence and expert report before him to conclude that the situation in Yemen was, indeed, an “exceptional” one where there was a real risk that the appellant (as a civilian) would be exposed to serious harm in the form of indiscriminate violence arising from the armed conflict occurring in Yemen. We are unable to conclude that it was perverse or irrational of the judge to reach the positive finding that he did on the evidence. His decision was within the range of reasonable decisions that could be reached on the evidence.
Decision
27. For these reasons, the First-tier Tribunal’s decision to allow the appellant’s appeal on humanitarian protection grounds did not involve the making of a material error of law and the decision stands.
28. Whilst we have some concerns as to the basis upon which the judge also allowed the appeal under Art 3 of the ECHR, the Secretary of State has not sought to challenge that decision in her grounds of appeal and so that decision also stands.
29. Accordingly, the Secretary of State’s appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date