Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02019/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 March 2018
On 2 May 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR N B
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Ms J Isherwood, Senior Home Office Presenting Officer
For the Respondent: Miss A Smith of Counsel

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
2. This is an appeal by the Secretary of State against the decision of the First-tier Tribunal. To avoid confusion I will refer to the Secretary of State as such throughout and to Mr N B as the claimant.
3. The claimant is a citizen of Egypt who was born on 15 May 1980. He is and was born a Coptic Christian. He last entered the UK (having visited several times previously) on 3 June 2014 with his parents. He claimed asylum on 6 June 2014. The basis of his claim is that he fears persecution, because of his religion, from non-state actors in Egypt and that there is not a sufficiency of protection from the state.
4. The Secretary of State refused the claimant's asylum claim on 10 February 2017. It was accepted that he was a Coptic Christian but the account of persecution, assault and detention were not accepted. The Secretary of State considered that the claimant could relocate safely within Egypt.
The appeal to the First-tier Tribunal
5. The claimant appealed against the Secretary of State's decision to the First-tier Tribunal. In a decision promulgated on 7 December 2017 First-tier Tribunal Judge S K Kaler allowed the claimant's appeal. The First-tier Tribunal found that the claimant faced persecution at the hands of one particular individual who was influential and that the appellant did seek to relocate but was not safe.
6. The Secretary of State applied for permission to appeal against the First-tier Tribunal's decision and on 4 January 2918 First-tier Tribunal Judge Chohan granted permission to appeal.
7. The grounds of appeal in essence argue that the First-tier Tribunal Judge failed to consider adequately the issues of sufficiency of protection and internal relocation. It is agued that the judge failed to adequately analyse the evidence, that the judge failed to give reasons or adequate reasons for departing from a country guidance case and that the judge failed to consider properly the objective evidence.
The hearing before the Upper Tribunal
Submissions
8. Ms Isherwood submitted that the decision was extremely brief and that there had been no proper assessment of the claim. She referred to paragraph 33 of the decision and submitted that it is clear that the judge has not assessed the evidence as a whole. The evidence was simply that the claimant had received a phone call after he had re-located. Nothing had actually happened to the claimant after he had moved. The claimant was offered an inflated price for his property - this does not demonstrate that he was being 'shoved out'. The judge has not reasoned and analysed the evidence.
9. Ms Isherwood noted that the case law of MS (Coptic Christians: Egypt) CG [213] UKUT 611 IAC makes clear that even if an claimant does not fall within the risk categories identified (which this claimant does not) they may be able to establish a risk of persecution on the particular facts of a case if he/she have been the target of attacks because he/she is a Coptic Christian. In this case there is no real assessment by the judge as to whether or not the claimant has been targeted because he is a Coptic Christian. The judge has not engaged properly with the conclusions reached in MS. She referred in particular to paragraphs 119 - 122 and 137-139. The judge has not applied MS to the facts of this case in particular there is no real analysis of sufficiency of protection and internal relocation.
10. She referred to paragraph 31 of the decision and argued that the judge has failed to explain why so much weight should be placed on the reports of Dr Joffe and Dr Green so as to depart from the CG case of MS.
11. Miss Smith relied on the Rule 24 response. There are 2 grounds of appeal by the Secretary of State - i) failure to deal adequately with sufficiency of protection and internal relocation and ii) insufficient evidence for the judge to depart from the MS case. She submitted that it was incorrect to say that the judge has departed from the MS case. The judge specifically refers to the case, notes that there has been an increase in violence since MS was decided but this observation was not a departure from the case as is plain from the judge's comment in paragraph 32 where the judge notes that the categories are not closed and one must look at the circumstances of each case. The claimant accepts that he does not fall within the four specific risk categories identified in MS. Reliance is placed on paragraph 151(7) of MS.
12. The judge applied MS to the facts of the case. Having considered the evidence at paragraphs 22-31 the judge gave reasons why she accepted the claimant's evidence and found that the claimant had been targeted because he is a Coptic Christian and had established a real risk of persecution on the particular facts of the case.
13. The judge did consider sufficiency of protection and internal relocation. There is no appeal by the Secretary of State against the finding that the claimant's persecutor was 'influential'. In this case the claimant had attempted to avoid persecution by relocating. The man had tracked him down and had made threatening phone calls. The judge had considered the objective evidence when considering sufficiency of protection. She considered the evidence of two well-known country experts. Dr Joffe's report at paragraph 166-170 gave details of the difficulties faced by Coptic Christians seeking to relocate. He explained that it is relatively easy for an influential person to gain access to systems. He set out that there was no adequate state protection from personal attacks, which is consistent with the claimant's account. Ms Smith took me to various paragraphs in the reports. Both experts considered internal flight was not a viable option. The judge took this objective evidence together with the claimant's account into consideration. The finding was open to the judge.
14. In reply Ms Isherwood submitted that the fact that the claimant's representative had had to take me at length to various paragraphs in the reports supported the fact that the judge had not adequately set out the reasons for her findings. The judge has simply noted the matters raised in the reasons for refusal letter but there has been no analysis of the Secretary of State's arguments - the judge has not given a balanced view. It is not clear from the decision how the judge arrived at her conclusions.

Discussion
15. Dealing firstly with the assertion that the judge departed from the CG case of MS. I accept Ms Smith's submission that the judge did not in fact depart from the MS case when the decision is considered overall. With regard to the claimant's risk of persecution from a non-state actor and state protection, at paragraph 32, the judge refers to the MS case:
"... Coptic Christians do face discrimination and acts of violence in Egypt. The government has tried to impose changes but all the background evidence tells me that they have not been very effective and the changes promised have not been implemented. The numerous reports submitted for the Appellant show that violence and acts of persecution have increased since the case of MS was decided in 2013. The categories mentioned are not closed and one must look at the circumstances if each case.
33. I have accepted that this Appellant faced persecutory treatment at the hands of one particular individual in Cairo who was influential because he managed to get his "supporters" to target this Appellant. It may be that he wanted to chase him out of his apartment so as to "cleanse " the block..."
16. The Secretary of State accepted at the hearing (as set out above) that a claimant does not have to fall within the identified risk categories. There was no appeal against the factual findings made by the judge with regard to the claimant's account of what happened to him, the lack of response and failure by the police to take action and that Mr El Banan was influential. As set out in paragraph 7 of the headnote to MS:
"7. None of the above necessarily precludes a Coptic Christian in Egypt from being able to establish a real risk of persecution or ill-treatment in the particular circumstances of their case, e.g. if such an individual has been the target of attacks because he or she is a Coptic Christian."
17. On the facts of this case the finding that the claimant faced persecution at the hands of a non-state persecutor and that the state was not willing to take action to protect him was open to her and was not a departure from the case of MS.
18. The main thrust of the Secretary of State's argument is the judge's analysis of internal relocation. It is asserted that the analysis is inadequate and that failure to act at one police station does not mean there is an insufficiency of protection nationwide.
19. MS at headnote 6 sets out:
"If a claimant is able to establish that in their home area they fall within one or more of the risk categories identified in 3 (i)-(iv) above or that they come from an area where the local Coptic population faces a real risk of persecution, it will not necessarily follow that they qualify as refugees or as beneficiaries of subsidiary protection or Article 3 ECHR protection. That will depend on whether they can show they would not have a viable internal relocation alternative. In such cases there will be need for a fact-specific assessment but, in general terms, resettlement in an area where Islamists are not strong would appear to be a viable option."
20. I accept that the analysis of internal relocation by the judge is brief. The judge at paragraph 19 records the claimant's evidence and notes that:
"? Following this incident, [the assault] the family relocated to an uncle's villa 100 miles from Cairo in February 2014. In May 2014, the Appellant received a telephone call from a man who said he was calling on behalf of El Banan and he was going to find the Appellant. The police advised him to stay away from El Banan. The Appellant returned home and tried to leave the country."
21. As set out above the judge, at paragraph 32, noted that the background evidence indicates that the government's protection measures have not been very effective and the changes promised have not been implemented.
22. In MS it was considered that in general terms internal relocation to an area where Islamists are not strong was a viable option. However, if an appellant can show that he does not have a viable internal relocation option then he will qualify as a refugee. As stated in MS there must be a fact specific assessment.
23. In the headnote at paragraph 1 in MS it was noted that:
1. Notwithstanding that there is inadequate state protection of Coptic Christians in Egypt, they are not at a general risk of persecution or ill-treatment contrary to Article 3, ECHR.
24. The judge accepted the claimant's account of persecution and the failure of the police in Cairo to take any action, that he relocated some 100 miles away, that despite relocation he was subjected to a threatening phone call, and that in response the police merely told him to keep away from El Banan. Although the Secretary of State argued that 'all that happened was a phone call' in the place of relocation this does not reflect the background. The facts as accepted by the judge were that the appellant had been assaulted, had his car burnt out, been intimidated regarding purchase of his apartment, been arrested and detained, that his dog had been poisoned and other incidents. The fact that the persecutor was influential and had managed to track him down after such incidents is the background against which the phone call is to be assessed. The judge did undertake a fact specific assessment of the claimant's internal relocation option. Her findings were not a departure from the MS case.
25. Although the reasoning was brief when considered as a whole the judge gave sufficient reasons for her decision. The findings were ones that were open to her on the facts of the case.
Notice of Decision
The Secretary of State's appeal against the decision of the First-tier Tribunal is dismissed. The decision of the First-tier Tribunal stands.

Signed P M Ramshaw Date 27 April 2018

Deputy Upper Tribunal Judge Ramshaw