Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02247/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 May 2016 & 15 September 2016
On 20 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Ahmed [A]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Seelhoff, Solicitor
For the Respondent: Mr S Kandola, Home Office Presenting Officer (26 May 2016)
Mr L Tarlow, Home Office Presenting Officer (15 September 2016)

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal (Judge Abebrese) who dismissed his appeal against the respondent's decision dated 15 October 2015 refusing him asylum.

Background

2. The appellant is a citizen of Yemen born on 19 April 1932. His wife, also a citizen of Yemen, born on 9 February 1942 is his dependant in this application. The appellant and his wife left their home in Yemen in early April 2015 travelling by boat. They were transferred to a larger ship and then travelled to Djibouti arriving on 11 April 2015. They stayed for four nights in a refugee camp and then took a flight to the UK arriving on 15 April 2015. The appellant had previously been granted visit visas for the United Kingdom and had most recently applied for a visit visa on 26 March 2014, the visa being issued on 7 April 2014 with an expiry date of 7 April 2019. The appellant applied for asylum on 27 April 2015.

3. He claimed that he was forced to flee Yemen due to the general security situation there. He had not suffered any direct problems but had lost all his property. The respondent found that the appellant had failed to demonstrate that he fell into any specific risk category: on his own admission nothing had happened directly to him nor did he fear anyone or anything other than the general security situation in Yemen. The respondent considered whether it would be right to grant humanitarian protection but she was not satisfied that the security situation met the threshold required to amount to a real risk of threat to his life or person. She did not accept that he would be at risk on the basis of his generalised fear. Further, she was not satisfied that the appellant was able to meet any of the requirements of the Rules for leave to enter or that there were exceptional circumstances warranting a grant of leave outside the requirements of the Rules.

The Hearing before the First-tier Tribunal

4. At the hearing before the First-tier Tribunal the respondent argued that the objective material on Yemen showed that the country was in conflict and undergoing a general deterioration which was particularly acute in north and central Yemen but the situation was better in south Yemen. It was submitted that the situation in the appellant's home area was not as bad as represented and that the high threshold had not been satisfied for a grant of humanitarian protection.

5. On behalf of the appellant it was argued that the country situation was such that so far as the appellant and his wife were concerned the requirements of article 15(c) were met. Reliance was placed in particular on the position of the Foreign Office on Yemen (para 17 of the appellant's skeleton argument) and the position of the Home Office (para 18) which, although more cautious, indicated that particular factors relevant to a person's individual circumstances might place him at risk and that each case would need to be considered on its individual merits taking into account up-to-date country information. It was further argued that the appeal should be allowed under Article 3 of the ECHR.

6. The judge was not satisfied that the appellant was entitled to humanitarian protection for the following reasons:

"21. The Tribunal considered all of the objective material provided by both parties and notes that it agreed by both parties that the position in Yemen is one that affects all citizens and it is dangerous. The Foreign and Commonwealth Office in their report dated 17 April 2015 observed that the situation in Yemen remains very tense and changeable. The evidence provided by the appellant and the respondent does suggest that the security situation over the last few months has not improved. The Tribunal having carefully considered the objective evidence makes a finding that the situation in South Yemen is improving more so than in the North and Central areas of the country and the appellant's evidence to the contrary is not accepted because it is a situation which affects all the population in the area.

22. The appellant admits that he is not politically active and he has no Convention ground therefore relies on Article 3 of the European Convention on Human Rights and the EU Qualification Directive 2006. The Tribunal finds that based on the evidence he has not provided evidence to show that there is a risk on his return to Yemen as the evidence especially his own suggests that he does not fall into any specific risk categories and that nothing has happened to him directly. Furthermore the evidence indicates that he does not fear anything or anyone other than the general situation in Yemen. The Tribunal accepts the conclusions of the respondent and the case of AK (Article 15c) Afghanistan CG [2012] that the general security situation does not meet the threshold required to amount to a real risk of threat to his life or person. The Tribunal finds therefore that the appellant will [not] be at risk on his return to Yemen on the basis of his general fear.

23. The Tribunal also finds that based on the evidence that the appellant is not entitled to humanitarian protection in accordance with Paragraph 339C of the Rules because as stated above evidence of general fear is insufficient and that there are no substantial grounds to believe that there is a real risk of serious harm on his return to Yemen. The appellant's appeal is similarly dismissed under Article 2 of the European Convention on Human Rights as he has not demonstrated through the evidence that there is evidence to suggest that there is a real risk of treatment that would amount to a breach of Article 2."

7. The judge went on to consider article 8 and for the reasons he gave found that his appeal could not succeed on that ground. Accordingly, the appeal was dismissed on all grounds.

Grounds and Submissions

8. In the grounds it is argued that the judge's assessment of the objective evidence was inadequate in respect of article 15(c) in that he made a bare assertion that he had considered all the objective evidence but he failed to recognise or consider the fact that the conditions recorded in the Home Office COIS Report expressly recognised the potential for a successful article 15(c) claim. In particular, he failed to recognise that there could be particular factors relevant to a person's individual circumstances making them sufficiently vulnerable that article 15(c) would apply. It is further argued that the judge failed to address background evidence from the UN showing that the situation in Yemen was possibly the worst in the Middle East. There was compelling evidence from credible international sources yet none of these were addressed directly by the judge. It is argued that the conclusion that the situation in south Yemen was improving was flawed when the evidence in fact showed the opposite and that the judge failed to consider age and health issues relating to the appellant and his wife when considering article 15(c) or whether there were significant obstacles to return under para 276ADE(1)(vi) of the rules. Permission to appeal was granted by the First-tier Tribunal for the following reasons:

"The grounds are arguable. A fuller consideration of the situation in Yemen was required and the return of an elderly couple in that context arguably received insufficient treatment. The grounds are arguable and permission to appeal is granted."

9. Mr Seelhoff adopted his grounds arguing that the judge had not properly considered the evidence relating to humanitarian protection or article 8. The judge, so he submitted, had not properly grasped or dealt with the objective evidence and had failed to make any reference to the age and health problems of the appellant and his wife. The objective evidence had been specifically drawn to the judge's attention, indicating that there were very significant problems in Yemen but he had discounted that evidence with no proper explanation.

10. Mr Kandola submitted that the judge had given sufficient reasons for his findings. As he put it, the judge had done "just enough". In any event, even at its highest, this case could not meet the high threshold to establish a case under article 15(c) or to meet the significant obstacles test under para 276ADE(1)(vi).

Assessment of the Issues

11. The issue for me is whether the judge erred in law such that his decision should be set aside. In [9] of his decision the judge set out the evidence that had been submitted in support of the appeal (bundle A) including medical evidence relating to the appellant's wife, objective evidence from UNHCR, a Foreign Office travel document, the UN Report into Saudi led strikes in Yemen, the UN Overview on Humanitarian Needs and the Home Office Country Information and Guidance Report of November 2015 (CIG November 2015). However, when setting out his findings in [20]-[23] save for a reference in [21] to the Foreign and Commonwealth Office Report observing that the situation in Yemen remained very tense and changeable, the judge did not make any specific reference to any other aspect of the objective evidence relied on by the appellant.

12. The appellant's bundle A included not only the Comprehensive Humanitarian Needs Overview 2016 produced on behalf of the UN Humanitarian country team but also the Home Office CIG November 2015, which at 2.6.1-12 considers the issue of indiscriminate violence in Yemen. At 2.6.9 it is reported that the current security situation in Aden and other areas of southern Yemen is unlikely to breach article 15(c) but adds at 2.6.11 that even where there is no general article 15(c) risk, the decision-maker must consider whether there are particular factors relevant to the person's individual circumstances which might nevertheless place them at risk.

13. In this context I am not satisfied that the judge dealt adequately with the age and health of the appellant and his wife when considering whether there would be a real risk to them in their individual circumstances on return to Yemen or that he gave adequate reasons for his decision by failing to make it clear that all relevant matters were taken into account when he reached his findings and conclusions. I am therefore satisfied that the First-tier Tribunal erred in law and that the decision should be set aside.

14. I am satisfied the proper course is for the decision to be re-made in the Upper Tribunal and following the issue of directions at the earlier hearing, the appellant produced in addition to the documents already submitted, HC352, the House of Commons International Development Committee Report entitled Crisis in Yemen, Fourth Report of Session 2015-16. The respondent relied on the Home Office Country Information and Guidance, Yemen: Security and Humanitarian Situation Version 2 April 2016 (CIG April 2016). No application has been made to call further oral evidence.

Further Submissions

15. Mr Seelhoff submitted that the background evidence indicated that Yemen was probably facing the worst humanitarian crisis in the world at the current time in the light of the civil war between the Shia alliance fighting the government and forcing them into exile for a while. A Saudi led coalition had intervened but was widely reported to have engaged in indiscriminate attacks including the use of cluster munitions on civilian targets.

16. He submitted that the position was confirmed by the policy summary in the CIG April 2016 at 3.1.1. Although at 3.1.2 it was said that the security situation in Aden and in some areas of southern Yemen was currently in general unlikely to breach article 15(c) of the Qualification Directive, Mr Seelhoff argued that this understated the crisis when considered in the light of other background evidence such as the Guardian report at A 33 to 34 and the UN Report at 1A 38-76 which confirmed that of a population of 26 million, 21.2 million people needed immediate humanitarian assistance. Further, the Foreign Office had advised against all travel to Yemen and advised those there to leave immediately. He further submitted that Aden could not now be regarded as relatively safe in the light of para 6.5.14 of the CIG November 2015, which referred to the streets of Aden remaining highly insecure with no police presence to maintain order.

17. Even if there was no general risk reaching the article 15(c) standard, Mr Seelhoff argued that the appellant was a person whose individual circumstances and profile might nonetheless place him at risk. He was in relatively good health but he was 83 years old with the inherent vulnerabilities of that age. His wife was younger but she was in poor health having been hospitalised for eighteen days in January 2016 when she suffered two heart attacks whilst having kidney treatment. The evidence showed that there was no functioning healthcare in Yemen, the Select Committee Report noting that the UN had described the health system as in a state of collapse in Yemen. He submitted that it was self-evident that in a country where even the healthy and those capable of working were struggling, two very elderly returnees would struggle even more being less able to move around, to cope in temporary accommodation or to obtain food.

18. Mr Tarlow relied on the decision letter and the CIGs. He relied in particular on 3.1.2 of the CIG April 2016 that the security situation in Aden and some areas of southern Yemen was currently in general unlikely to breach article 15(c) and submitted that the appellants failed to show their individual circumstances were such that they would be at real risk on return.

Re-making the Decision

19. The issue I must assess is whether the appellants are able to meet the requirements of article 15(c) of the Qualification Directive adopted into HC395 at para 339C(iii) and to show that substantial grounds have been shown for believing that, if he returned to Yemen, they would face a real risk of suffering serious harm and are unable, or owing to such risk, unwilling to avail himself of the protection of that country. Serious harm in this context consists of serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

20. In QD (Iraq) [2009] EWCA Civ 620 the Court of Appeal identified the question to be asked as:

"Is there in [Yemen] or a material part of it such a high level of indiscriminate violence that substantial grounds exist for believing that [the applicant] would, solely by being present there, face a real risk which threatens his life or person?"

In the CJEU judgment in Elgafaji C-465/07 the Court said that whilst it was true that collective factors would play a significant role in the application of article 15(c) in that the person concerned belonged like other people to a circle of potential victims of indiscriminate violence in situations of international or internal armed conflict, it was nevertheless the case that the provision must be interpreted by close reference to a similar individualisation as required by the harm defined in article 15(a) and (b). Therefore, the more an applicant was able to show that he was specifically affected by factors particular to his particular circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.

21. I have been referred to the report of the House of Commons International Development Committee at HC532. The summary at pages 3-5 confirms how bleak the situation is in Yemen where it is said that that country is facing one of the worst humanitarian crises in the world with 82% of the population in need of assistance and that the situation can be described as a civilian protection crisis, the evidence suggesting that civilians are bearing the brunt of the fighting and there is a serious risk that the destruction of the health system there will have consequences for the country far beyond the end of the conflict. The report also records that evidence received from humanitarian actors operating on the ground in Yemen and respected human rights organisations including UN commissioned evidence unanimously suggested that humanitarian law was being breached making the relief effort difficult and dangerous.

22. The CIG April 2016 refers at 2.3.4 to Yemen experiencing one of the most severe humanitarian crises in the world with the situation deteriorating across the country following the escalation of the conflict in March 2015. It is also recorded that the security situation in Yemen has deteriorated during 2015 with the erosion of central authority and the fragmentation of the Yemeni army: 2.4.1. There is a reference at 2.4.5 to reports of the use of indiscriminate violence by both sides including the use of cluster bombs and attacks on civilian homes, hospitals, schools, markets and factories and reports of civilians fleeing airstrikes being chased and shot at by helicopters.

23. The report draws a distinction between the situation in the northwest and centre of the country where levels of indiscriminate violence were currently likely to be at such level that substantial grounds exist for believing that a person solely by being present there faces a real risk of serious harm whereas in the south of Yemen including Aden the situation whilst harsh was not in general at such a level as to breach article 3 but this is qualified by saying it may do for vulnerable people (e.g. single women or disabled people etc.) and each case should be assessed on its individual merits.

24. The UN Humanitarian Needs Overview Yemen November 2015 at A 38 describes the ongoing conflict as devastating and reports that millions of people in Yemen need assistance to ensure their basic survival (40). It records that nearly six in ten Yemenis need food, security or livelihood support and that basic food commodities remain only sporadically available in most governorates and that the health system is in a state of collapse.

25. The Yemen travel advice from the Foreign and Commonwealth Office is to advise against all travel to Yemen and that anyone in Yemen should leave immediately. The latest update, albeit dated 19 January 2016, noted that on 18 January 2016 the Aden police imposed a ban on motorcycles within the city, following several days of killings or attempted killings by armed men on motorbikes. It records that the situation 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. There is a high threat from terrorism throughout the country and specific methods of attack are evolving and increasing in sophistication and there is ongoing fighting between competing factions across the country.

26. It is against this background that I must assess whether the appellant and his wife would be at risk on return. Even if it is the case that the security situation in Aden and other areas of southern Yemen is currently such that it is in general unlikely to breach article 15(c) nonetheless particular factors relevant to a person's individual circumstances or profile might place them at such risk and each case must be considered on its individual merits taking into account up-to-date country information. There has been no challenge to the appellant's account of events that they left Yemen in early April 2015 due to the general security situation. The appellants have not suffered any direct problems but have lost their property. The appellant is said to be in relatively good health but is 83 years old but his wife although younger is in poor health and since being in the UK has been in hospital for eighteen days when she suffered two heart attacks while having kidney treatment.

27. Taking into account their age and vulnerability when looked at in the light of the current situation in Yemen, I am satisfied that there are substantial grounds for believing that they would be at real risk of serious harm from the high level of indiscriminate violence in Yemen. I accept the submission made on their behalf that as two elderly people they are less able to move around, less able to cope in temporary accommodation and less able to obtain food and sustenance. These factors, taken with the poor health of the appellant's wife, satisfy me that, in their particular circumstances in the light of the background evidence, there are substantial grounds for believing that they face a real risk threatening their life or person from the high level of indiscriminate violence in Yemen. I need not make a finding on whether the situation in Aden is such that their presence by itself in Aden would meet the requirements of article 15(c) because I am satisfied that there are particular factors relating to the appellant's and his wife's circumstances putting them at risk from indiscriminate violence.

28. In these circumstances I need not consider the alternative submissions made under article 8 or para 276ADE.

Decision

29. The appeal is allowed on humanitarian protection grounds.

Signed H J E Latter Date: 18 October 2016

Deputy Upper Tribunal Judge Latter