Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02382/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 8th January 2018
On 11th January 2018

Before

UPPER TRIBUNAL JUDGE COKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

R K
(ANONYMITY ORDER MADE)
Respondent

Representation:

For the Appellant: Ms A Fijiwala, Senior Home Office Presenting Officer
For the Respondent: Ms J Bond instructed by Freemans solicitors

DETERMINATION AND REASONS

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 appellant in this determination identified as RK. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings

1. In a decision promulgated on 5th October 2017, First-tier Tribunal judge Morgan allowed RK's appeal against a decision of the SSHD to refuse her protection claim. The SSHD sought, and was granted, permission to appeal on the grounds that it was arguable;
(i) The First-tier Tribunal judge erred in law in finding there was a lack of sufficiency of protection against non-state agents; there was no evidence to suggest the entire police force was corrupt and there was no evidence to suggest that the need for medical treatment renders RK more vulnerable;
(ii) The First-tier Tribunal judge failed to address the binding authority of GS (India) [2015] EWCA Civ 40.
Background

2. RK arrived in the UK on 16 April 2013 with a visit visa. She was arrested on 19th September 2014 at Heathrow Terminal 5 attempting to leave the UK for Canada on a false British passport with her partner MS. On 8th October 2014, she was convicted at Isleworth Crown Court of possession of false identify documents with intent and sentenced on 15th October 2014 to 16 months imprisonment. She claimed asylum on 23rd December 2014, after having been served with a "stage 1 deportation decision". I assume this is notification of an intention by the SSHD to deport her and a request for reasons why she thought she should not be deported; a copy of that document is not in the papers before me.

3. The basis of RK's protection claim is that she fears being killed by her parents, her former boyfriend and those who brought her to the UK. She also relies upon her medical condition and fears an early death if removed to India - she has renal failure and undergoes kidney dialysis three times a week. For reasons set out in a decision dated 23rd February 2017, RK's protection and human rights claim was refused. The SSHD did not challenge the credibility of RK's account but asserted that there was both sufficiency of protection and she could internally relocate; there was adequate health care available for her condition.

4. Before the First-tier Tribunal the SSHD accepted the credibility of RK's claim and relied upon firstly, the availability of sufficiency of protection and internal relocation and, secondly, that her medical condition did not meet the high threshold required to sustain an Article 3 health claim.

The First-tier Tribunal decision

5. In a short decision, the First-tier Tribunal judge noted that the SSHD accepts that women in India form a particular social group and that gender based violence against women at the hands of family or community members is widespread; that 'honour killings' are widespread and that RK had been disowned by her family. The First-tier Tribunal judge found RK to have a

22??genuine fear of honour killing at the hands of her family and that this subjective fear is well founded in the context of the country evidence in respect of India. It may well be that, as the [SSHD] asserts, that if she was the subject of an honour killing the perpetrators would be prosecuted by the Indian State. This is of little assistance to [RK} and I find that there is not sufficiency of protection in the particular circumstances of her case. I also find that internal relocation would be unduly harsh given that she would be a single woman without support and unable to afford the life-saving dialysis treatment she needs to survive."

Error of law

6. The SSHD asserts that the First-tier Tribunal judge erred because he
"totally ignored the evidence relied on in the decision letter paragraphs 24-38 [that] there is no objective evidence that [RK] cannot seek protection against non state agents".
The SSHD disputed findings of the First-tier Tribunal judge because there is
"no evidence to suggest the entire Indian police force is corrupt"
and there is
"no evidence to suggest that lone women are unable to relocate within India"
and that the
"need for medical treatment without more"
does not render RK vulnerable; the SSHD asserts the judge failed to address paragraphs 39-52 and 61-80 of the decision letter.

7. Paragraphs 24-38 of the decision letter set out and describe the "Horvath test", the structure of India's police force; quotes from various reports on the effectiveness of India's police forces and their susceptibility to corruption. The evidence was that there had been an increase in crimes against women being reported although there was a reluctance by women to report crimes because of the lack of guarantees of adequate shelter and access to livelihoods. The evidence was that so called 'honour killings' were a societal problem and that individual women were reluctant to make complaints to the police. The evidence was that
" ?A victim of domestic violence deals primarily with a protection officer and has a right to legal aid, shelter and access to medical care, although there have reportedly been limitations in the effectiveness of the law due to restricted implementation, as well as corruption. Women facing imminent and life-threatening violence have often had to rely solely on police aid."

The reasons for refusal letter refers to the availability of government run and non-government run hostel accommodation where working women can live for up to three years and there are programmes that are designed to assist marginalised women accessing the labour market. The reasons for refusal letter refers to India and not the village RK comes from but it is reasonable to conclude, given there are less than 900 shelters/hostels for single women in India, that there is no such hostel or shelter in her village. RKs medical problems require dialysis three times a week and personal care after dialysis. Were it not for the imminent threat of being killed, that treatment and that care would be expected to be paid for and provided by her family. The protection actually available to a person in the position of RK does not extend to that; the police do not provide round the clock protection; dialysis is not available or accessible through the system of hostels and protection to and from hospital is not available from the police.

8. Even though the First-tier Tribunal judge failed to address in the decision the evidence that was before him in the reasons for refusal letter and failed to give reasons for reaching his decision, had he done so the outcome would inevitably have been the same - RK cannot access sufficiency of protection in her home area.

9. Paragraphs 39 to 52 of the reasons for refusal letter set out the evidence relied upon by the SSHD in connection with internal relocation. It covers the difficulties single women have accessing housing, employment and the social and societal stigma they face. There is reference to hostels not providing adequate access to health care. Paragraph 49 identifies that RK is fearful of being traced if she relocates but notes that although she was contacted by mobile phone she experienced no harm and there was no evidence those she feared had the ability to trace her physical whereabouts. The judge does not address that. RK is unable to work, requires dialysis three times a week and requires personal care after each dialysis session. The judge found that

22?.internal relocation would be unduly harsh given that she would be a single woman without support and unable to afford the life-saving dialysis treatment she needs to survive.

Were it not for the threat of being killed, RK would have the support she requires to avoid death from lack of medical treatment. She is unable to access that treatment. The evidence in the reasons for refusal letter and in the CIG includes evidence of lack of adequate access to medical care. Again, although the judge fails to provide any reasoning for his conclusion, it is inevitable that had he done so he would have concluded that the combination of the lack of access to adequate accommodation, employment and medical care (as evidenced in the CIG) renders internal relocation in her case unduly harsh because it will lead to her death.

10. There is no material error of law by the First-tier Tribunal judge in his findings that there is no sufficiency of protection and that internal relocation would be unduly harsh. It follows that his decision to allow the protection claim is not infected by error of law and stands.

11. Paragraphs 61 to 80 address the availability of medical treatment in India from the perspective of an Article 3 health case. Although the First-tier Tribunal judge allowed the protection claim, he nevertheless goes on to consider RK's claim in terms of Article 3 health. He fails to address GS and does not identify how RK meets the high threshold, merely stating that she does. There is a plain lack of reasons and no justification for allowing the appeal on these grounds. However, as MS Bond submitted, there was no need for the judge to consider Article 3 health; RK's case was not argued as a health case and if she is recognised as a refugee any such claim would in any event fall away. Therefore, although the judge erred in law in his decision as regards Article 3 health, such error is immaterial and I do not set the decision aside on that basis.

Conclusions:

The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.

I do not set aside the decision. The decision of the First-tier Tribunal stands namely RK's protection appeal is allowed.

Date 10th January 2018

Upper Tribunal Judge Coker