Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02437/2015

THE IMMIGRATION ACTS

Heard at North Shields
Determination and Reasons Promulgated
On 3 October 2016
On 4 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

A. C.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Mendoza, Counsel, instructed by Ison Harrison Ltd, Solicitors
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom as a visitor, and then claimed asylum on 8 November 2013. In the course of that application she said that she had left her two young daughters in the care of her mother. The eldest was now studying in one city, but the youngest lived with her mother in another city, at a location that was unknown to the Appellant's husband and brother. The lifestyles of her mother and daughters were said to be financed from the financial resources available to her mother, and without the need for support from third parties.
2. The Appellant's application for asylum was refused on 31 July 2014, and certified as clearly unfounded. She then made a series of further submissions, which culminated in the Respondent's further decision of 27 October 2015 to refuse her application once again. This decision is not certified. A decision to remove her which was made in consequence, and a s120 notice was served.
3. The Appellant's appeal to the Tribunal against those immigration decisions was heard and dismissed by decision of Judge Hillis, promulgated on 13 July 2016. The Appellant's appeal rights were exhausted on 17 October 2011.
4. The Appellant's application to the First Tier Tribunal for permission to appeal was refused on 10 August 2016 by Judge Keane. The Appellant's renewed application to the Upper Tribunal was granted on all grounds, by Upper Tribunal Judge Rimington on 2 September 2016.
5. Thus the matter comes before me.
6. When the appeal was called on for hearing it transpired that neither representative had a complete copy of the grounds to the application that was made to the Upper Tribunal for permission to appeal, dated 19 August 2016. A copy, and time to digest it, was provided.

Error of Law?
7. It was accepted before me that prior to the hearing before me neither party had considered the application to this appeal of the content of the current country guidance decision in AR and NH (lesbians) India CG [2016] UKUT 66. Thus neither party drew the existence of this decision to the attention of Judge Hillis, although I note that it was promulgated on 1 February 2016, some six months before the hearing of this appeal. Nor was it considered when the grounds of the application for permission to appeal were prepared.
8. Neither of the representatives at the hearing before me had appeared at the hearing below. Both accept that aspects of the guidance to be found in AR & NH upon the issues of the sufficiency of state protection against a risk of harm to a woman from members of her own family, and the ability of a single woman to relocate internally, were relevant to the issues raised by this appeal, although the Appellant's sexuality was never an issue in the appeal.
9. The Judge's starting point, correctly, was to identify the matters that were not disputed before him; the Appellant's identity, her religious upbringing, her family circumstances, and the abuse that she had experienced in India in the past at the hands of members of her family circle [23]. Both representatives were agreed before him that in the light of that background the appeal turned upon the issues of sufficiency of state protection, and the viability of internal relocation.
10. Despite the length, and breadth, of the grounds to the application for permission to appeal, it is plain that they do not challenge the accuracy of the Judge's grasp of the following key features of the Appellant's case. She was a woman who presented herself to the Tribunal as fearing a risk of harm upon return to India only at the hands of her husband (albeit that he might be tipped off as to her return, and her location, by her own brother). She did not claim a general risk of harm from the authorities, or, from members of the population at large on account of her race, religion, or political beliefs.
11. The Judge's conclusion was that, whether or not her fear of her husband was objectively justified, her fear of her husband was genuinely held [27].
12. The Appellant presented herself to the Tribunal as a woman of no religious faith [13 & 41]. Thus she did not advance her case on the basis that she was unable to practice her faith because of the fear of the consequence of doing so. Accordingly, as Ms Mendoza candidly accepted, the assertion in ground two that the Judge overlooked an HJ (Iran) claim, is without the necessary evidential foundation.
13. The Judge accepted, on the basis of the evidence placed before him, that there was endemic gender based discrimination in India towards women, which was particularly prevalent in the rural areas. The Appellant did not claim to originate from a rural area, and the Judge did not conclude that she did. There is no complaint raised in the grounds to the effect that he ought to have done so.
14. Whilst ground one complains baldly that the Judge should have allowed the appeal outright because he ought to have concluded that women formed a particular social group in India, Ms Mendoza accepted that mere membership of such a group was not enough of itself to allow the Appellant's appeal to succeed. Thus she accepted that the approach advocated in ground one would itself, if it had been followed, have led the Judge astray.
15. Ground two has been drafted on the premise that the Appellant could only secure a place of safety upon return to India within a community formed predominantly of the members of her religion of birth, and that despite the loss of her own religious faith, the Appellant would feel obliged to live within such a community for the welfare of her own daughters. These propositions do not properly engage with either the Appellant's own case, or the guidance to be found in AR & NH. The Appellant's own case was that her eldest daughter had already left her mother's home, and was now studying for a degree in another city as a single woman, having won a University scholarship to do so. Taking this evidence at face value it indicated strongly (when taken in conjunction with the evidence about her mother's access to finance) that the Appellant and her family were members of the educated and moneyed class in India. Furthermore it was the Appellant's own case that her mother and daughters were able to live in safety using their own financial resources, without contact with either the Appellant's husband, or brother. There was no proper basis for any suggestion that the Appellant would be unable to live in safety outside a religious community.
16. Moreover although the Appellant's case was that her husband would be able to trace her if she returned to live within a community predominantly made up of members of her religion of birth, it was plain that either her husband had not yet been able to trace either her mother, or, either of their daughters, or, he had never tried to do so. The Appellant's case was that her mother had established a home within such a community, but as the Judge concluded [40], if her husband had not been able to trace them when they lived within that community, then it was not possible to see how he would be able to do so either if they ceased to do so, or, if they continued to do so with the addition of the Appellant to their household. I conclude therefore that the finding that the Appellant's husband had made no effort to trace her, or, was unable to do so, was one that was well open to the Judge to make.
17. Grounds three and four complain of the Judge's approach to the issue of internal relocation, and of his approach to the issue of the sufficiency of state protection available to the Appellant. The Judge's finding was that in the light of the expert evidence before him the authorities in India did provide sufficient state protection [44-47]. Although he was unaware of it, that conclusion was entirely consistent with the conclusion reached in AR & NH that there is normally sufficient state protection for women whose families seek to harm them in their place of internal relocation. Ms Mendoza accepted that.
18. Whilst the grounds complain that internal relocation to join her mother and daughters was an entirely unrealistic proposition, the Judge's conclusion that it was reasonable to expect the Appellant to be able to internally relocate to join her mother's household [48] was properly reasoned when the decision is read as a whole, and, in my judgement it was one that was well open to him on the evidence. Moreover it was one that was entirely consistent with the conclusions reached in AR & NH, even if, as the Judge accepted, as a result of her mental health, the Appellant would be unable to secure and hold employment in the event of her return to India [26].
19. Ground five complains that the Judge "was simply wrong" in his finding that Article 8 was not engaged, which I take to be an assertion that his conclusion in this respect was perverse.
20. Ms Mendoza accepted that the Article 8 appeal was only ever presented on the basis that the Appellant had established a "private life" in the UK sufficient to engage Article 8: this appeal was never presented as a "family life" case. Ms Mendoza also accepted that the Appellant did not rely upon any friendships formed in the UK, and that she had denied the formation or existence of any relationship with anyone in the UK. The Appellant had never worked in the UK, and indeed was assessed as unfit for work. Thus on her own case she had gained no social contacts, or network, through employment. She had also denied the presence in the UK of any family member (of whatever degree of relationship).
21. Accordingly, as Ms Mendoza frankly conceded, it was difficult to see any evidence that was placed before the Judge to indicate how she had spent the three years that she had lived in the UK, or, who she had spent it with. The evidence fell a long way short of providing an explanation of the nature and strength of the "private life" relied upon, beyond identifying relationships established by the Appellant with the counsellors and medical staff with whom she had had contact since arrival in the UK. Whilst the diagnosis of the Appellant as suffering PTSD and moderate depression was not in issue [26], this was not an Article 3 health case, as indeed the parties agreed before the Judge [25].
22. In my judgement it was well open to the Judge on this evidence to conclude that Article 8 was not engaged by the decision to remove the Appellant from the UK, and his conclusion to that effect was adequately reasoned. Even if, given the low threshold of engagement, he ought to have concluded otherwise, he would have been bound to conclude that the Appellant derived no assistance from s117A-D of the 2002 Act; Deelah (section 117B - ambit) [2015] UKUT 515, AM (s117B) Malawi [2015] UKUT 260. Thus given her ability to return to live in safety in India in a household where she would be supported and care for by her mother and two daughters, the public interest in her removal very significantly outweighed any "private life" that it could be said she had established in the UK, so that her Article 8 appeal should be dismissed.
23. In the circumstances the Judge did not make any material error of law in his decision to dismiss the appeal on all grounds. The Appellant's appeal is dismissed.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 13 July 2016 did not involve the making of an error of law in the decision to dismiss the appeal that requires that decision to be set aside and remade. That decision is accordingly confirmed.

Deputy Upper Tribunal Judge JM Holmes
Dated 4 October 2016

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Signed
Deputy Upper Tribunal Judge JM Holmes
Dated 4 October 2016