Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02449/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 12 October 2016
on 18 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

[C N]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr A J Bradley, of Peter G Farrell, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge P A Grant-Hutchison, promulgated on 2 August 2016, dismissing her appeal against refusal of recognition as a refugee from Nigeria.
2. These are the grounds of appeal to the UT:
"In refusing the appeal the tribunal concluded "it may be that her husband is also opposed to FGM". It concludes that he may be of assistance to the daughter.
? this finding is speculative and appears to misunderstand the essence of the case. The appellant claimed to fear FGM because her husband had given indications in fact he supported FGM. He is a traditional man who respects the traditions of his family. His family are very much in favour of FGM. The Home Office had indicated that [the appellant] could relocate because "vague information" had been provided as to how [her] husband's family could locate [her] (refusal letter, paragraph 23). The tribunal appears to accept that this is precisely what will happen, that the husband and family will find the proposed victim. Having already concluded there is no sufficiency of protection, in those circumstances, the tribunal should simply have allowed the appeal. There was no evidence to support a finding that the proposed persecutors family would be "of assistance"."
3. In a written response to the grant of permission the SSHD submits thus:
"It is far from clear whether the judge's conclusions on sufficiency of protection are adequate. However, on the presumption that he concluded that there was no sufficiency of protection in her home area it is clear that he went to on to consider whether there was an internal relocation option and reached reasoned conclusions on this aspect.
It is plain that the judge concluded that the appellant has the support of educated parents in Nigeria. Paragraph 16 refers. It also appears clear that the appellant's husband is not in favour of FGM.
? when read in the round the judge has reached sustainable conclusions on the matter of internal relocation."
4. Mr Bradley submitted along the following lines. The case was based on a risk of FGM being inflicted on one of the appellant's children. The claim was accurately recorded in the respondent's refusal letter, but was vaguely and inconsistently described in the judge's decision. The nub of the case was the ability of the family of the appellant's husband to locate the appellant in Nigeria. She has separated from her husband who has other representation in relation to immigration matters. His status is understood to depend on the presence of the children here, so their return to Nigeria would imply that he would also be expected to return. He is not a dependent in these proceedings. The judge appeared to accept that there was a risk of FGM, against which the authorities in Nigeria do not provide legal sufficiency of protection (paragraph 13). The decision showed that there was a local risk, from which the appellants might be required to relocate, if that were possible. The decision at paragraph 16 implied that there could be no relocation. The final 3 sentences of that paragraph were written on the basis that the husband of the appellant was also opposed to FGM, but that was not to be understood as an alternative finding. On the findings, there was a local risk and no possibility of relocation, and so the outcome should be reversed. If any other interpretation could be placed on the decision, then its findings were inadequately explained, and there should be a remit to the FtT.
5. Mr Mullen submitted thus. It was not necessarily implicit that the judge accepted even a localised risk to the appellant's child. Paragraph 16 was far from clear in holding that there was a real risk from the father or his family. The evidence cited was rather to the effect that he is against FGM, although some family members may have taken a different attitude. However, it was not possible to know from paragraph 16 or from the decision as a whole what was found as a matter of fact. A number of readings could be put upon it. The decision failed to make clear why its overall conclusion was reached. Mr Mullen could not go so far as to submit that whatever other findings were reached, the case was bound to fail on internal relocation. That might be the final outcome, but it required to be reach on clear specific findings of fact. The case therefore required to be remitted.
6. The decision of the FtT is set aside, for absence of sufficiently clear findings and reasons, as conceded by the respondent.
7. There are no findings which may be preserved so as to lead to the FtT decision being simply reversed.
8. No findings are to stand.
9. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit to the FtT for an entirely fresh hearing.
10. The member(s) of the FtT chosen to rehear the case are not to include Judge P A Grant-Hutchison.
11. No anonymity direction has been requested or made.

18 October 2016
Upper Tribunal Judge Macleman