Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03287/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 July 2016
14 September 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

Sylvia [O]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Tobin, Counsel instructed by Tower Hamlets Law Centre
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AS TO ERROR OF LAW
1. The appellant in this case is a national of Nigeria who was born on 14 April 1988. She first entered the UK as a visitor on 1 July 2015 and claimed asylum nineteen days later. Following a screening and substantive interview her application was refused and the refusal letter is dated 20 November 2015.
2. The appellant appealed against this decision and her appeal was heard before Immigration Judge S Lal sitting at Hatton Cross on 9 May 2016.
3. In a decision promulgated on 18 May 2016 Judge Lal dismissed the appellant's appeal. The appellant now appeals to this Tribunal leave having been granted by First-tier Tribunal Judge Page on 7 June 2016.
4. It is not necessary for the purposes of this decision to set out the claim in any great detail. Essentially the basis of the appellant's claim is that if returned to Nigeria she would face persecution because she is suspected of being a witch and that she has failed to attend a "hearing" if that is the right word to describe this before the Efanedo Shrine, the penalty for which was said to be a death penalty. At the hearing in addition to giving evidence herself the appellant relied on a substantial body of background material as well as a letter said to be from the Efanedo Shrine and a police report. It should also be noted that in the refusal letter, although the respondent ultimately rejected the appellant's claim it was nonetheless accepted at paragraph 23 that the appellant had given "an internally consistent account" of the part of her claim in which she set out her case that she had been accused of being a witch.
5. In his very brief decision amounting to only some four pages in total, the judge dismissed the claim on the basis essentially that it was fabricated and lacked credibility. It was noted at paragraph 16 that the letter said to have been from the Efanedo Shrine (misspelt in the determination as the "Efandeo Shrine") contained a number of spelling mistakes and it is said at paragraph 17 as follows:
"The Tribunal has assessed this document against the objective evidence referred to by [the appellant's Counsel] which deals with the witchcraft tradition in that part of Africa. The Tribunal finds that a suspected witch will not be given one months notice as to the use of the death penalty against them in complete contravention of Nigerian criminal law. There is no evidence to suggest that this is how suspected witches are treated. The objective evidence suggests a different type of persecution where individuals are attacked etc. by their community's [sic] in often extreme acts of communal violence. The Tribunal accepts the existence of such cultural practices in Nigeria but it cannot and does not accept the evidence that an accepted cultural practice in respect of witch persecution to issue a letter stating that someone will attract the death penalty if they do not attend in a month's time. This will give the suspected witch time to flee. The explanation given that the shrine is a busy place and one has to have an appointment stretches all credulity where the claim is based on a real risk of severe ill-treatment."
6. It is then said that "the Tribunal found this evidence to be wholly unsatisfactory and it leads the Tribunal to reject the entire account of claimed persecution as a suspected witch". Because of this it seems (see paragraph 18) that the judge also rejected the police report as not being genuine either. The Tribunal found that "both are an attempt to bolster a weak claim".
7. It is argued on behalf of the appellant that the judge simply did not have proper regard to the background material which had been advanced or at any rate his decision to reject all the evidence is inadequately reasoned.
8. In my judgment the decision is not adequately reasoned. I have had regard to the evidence which was before the First-tier Tribunal which included various pieces of evidence suggesting that the treatment of suspected witches on occasion did include killing them. I set out pieces of this evidence. At page 54 of the appellant's bundle there are extracts from the Country Information and Guidance produced by the Home Office in August 2015 on "Nigeria: Gender-Based Discrimination/Harm/Violence Against Women" and within paragraph 5.7.1 it is stated as follows:
"The CWSI [Centre for Women's Studies and Intervention] representative indicated that if a woman has been accused of witchcraft, she may have to carry out 'traditional rites', but this depends on the area and cultural beliefs [CWSI 24 April 2013]. She indicated that one such traditional rite could be giving the community gifts like gold...
The CDHR representative said that a woman accused of witchcraft could be killed by 'close relations' or 'kinsmen' (CD HR 25 April 2013). She added that this practice is 'rampant' in some states, such as Akwa Ibom, Cross River, but is also practised in other states as well... The Director of Widows for Peace through Democracy (WPD), a UK-based advocacy organisation for widows in developing countries (n.d.), without specifying ethnic groups, stated that:
'WPD is well aware... that women, especially older widowed women, may, in some ethnic groups, particularly in rural areas, be accused of being witches where unexplained deaths occur, (for example, in context of HIV and AIDS), unprecedented natural disasters happen, or harvests inexplicably fail. Expulsion from the village and the community; exclusion or forced seclusion; in extreme cases death by stoning might be carried out." (WPD 25 April 2013)'."
9. This information was gleaned from an information response of 24 April 2013 by the Research Directorate of the Immigration and Refugee Board of Canada.
10. An example of a witch said to have been killed was given at 5.7.2 of this report as follows:
"BBC trending: 'The tragic case of Nigeria's 'bird' woman', 20 October 2014, showed a scene of a dying woman, burn and bloodied, who witnesses claimed had been a black bird who had been flying in the sky in Lagos, before striking an electrical cable, falling to earth and transforming into a woman. The same eyewitnesses say she confessed to being a witch."
The article went on to say:
"Accusations of witchcraft remain common in this part of the world says ... 'In a secular society like ours it's very hard to grasp a belief in supernatural forces'. But the notion of witches and wizards is embedded in a form of Pentecostal Christianity that is popular in Nigeria, she explains."
11. At paragraph 79 of the bundle there is a document relied on from the Australian Government Refugee Review Tribunal setting out advice on Nigeria. In question 2 "Are there any reports of suspected witches being harmed in Anambra State? If so, by whom and in what ways? The following information is given:
"Limited information was found on the treatment of suspected witches in Anambra State. The Immigration and Refugee Board of Canada documented numerous media reports of ritual killings carried out in various Nigerian states, including Anambra. [5] A United Kingdom report from 2009, documented that over 30 priests were arrested in 2004 when 50 mutilated bodies used for ritual sacrifices were found near shrines in Okija, Anambra State. [6] The priests were accused of committing human sacrifices and using body parts for ritual purposes. [7]."
12. In answer to question 4, "What is the level of state protection for those suspected of being witches (and harmed or threatened by non-state actors)? the following information is given:
"Information indicates that the level of state protection is undermined by official hostility towards witchcraft and police corruption. According to the Immigration and Refugee Board of Canada, 'local authorities (as opposed to formal governmental officials) in Nigeria often treat witchcraft as a crime punishable by death". [16] However, UNHCR indicated that 'cults and secret societies were widespread, but the protection within Nigeria and police assistance would generally be available, although it could not be 'fully rule[d] out that a person being victimised or threatened by members of the secret cult would at all times be able to find safety'. [17]."
13. In my judgment having looked carefully at the letter said to have been from the Efanedo Shrine it cannot properly be said that "there is no evidence to suggest that this is how suspected witches are treated". It appears from this decision that having decided that the letter from the shrine was not a genuine letter the judge effectively dismissed the other material which had been put before him rather than reaching his conclusion on the basis of a consideration of all the material in the round. It does not of course follow that had be considered all the material in the round he would have been bound to allow the claim and it may well be that the appellant will still have a high hurdle to overcome before her appeal is allowed but in my judgment the judge's failure at the very least to show in his decision that he had had proper regard to all the evidence which had been put before him is so apparent as to amount to a material error of law.
14. It follows that this appeal must be re-heard and having regard to the Practice Statement it is appropriate to remit this appeal back to the First-tier Tribunal because there are no findings of fact which can be retained but the appeal will have to be re-heard afresh and I shall so order.

Decision
The decision of First-tier Tribunal Judge Lal, dismissing the appellant's appeal is set aside.
The appeal will be remitted to the First-tier Tribunal sitting at Hatton Cross, for reconsideration by any judge except Judge Lal.

No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 29 July 2016