Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
PA/03878/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 16th January 2017
On: 18th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

FB
(anonymity direction made)
Appellant

And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Aslam, Counsel instructed by SB Solicitors Ltd
For the Respondent: Ms Ahmad, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Bangladesh born in 1981. She appeals with permission1 the decision of the First-tier Tribunal (Judge J McIntosh) dated 31st October 2016 to dismiss her protection appeal.

Anonymity Order

2. This case concerns a claim for international protection involving allegations of domestic violence. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Background and Matters in Issue

3. The basis of the Appellant's claim to international protection is that she has a well-founded fear of persecution in Bangladesh for reasons of her membership of a particular social group, namely women in Bangladesh. The Appellant avers that she has been subjected to sustained domestic violence by her husband for a number of years. This has been inflicted because she has "failed" to get pregnant during their marriage. She left Bangladesh and came to London where she has embarked on a relationship with another man. She now fears that her husband and/or family will subject her to serious harm because she is perceived to have impugned their "honour" by having an extra-marital relationship.

4. The Respondent did not accept that the Refugee Convention was engaged. Nor did she accept that there would not be a sufficiency of protection for the Appellant in Bangladesh if she needed it. In respect of the account of domestic violence the Respondent did not find this to be consistent with the fact that the Appellant's husband had permitted her to travel to the United Kingdom and that he had apparently taken no steps to divorce her. The Appellant's evidence that she was living with her brother in the United Kingdom was inconsistent with the evidence that her whole family had turned against her. Even if the Appellant did have concerns, there was nothing to prevent her moving elsewhere in Bangladesh.

5. The First-tier Tribunal in essence, agreed with the Respondent in her analysis of credibility. The Judge found the evidence to be vague and contradictory. He noted that the Appellant was not a lone female, since she could relocate in Bangladesh with her new partner. This gentleman was also a Bangladeshi national with no leave to remain in the United Kingdom. The appeal was thereby dismissed.

6. The Appellant now appeals on two grounds, very helpfully distilled before me by Mr Aslam. First, the Tribunal failed to consider whether the Appellant - and by extension her partner - would be at risk in Bangladesh as an adulterer. Second, the determination contains numerous mistakes of fact, or misapprehensions as to the evidence. Whilst conceding that not all of these errors were directly material, Mr Aslam submits that they demonstrate that the determination was prepared with a lack of care, or anxious scrutiny. I deal with each ground in turn.

Ground 1: Failure to Consider Risk

7. The evidence was that the although the Appellant had left her husband and entered into a relationship with another man, her marriage was neither dissolved under Islamic law, by way of talaq or khula, nor had she obtained a civil divorce under the Muslim Family Law Ordinance of 1961. She was therefore, as a matter of fact, committing adultery by living with her current partner. That would continue to be the case if the couple were to relocate to Bangladesh. This would place the couple at risk of serious harm in the context of a conservative Islamic society. The remedy for this state of affairs would be for the Appellant to seek a divorce from her husband. That would alert him, and other hostile family members, to her whereabouts. This was the argument put by the Appellant before the First-tier Tribunal. It is set out in the skeleton argument drafted by Counsel, wherein references are made to supporting information in the country background material.

8. Before me Ms Ahmad conceded that the determination does not squarely address the point as pleaded. I would have to agree. Paragraph 35 notes that both the Appellant and her current partner can relocate together but there is no consideration of whether the type of harm mentioned in the country background material - described at paragraph 26 of the decision as 'fatwa violence' including stoning, beating and whipping - might still be visited upon the Appellant, or indeed the pair of them together. The Judge appears to have considered that the type of harm mentioned in the country material (for instance in the Country Information and Guidance document dated December 2014) only pertained to women on their own. Whilst some of that material expressly does pertain to lone women, there was no justification for reading all of it in that way. I do not know if there was an evidential basis to conclude that the Appellant would somehow be protected from mob, state or domestic violence by the presence in Bangladesh of her adulterous lover. If there was it is not set out in the determination. There was a failure to assess this central plank of the Appellant's case. I find ground 1 to be made out.

Ground 2: Errors of Fact

9. It is submitted that the determination contains material errors of fact. I address the alleged errors, and the submissions made by the parties, in turn, before reaching a global conclusion on the point.

10. Paragraph 9 of the determination reads that the "Appellant first entered the United Kingdom on 13th May 2015". As a matter of fact that is wrong. There is a long history of her having visited the United Kingdom prior to this visit. Mr Aslam submits that in a case where the Judge appears to conclude that this was a pre-meditated asylum claim, this was a material misunderstanding of the evidence. Had the Tribunal had regard to the immigration history it would have seen that she has had numerous opportunities in the past to advance a false asylum claim. Had the tribunal borne that history in mind, it may not have concluded that she came here with the specific intention of claiming asylum. For the Respondent Ms Aslam accepts that paragraph 9 does contain an error, but asks me to find that it was simply a typing mistake, since it is evident from paragraph 30 that the Judge did understand the true position: "the appellant last entered the United Kingdom on the 13th May 2015" [emphasis added].

11. At paragraph 31 the Tribunal draws adverse inferences from the alleged fact that the Appellant's husband sent a threatening letter to the Appellant via his sister in London. The Tribunal questions why he would have sent the letter there, rather than to the Appellant herself, at the address that would be known to him, because that was where she always stayed when she came to the United Kingdom. It would appear that the Judge understood the letter to have been sent to the husband's sister because that is what the Appellant herself said at interview, a matter helpfully brought to my attention by Ms Ahmad. What the Tribunal failed to appreciate is that the two houses were one and the same. The 'sister' is in fact the wife of a Mr Alauddin, a relative of her husband, who always sponsored the Appellant's visit visas. That is where she was staying, and where the letter was sent.

12. At paragraph 6 the Judge records that the Appellant has two brothers in the United Kingdom. At paragraph 34 he deduces that their support undermines the claim that her entire family have disowned her. This is factually incorrect. She has one brother in the United Kingdom, who has suffered his own difficult divorce and is living with mental health problems. Mr Aslam argued that this error is material. The fact that this single brother, with reasons of his own to be dislocated from the family, has offered her support does not contradict the claim that the family in Bangladesh have disowned the Appellant. Ms Ahmad accepted that there was only one brother, but submits that one or two, the reasoning of the Tribunal was good.

13. In addition, the Tribunal appears to have been confused about who certain characters in the narrative are, for instance conflating Mr Shorof Uddin with Mr Alauddin.

14. I accept Ms Ahmad's very well made submissions that not all of these errors were directly material to the decision that was reached. I am however concerned that in a decision which turned on its facts, there were numerous misunderstandings as to what the evidence actually was. Such cumulative errors do arguably demonstrate a lack of care or anxious scrutiny. I consequently find ground 2 to be made out.

15. The parties were in agreement that if the grounds were all made out, the decision should be set aside. They were in equal agreement that in those circumstances the matter should be remitted to the First-tier Tribunal, due to the extensive fact finding required.

Decisions

16. The determination of the First-tier Tribunal contains an error of law and it is set aside.

17. The decision in the appeal is to be re-made by the First-tier Tribunal.

18. There is an order for anonymity.

Upper Tribunal Judge Bruce
16th January 2017