Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06063/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 February 2017
On 22 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AS
(ANONYMITY DIRECTION made)
Respondent

Representation
For the Appellant: Ms Z. Ahmad, Home Office Presenting Officer
For the Respondent: No attendance

Anonymity
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 respondent. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

1. The respondent (hereinafter “the claimant”) is a citizen of India born on 18 January 1981, who entered the UK on 22 January 2010 on a Tier 4 (General) Student Dependent Partner visa. He remained in the UK after his visa expired and on 9 April 2015 was encountered by Immigration enforcement and detained. On 15 May 2015 he claimed asylum. On 27 May 2016 the application was rejected. The claimant appealed and his appeal was heard by First-tier Tribunal (“FtT”) judge Suffield-Thompson. In a decision promulgated on 1 November 2016, the judge allowed the claimant’s appeal. The Secretary of State is now appealing, with permission, against the decision of the FtT.

Claimant’s non-attendance and decision to not adjourn

2. Neither the claimant nor a representative on his behalf attended either this hearing or the hearing in the FtT. In his decision, Judge Suffield-Thompson stated that he was satisfied he should proceed, notwithstanding the claimant not attending, as he had been given notice of the hearing and had had a full opportunity to provide further evidence.

3. Reviewing the file, it is clear that the FtT (and Upper Tribunal) sent notification of the hearings to the address for claimant that had been provided by the claimant’s then representatives (who had subsequently advised the FtT they were no longer instructed). However, it is also clear that the claimant did not receive the notifications as correspondence sent to this address was returned to the Tribunal as undeliverable.

4. As this is an asylum case where the claimant claims to be at risk of serious harm, I would be inclined to adjourn the hearing if I thought that by doing so he would have an opportunity to attend, or instruct a representative to attend, a hearing. However, unfortunately, I do not think an adjournment would facilitate this. The Tribunal has tried, without success, to ascertain the claimant’s current address, by contacting his former solicitors who provided the same address as is on file. If I were to adjourn the hearing, the notification of the date for a resumed hearing would be sent to the same address from which previous correspondence sent by the Tribunal has been returned as undeliverable. In these circumstances, I see no purpose in an adjournment as it is likely that the claimant would not receive notice of the date of the resumed hearing.

Background

5. The claimant, who is Sikh, claims to be a member of Babar Khalsa (“BK”). He claims that in December 2009 he was arrested, following an attack by Shiv Sena on his temple, and detained for a month, during which time he was subjected to torture and sexual assault. After a month his father arranged money for bail whereupon he was hospitalised. After several weeks in hospital he came to the UK with his wife. He claims to have been told that since leaving India arrest warrants have been issued against him.

6. In support of his claim the claimant submitted a medical report from Dr Andrew Bailey, a General Practitioner and volunteer doctor at the Medical Foundation for the Care of Victims of Torture. The report describes the claimant as having 24 lesions on his body, all of which relate to maltreatment in detention. Dr Bailey states:

“The number and distribution of the lesions makes self harm and causation by proxy virtually impossible. Taken together, I can think of no cause other than deliberate torture”.

7. The report also describes the claimant has having PTSD accompanied by depressive features.

8. The Secretary of State rejected the asylum application, describing the claimant’s account as inconsistent and not credible. It was not accepted that he was a member of BK or that he was detained by the police. The Secretary of State also stated that the claimant could, in any event, relocate within India without undue hardship and obtain sufficient protection from the state. In respect of the report by Dr Bailey, the Secretary of State’s view was that that the findings were not in accordance with the Istanbul Protocol and attached little weight to it.

Decision of the First-tier Tribunal

9. At paragraph [28], the judge outlined the issues for him to resolve, stating:

“I will, for ease of the parties, set out the dispute areas and deal with each one individually”
(i) The appellant has not been a member of the BKP
(ii) The appellant was not arrested and tortured
(iii) The appellant is in breach of section 8
(iv) There is no risk on return and he can turn to the authorities for state protection”

10. At paragraphs [29]- [30] the judge assessed whether the claimant had been a member of the BK and concluded that he had.

11. At paragraphs [31]-[37] the judge considered and assessed the evidence of Dr Bailey about the appellant having been a victim of torture and found that he had been.

12. At paragraph [38], before concluding that the appeal should be allowed, the judge stated:

“On the evidence before me I find that the appellant has had affiliations with the BK and that he has been the victim of significant torture. I find that he could not turn to the State for protection on return as it was agents of the state who arrested and mistreated him and there is nowhere in India I find where he could be safe. “

Grounds of appeal

13. The grounds of appeal argue that the judge:
failed to engage with the credibility points taken in the Secretary of State’s refusal letter, such as that the claimant’s father lives in India without difficulties despite his support for the BK;
failed to engage with the whether sufficiency of protection or internal relocation would be available to the claimant; and
treated the medical report as determinative despite the criticisms of it made by the Secretary of State.

Consideration

14. One of the key arguments made in the Secretary of State’s reasons for refusal letter was that even if the claimant’s claims were true, he would still be able to relocate within India. The Secretary of State cited objective evidence to support the contention that India is a large and diverse country where there is freedom of internal movement. It was noted that the claimant speaks Punjabi and some English which are both widely spoken in India. Reference was also made to the absence of a central registration system that would enable him to be tracked to another part of the country. On this point, the Secretary of State referred to MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC), where it was stated that India:

“is a country of 1.2 billion people and we have not been drawn to any evidence that there is a central registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or unions within the country. We consider the possibility of the police, or any other person or body, being able to locate, at the behest of an individual’s family, a person who has fled to another state or union in India, to be remote.”

15. The only mention of internal relocation in the decision is at paragraph [38] where the judge stated

“...and there is nowhere in India I find where he could be safe”.

16. Absent from the decision is any explanation as to why the judge has reached the conclusion that there is nowhere safe in India to which the claimant could relocate. The Secretary of State gave cogent reasons supported by objective evidence and consistent with a recent Country Guidance case (as summarised above) to support the contention that the claimant could relocate within India. Failure by the Tribunal to take into consideration the evidence before it concerning internal relocation was a material error of law, such that the decision will need to be remade.

17. I am hindered in remaking the decision by not having the opportunity to hear evidence from the claimant or submissions on his behalf. Moreover, given the claimant’s vulnerability, as explained by Dr Bailey, I am particularly uncomfortable about not giving him an opportunity to make his case. However, for the reasons I have given above at paragraphs [2]-[4] I do not consider that any purpose will be served by adjourning the hearing and therefore I have decided to proceed to remake the decision.

18. Even if I accept the claimant’s claim at its highest, he is unable to succeed because he has failed to show to the lower standard of proof applicable in asylum claims that it would be unsafe or unreasonable for him to relocate within India.

19. The legal burden of proof where it is maintained by the Secretary of State that internal relocation is a reasonable option is on the claimant. See AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC), where it is stated:

“We do not consider that the case law relied upon by the appellants comes close to establishing that the respondent bears the legal burden of proving that there is a part of the country of nationality of an appellant, who has established a well-founded fear in one area thereof, to which the appellant could reasonably be expected to go and live. The person who claims international protection bears the legal burden of proving that he or she is entitled to it. What that burden entails will, however, very much depend upon the circumstances of the particular case. In practice, the issue of an internal relocation alternative needs to be raised by the Secretary of State, either in the letter of refusal or (subject to issues of procedural fairness) during the appellate proceedings. In many cases, the respondent will point to evidence regarding the general conditions in the proposed place of relocation. It will then be for the appellant to make good an assertion that, notwithstanding those conditions, it would not be reasonable to relocate there. Those reasons may often be ones about which only the appellant could know; for example, whether there are people living in the area of proposed relocation who might identify the appellant to those in his home area whom he fears. The Secretary of State clearly cannot be expected to lead evidence on such an issue.”

20. The Secretary of State raised the issue of internal relocation in the refusal letter and pointed to evidence in support of her position. It therefore falls to the claimant to make his case as to why it would either be unsafe for him to move to another part of India or it would be unreasonable to expect him to live in another part of India.

21. There is no evidence before me that shows, or even indicates, that the claimant would be unable to move to another part of India, either because of safety concerns or the hardship he would face. Accordingly, the claimant has not discharged the burden (applying the lower standard of proof) of demonstrating his entitlement to international protection.

Decision

22. The decision of the First –tier Tribunal contains a material error of law and is set aside.

23. I remake the decision by dismissing the claimant’s appeal against the decision of the Secretary of State.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 17 March 2017