Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06604/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 April 2017
On 20 April 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

THE Secretary of State FOR THE Home Department
Appellant
and

STB
(ANONYMITY DIRECTION made)
Respondent

Representation:

For the Appellant: Mr I Jarvis, Home Office Presenting Officer
For the Respondent: Mr L Lourdes of Counsel instructed by Edward Marshall Solicitors

DECISION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Nigeria born on 2 March 1980, as the appellant herein. On 9 June 2016 the Secretary of State refused her application for asylum. She appealed the decision and her appeal came before a First-tier Judge on 26 September 2016.

2. There had been a previous decision before Immigration Judge Harmston in July 2011. The appellant’s fear of return to Nigeria was based on the risk of her daughter suffering FGM there. She had been brought up as a Christian but her husband came from a Muslim family.

3. Judge Harmston found it perfectly reasonable to expect the appellant and her husband to return to Lagos or any other large city in Nigeria, and in paragraph 18 of his determination commented there was considerable doubt as to whether the risk of FGM was ever the serious threat envisaged by her. The risk had not been mentioned in the screening interviews and the reason given by the appellant for claiming asylum had everything to do with the fact that she had stolen money from her father and that they were living together away from their respective families.

4. The judge found the appellant’s husband had given an inconsistent account and the credibility of both him and his wife had been damaged. The claim to fear FGM was an embellishment to bolster up an otherwise unmeritorious asylum claim. The appellant and her husband could safely return to Nigeria although there might be arguments from time to time because they had married without their families’ approval. He dismissed the appeal.

5. Further submissions were made on 16 July 2013 and these were considered and rejected on 9 June 2016. Although the application was refused it was decided that the submissions amounted to a fresh claim and accordingly the appellant was able to bring the proceedings herein.

6. Among the fresh material were emails and letters from friends and family which the respondent considered to be self-serving.

7. The appellant also adduced further evidence of her mental health problems and while she was tendered as a witness before the First-tier Judge she did not speak or respond. The judge records that Mr Donnison for the Secretary of State “wisely and respectfully refrained from any cross-examination”. However, the judge did hear oral evidence from the appellant’s husband (AB). The couple now have three daughters. The appellant’s husband feared for his daughters if they were returned.

8. Mr Donnison referred to the inconsistencies in the story which damaged the appellant’s husband’s credibility and the credibility of the appellant. Mr Donnison was unable to provide the First-tier Judge with the screening interview record to make good his point that there had been no reference to FGM in the screening interview. It was submitted that the appellant and her husband had left Nigeria simply having taken money. It was submitted that a lot of the evidence was self-serving and that included the emails.

9. The judge made the following findings about the credibility of the appellant and her husband:

“84. In making the following findings of fact about the appellant’s account, I remind myself of the low applicable standard of proof, and the fact that asylum-seekers will almost inevitably have greater difficulties documenting their claims than others.

85. I have also taken into account the appellant’s state of mental health, which by all accounts is very poor. The various psychiatric reports are compelling as to her mental illness and also the risk of suicide. These problems will have had a bearing on her ability to recount and recall the difficulties she faces, and I factor them in in assessing her witness statement evidence, bearing in mind too she will have had help writing it of course.

86. As to the husband – as it was his oral evidence that came to the fore of course – I take into account similar factors. Although the mental illness is of course not his, he is having to cope with his wife’s mental illness vicariously.

87. The respondent cites a number of alleged shortcomings, inconsistencies, evidential problems or factual errors on the part of the appellant and her husband which, she suggests, undermine their credibility significantly. I deal with the challenged aspects of their account about FGM first of all, as that is the central core there [sic] asylum claim.

88. In particular, Mr Donnison took issue with the appellant’s husband’s change of mind regarding FGM. He had originally said he was in favour of it for their daughter. His wife thought he was too. That was the reason she had refrained from putting his name on the first daughter’s birth certificate, as she did not want him controlling that aspect of the daughter’s life. After converting to Christianity, and after talking to his pastor about it, says the husband, he changed his mind completely about FGM. He became very strongly opposed to it, and the births of their further to [sic] daughters strengthened that opposition to the practice. Mr Donnison in effect suggests that a change of mind is unlikely. I do not see that. People do change their minds. The movement against FGM in Nigeria and elsewhere 6 [sic] to have exactly that effect and is premised on the notion that people will change their minds when they understand the barbarity of it. That is simply what happens to the appellant’s husband in my view. He began to understand how wrong it was, and moved from a supportive position to an opposition to FGM.

89. The effect of that is that I do not find the change of heart other [sic] husbands part to be in any way damaging to the account.

90. Mr Lourdes frankly concedes that nobody can really know what was discussed at the screening interview because there is no record of it. Mr Donnison suggests, but cannot substantiate, that FGM was not mentioned by anybody at the screening interview. Moreover, he stopped pursuing that line of cross examination once he realised there was no copy of the screening interview record on file. The appellant’s husband’s account is that she raised FGM when she was being asked about the first daughters birth certificate, and why his name was not on it. Her answer had been that she had wanted to keep his name off it so that he could not control the daughter as to FGM. That is credible, in my view, as it is not so blatant as to simply argue after the event that she had said FGM was at the core of their asylum claim; she merely says she did raise it. The way she raised it, on her account, was in the context of a differently focused question, and I find that entirely credible because she has not sought to exaggerate the extent to which she spoke about it. I find that to the lower standard of proof, she did mention FGM in the way she says, and in the absence of a written record, there is nothing to rebut that finding.

91. I do not propose to make full findings of facts here and the precise date of the appellant’s mental health. I am content to find that the medical evidence before me, e.g. from Dr Siddiqui, is reliable and wholly authentic, and represents Dr Siddiqui’s impartial clinical view. It supports a finding that the appellant has the mental illnesses conditions that she says she has.

92. Mr Donnison’s chief criticism of the evidence used for the fresh representations – i.e. the emails among other things – is that they do indeed postdate the previous refusal upon appeal. He also says they are self-serving: well, evidence usually is – that is the point of evidence to support an appeal. But he reasons from that that it is unlikely the emails prove any risk. He does not in fact challenge in terms the authenticity of the emails as such.

93. From that I conclude that the existence content and fact of the emails is more or less agreed. I concur with that and find that they are authentic, and not concocted or fabricated for the purpose of the appeal. On the lower standard of proof, they do represent the views of the writer, a family member who is expressing very strong disapproval of the appellant and her husband, and giving a clear indication of the kind of hostile reception they would get if they returned. I find, again on the lower standard of proof, that once those emails are placed in the context of the overall country evidence about FGM in Nigeria, their subtext is very clear. They represent, in my view, a reasonably plain threat to inflict FGM on the daughters. FGM, and the fact of it happening in that very family, is proven adequately by the content of the mails.

94. It follows that overall the points raised against the appellant and her husband by the respondent as to credibility do not materially damage their credibility. They do not have a major bearing on the truthfulness of the core of their story, which overall I accept”.

The judge noted that since the determination of Judge Harmston there had been fresh material including the emails, correspondence and further oral evidence as well as the Home Office County of Origin Information Report of August 2016 about the current threat of FGM. It was not apparent that Judge Harmston had considered the Home Office country information. In the light of the new evidence, including the oral evidence that babies in the family had undergone FGM in 2016, the judge found he must “radically depart” from the findings of Judge Harmston. He found that the appellant and her husband were Nigerian and of Yoruba ethnicity and that her husband was a member of a clan which practised FGM. He found it established to the lower standard of proof that FGM had been mentioned “perhaps not clearly” at the screening interview and that email exchanges now produced as evidence of family attitudes to FGM were likely to be authentic. There was also a family letter which the judge was satisfied was authentic. The judge accepted that the appellant had the mental health conditions described in the medical evidence and was likely to have been unable to speak during the hearing because of her psychological state rather than this being a choice she had made or a protest. The appellant’s husband’s family were part of a patriarchal family network where the extended family exerted very real power in respect of inflicting FGM on newborn female members of the next generation. It was accepted that the appellant was estranged from her family due to the circumstances in which she left.

10. The judge then reviewed the extensive country information which had not been available to Judge Harmston. He noted in particular the tribal/ethnic association with FGM in respect of Yoruba. He concluded from the overall country evidence that the appellant’s daughters would be at very serious risk of having FGM inflicted upon them. As he had made his findings about the risk in relation to FGM by reference to objective materials, it was not necessary to make further detailed findings on other matters raised by the appellant’s husband or the circumstances in which they had left Nigeria or the precise date of the appellant’s mental health. This was because all of those matters were “to some extent peripheral to the central objective fear of FGM”.

11. The judge turned to consider internal relocation and sufficiency of protection in the concluding paragraphs of his determination as follows:

“104. The respondent argues that, in effect internal relocation is a possibility and moreover that the Nigerian state will now protect girls against FGM. The evidence strongly suggests that there is insufficient protection however, and although it is true that there is now a statute against FGM (the Violence against Persons (Prohibition) Act 2015), there is plenty of evidence before me to show to the lower standard of proof that it is unlikely a complaint to the police or other authorities would have any effect whatsoever on the family elders power to enforce FGM: see paragraph 6.5.14 of the Home Office Country of Origin Information Report.

105. Internal relocation moreover, is likely to produce conditions of very considerable harshness for the family. That they were originally a mixed religion family is likely to mark them out if they were newcomers in an area, for example, of Lagos. They would be moving to an unknown area with no family support, no accommodation, no work to go to, with three daughters. The appellant’s mental health condition would need to be dealt with in any arrangements they made to create a new life in Lagos or wherever. Without any suggestion that this would interfere with her ECHR rights, I find it would be a factor limiting their ability to move and reside somewhere else without significant support. It would inhibit the husband’s employability, at times when the appellant’s ability to childcare [sic] was impaired. There would be no prospect of seeking any kind of remote help from family, as the appellant’s husband’s family must not know of their presence in Nigeria for obvious reasons. As regards the appellant’s own family, the respondent has accepted that it is likely she stole money from them, and accepts her account of estrangement from them, as I do, and this makes support from that side [of the] family also an impossibility”.

12. The judge accordingly allowed the appeal on asylum grounds.

13. The respondent applied for permission to appeal, taking exception to the judge’s findings in paragraphs 92 and 93 of the decision which I have reproduced above. It was submitted that the judge had fundamentally erred and that it was categorically disputed on behalf of the respondent that the emails relied upon by the appellant were genuine or legitimate evidence of any threat. The respondent’s position was, and is:

“That the appellant has caused or allowed her family members in Nigeria to pretend to threaten to practise FGM upon the appellant’s child, when in reality there is no reliable or independent evidence capable or demonstrating that such a threat genuinely exists”.

14. It was submitted that the judge had “jumped from acceptance that the emails are in fact emails, to a conclusion that the emails are therefore reliable evidence of the matters stated therein”. The judge’s conclusions as to credibility were unsustainable.

15. The appellant had refused to confirm her name or give any oral evidence at her appeal hearing while seeking to rely upon her witness statement. The judge had not adequately explained why significant weight had been given to her evidence. It had been clearly submitted that the evidence from the appellant should not carry weight.

16. The judge had materially misdirected himself when finding that internal relocation would not be a reasonably available option. The family could live in Lagos which was a big city with many opportunities for returnees. The finding that they might struggle to get childcare was not a reason to grant asylum. There was no evidence cited that the appellant would find it difficult to access medical or psychiatric assistance.

17. In granting permission to appeal the First-tier Judge noted that the Record of Proceedings was very clear and the Presenting Officer had very firmly put in issue the credibility of the appellant’s claim and had disparaged the emails as evidence deserving of weight. The judge had erred in finding that the Presenting Officer had agreed that the emails were authentic.

18. Mr Jarvis submitted that parts of the determination had not been proofread properly, but it was clear that the Presenting Officer had put the reliability of the emails in question. The judge has misunderstood the Presenting Officer’s case. The evidence had been challenged. This went to the heart of the determination. He had tainted the findings in relation to the risks on return and relocation.

19. The appellant had been tendered to give evidence but had not in fact said anything. The determination should be set aside and reheard by the First-tier Tribunal.

20. Mr Lourdes submitted that there was no material error of law. The judge had set out the respective cases for the appellant and the respondent and had given good reasons for his decision. He had referred in paragraph 64(l) to the appellant’s husband’s family tradition of practising FGM and about four members of the family on whom FGM had been inflicted recently. Further reference had been made to this in paragraph 74 of the decision. The judge had looked at the country information and had carefully considered the issue of relocation. The judge had not materially erred in law in referring to the Presenting Officer’s position on the emails in paragraphs 92 and 93 of the decision.

21. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the judge’s decision if it was materially flawed in law.

22. The central issue in this case is whether the judge misdirected himself in dealing with the issue of the emails in the light of the position of the Presenting Officer.

23. The determination as a whole is very well reasoned, although I accept that there are some typographical mistakes which is not perhaps surprising given the length of the decision. I do not find that there is any want of care given to the determination by the judge which is, on the whole, very well and fully reasoned.

24. The focus is on two paragraphs of the decision and the question is how they should be read. Did the judge misrepresent or misunderstand the submissions made by the Presenting Officer?

25. The position of the Secretary of State was, as I have observed in summarising the grounds, that the family members were induced to pretend to threaten to practise FGM upon the appellant’s child.

26. In other words, these could be genuine emails representing a completely false position. Whether the emails were authentic as emails, or representative of the truth, are two different concepts. What the judge says in the second sentence of paragraph 93 indicates that he was alive to the point made by the respondent – the emails were “not concocted or fabricated for the purpose of the appeal. On the lower standard of proof they do represent the views of the writer...”

27. While the judge in paragraph 93 concluded that the “existence content and fact of the emails” is more or less agreed, it is worth bearing in mind that he agreed with that position – in other words, he arrived at the same conclusion himself. In the unlikely event that he had misunderstood what the Presenting Officer was saying, it is clear that he reached his own independent conclusion. However, I do not find that there was any misunderstanding – the position of the respondent as said in the grounds of appeal was that the family members had been induced to pretend to make threats and accordingly the emails could not be taken at face value.

28. I do not find that the judge erred in the way that he approached the emails or in misconstruing what the Presenting Officer had said and leaping to the acceptance of the matters stated therein. He went on to place the emails into the context of the country information and directed himself in the correct manner in relation to them.

29. That was really the principal point taken in the grounds. It was also submitted that the judge had erred in placing weight on the appellant’s evidence when she had not been able to give any oral evidence. However the question of weight to be given to evidence was a matter for the judge and it is quite clear that he accepted the medical evidence about the appellant’s condition. The judge made it clear to the Presenting Officer that the fact that the appellant was not examined on any matter did not prevent the Presenting Officer from challenging matters in submissions. His approach was perfectly fair. The First-tier Judge did not expressly give permission in relation to this point or in relation to the argument based on internal relocation. I have set out the judge’s findings in relation to internal relocation above. He took into consideration all material matters. He had fully directed himself on the background material and the specific risk which he found in relation to the appellant’s daughters. He gave very careful consideration to the particular circumstances of the family and I am not satisfied that he erred in law in his consideration of these matters. Mr Jarvis submitted that the errors in the judge’s approach to the emails infected his consideration of the risks on return and relocation but I do not find that he did so err.

30. For the reasons I have given the determination of the First-tier Judge was not affected by a material error of law and I direct that it shall stand.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

The First-tier Judge made an anonymity order which it is appropriate to continue:

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 both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Fee Award

The First-tier Judge found that no fee was paid or payable. Therefore there can be no fee award.

Signed Date 19 April 2017

G Warr, Judge of the Upper Tribunal