Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08219/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd March 2018
On 30th April 2018

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

[A t]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Ferguson, instructed by Londonium Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Maxwell promulgated on 12 October 2017, in which the Appellant's appeal against the decision to refuse a protection and human rights claims was dismissed.
2. The Appellant is a national of Nigeria, born on [ ] 1976, who claims to have arrived in the United Kingdom on 3 October 2000 with valid entry clearance as a spouse to 17 March 2006. The Appellant's application for indefinite leave to remain made on 9 March 2006 was refused on 5 September 2006 and her appeal against refusal was ultimately unsuccessful. An application for leave to remain on compassionate grounds outside of the Immigration Rules on 10 January 2008 was refused on 2 December 2009 and a subsequent appeal was dismissed. The Appellant then made an application for leave to remain on private and family life grounds on 16 September 2011 which was refused on 23 November 2011. Most recently, the Appellant claimed asylum on 10 February 2017 on the basis that she feared persecution, namely the risk of FGM from family members on return to Nigeria.
3. The Respondent refused the application on 11 August 2017 on the basis that the Appellant's claim to be at risk of FGM was not consistent with background country material which showed that it was more common in infancy or before marriage rather than used as a punishment for presumed promiscuity after marriage. The Respondent considered that section 8 of the Asylum Immigration (Treatment of Claimants, etc) Act 2004 (the "2004 Act ") applied to the Appellant who claimed that she had been notified of the risk to her in2011 but did not claim asylum until 2017. In addition, the Respondent considered that there was a sufficiency of protection in Nigeria and also that she had the option of internally relocating to another area where she would not be at risk. The Respondent also refused the human rights claims on the basis of Articles 2, 3 and 8 of the European Convention on Human Rights, the conclusions on which are no longer specifically challenged.
4. Judge Maxwell dismissed the appeal in a decision promulgated on 12 October 2017 on all grounds. Overall, it was not accepted that the Appellant had made a credible asylum claim, in particular, that her credibility had been damaged by section 8 of the 2004 Act; that there was a lack of supporting evidence to the claim and paragraph 339L of the Immigration Rules did not assist her; there was little evidence of the Appellant's family situation or any recent contact with them; it was not known whether the Appellant's uncle whom she feared was even still alive and even if the claim was credible, there was no real risk on return. The First-tier Tribunal also found that the Appellant would be able to internally relocate within Nigeria. Findings were also made on the Appellant's human rights claim on the basis of private and family life which have not been challenged in this further appeal.
The appeal
5. The Appellant appeals on two grounds. First, that the First-tier Tribunal erred in law in attaching too much weight to the application of section 8 of the 2004 Act and secondly, that the First-tier Tribunal erred in failing to consider risk on return having accepted that the Appellant had been persecuted in the past, which was relevant despite the passage of time since then.
6. Permission to appeal was granted by Judge Hollingworth on 15 December 2017 on all grounds.
7. At the oral hearing, Counsel for the Appellant made oral submissions on the first ground of appeal, accepting that the second ground of appeal did not make sense by reference to paragraph 30 of the First-tier Tribunal's decision which made it clear that the past treatment relied upon was against the Appellant's paternal cousin at least 25 years ago, probably longer and was not past persecution of the Appellant herself. It was however submitted that this was a relevant factors to consider in the round as part of the credibility assessment and whether there would be a real risk of persecution on return.
8. As to the first ground of appeal was submitted that the First-tier Tribunal erred in law in using section 8 of the 2004 Act as the starting point of the credibility assessment, contrary to the Upper Tribunal's decision in SM (section 8: Judge's process) Iran [2005] UKAIT 116. It was submitted that using this as the starting point prejudiced the remainder of the First-tier Tribunal's decision and distorted the fact-finding process. If credibility had been assessed by reference to all evidence in the round, then the Appellant may have been considered credible and may therefore have been able to benefit from the provisions of paragraph 339L of the Immigration Rules such that she would not have been required to substantiate her claim further.
9. Counsel for the Appellant also submitted that the Appellant was consistent in stating that FGM was used for punishment as well as prevention and although the background evidence only refers to prevention, it could possibly be both and the Appellant's categorisation should not undermine her claim to be at risk. It was however accepted that the argument was not put in that way to the First-tier Tribunal but it was suggested that if the Appellant's categorisation could have been interpreted as consistent with FGM being used as a preventative measure then it may be an error of law to concentrate only on the view that undermines the Appellant's claim.
10. On behalf of the Respondent, the Home Office Presenting Officer submitted that the Judge had directed himself appropriately in paragraph 23 of the decision, considering everything in the round and there is nothing to suggest that he did otherwise in reaching his decision. Further, there were multiple additional reasons why the Appellant was not found credible outside of the application of section 8 of the 2004 Act and this is the type of case and length of delay that would always be considered egregious and affecting credibility.
11. In any event, at paragraph 31 of the decision the claim is considered in the alternative with a finding that even if the Appellant's fear was genuine, the Judge was not satisfied, even to the lower standard, that there was any reasonable basis for such fear, therefore she would not be at risk on return. Further in paragraph 32, there is an unchallenged finding that the Appellant would be able to internally relocate within Nigeria. For these reasons the protection appeal must fail.
Findings and reasons
12. As to the first ground of appeal, it is well-established that section 8 of the 2004 Act should not be the starting point in the determination of credibility of an Appellant, although it is a factor which any Tribunal is required to take into account as a matter of primary legislation. Further the provisions in paragraph 339L of the Immigration Rules should be considered after an overall assessment of credibility has been conducted not in reliance on the applicability of section 8 of the 2004 Act alone. However, in the present appeal the order in which consideration of the various factors relating to credibility appear in the written decision can have no material effect on the outcome of the appeal for three main reasons.
13. First, Judge Maxwell provides detailed reasons in paragraphs 28 to 30 of his decision as to why the Appellant's fear on return is not considered to be genuine. These reasons include, that (i) she has failed to produce the original the letter that she states formed the basis of her fear and the envelope which she claimed it came in predated the letter itself; (ii) there is no evidence that the Appellant's uncle whom she specifically claim to fear is still alive - she had had no contact with him for over 12 years and he would now be over the age of 80, which reduce the likelihood of any real risk from him; (iii) there is no evidence of the Appellants cousin having any particular role that will enable her to be traced in Nigeria and (iv) it had been 10 years since the Appellant's divorce, six years from the last communication from her father and no directorates were ever made to the Appellant herself. These reasons are more than adequate of themselves for an adverse credibility finding even if delay or section 8 had not been taken into consideration at all. I do not find that the fact finding process was distorted and even if credibility had not been considered in the round, the same adverse findings were not only open to the Judge but inevitable on the evidence before him.
14. Secondly, as found in paragraph 31, even if the Appellant's fear is genuine, Judge Maxwell was not satisfied that any fear such had a reasonable basis. The adverse credibility findings would therefore be immaterial to the outcome of her appeal which would be dismissed for this reason in any event.
15. Thirdly, as found in paragraph 32, the Appellant could in any event internally relocate within Nigeria and it would not be unduly harsh for her to do so. The Appellant has not challenged this finding which is a further reason why in any event her protection appeal was bound to fail and would be dismissed regardless of any adverse credibility finding.
16. As to the second ground of appeal in relation to claimed past persecution, the written grounds of appeal are confused and bear no relation to the actual claim of the Appellant that it was her cousin who was subjected to FGM over 25 years ago. As originally put, that ground of appeal is mistaken and without merit. So far as Counsel sought to claim at the oral hearing that there was perhaps two different interpretations of the Appellant's categorisation of punishment which could include prevention, there is nothing to support that contention and it was not put in that way to the First-tier Tribunal. I find no error of law in the consideration of this part of the Appellant's claim and in any event, for the reasons already given above, any such error of law could not have been material to the outcome of the appeal.

Notice of Decision

The making of the decision of the First-tier Tribunal did not involve the making of a material error of law. As such it is not necessary to set aside the decision.

The decision to dismiss the appeal is therefore confirmed.

No anonymity direction is made.

Signed Date: 25th April 2018

Upper Tribunal Judge Jackson