Tribunal decisions

The decision

Appeal Number: UI-2023-000582 [PA/52597/2020]
Upper Tribunal Immigration and Asylum Chamber
THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

HKMAS
(Anonymity direction made)

Appellant before FtT
and

Secretary of State for the Home Department

Respondent before FtT

THE UPPER TRIBUNAL’S DECISIONS:

(1) ON THE APPLICATION FOR PERMISSION TO APPEAL OUT OF TIME
(2) APPLICATION FOR PERMISSION TO APPEAL TO THE UPPER TRIBUNAL
(3) WHETHER THE FIRST-TEIR TRIBUNAL HAS ERRED IN LAW
(4) DECISION AND REASONS IN RELATION TO THE SUBSTANTIVE CLAIM

Before: Upper Tribunal Judge Hanson and Upper Tribunal Judge Keith sitting at Field House on 26 March 2024.

Application by the Appellant

Upon hearing:

Ms Knorr for the Appellant
Ms Everett on behalf of the Secretary of State.

Following the order of Mr Justice Poole, sealed on 16 November 2023 in application AC-2023-LON- 001758, which quashed a decision of the Upper Tribunal dated 5 May 2023 which found the Tribunal had no jurisdiction to consider an application for permission to appeal a decision of the First-tier Tribunal out of time, the matter has been listed for consideration to be given to the matters set out at [9] of the Statement of Reasons attached to the Administrative Court order.

As a result it has been necessary to hold an oral hearing of the application for permission to appeal.

Our Order:

1. The time limit for the Appellant to file her application for permission to appeal is extended and the application admitted.
2. Permission to appeal is GRANTED
3. We find the First-tier Tribunal Judge has materially erred in law in relation to the decision to dismiss the Appellant’s claim under the Refugee Convention.
4. We substitute a decision to allow the appeal on Refugee Convention grounds.

REASONS
(including any decision on extending time)

The Background

5. The Appellant (also referred to as ‘He’) is female a citizen of India born on 5 November 1983.
6. The Appellant’s husband (also referred to as ‘Ha’), is a dependent upon her claim for international protection. He is also a citizen of India and was born on 4 March 1985.
7. The Appellant and her husband applied for Visit Visas to enable them to enter the UK on 26 September 2018. These were granted on 8 October 2018 valid from 31 October 2018 to 30 April 2019.
8. On 14 February 2019 the Appellant and her husband arrived in the UK.
9. On 22 February 2019 the Appellant made an appointment with the Asylum Intake Unit, Croydon and on 11 September 2019 the Appellant’s representative requested the main applicant in the asylum claim should be the Appellant.
10. The Appellants previous representatives were Good Advice UK, Immigration Law Firm based in Vauxhall, London (‘previous solicitors’). The adviser’s name was Rima.
11. The Appellant’s current representatives are The Coram Children’s Legal Centre (‘current solicitors’). Their adviser is Solange de Carvalho.
12. On 20 November 2020 the Secretary of State refused the application for asylum pursuant to paragraph 336 of the Immigration Rules. The Respondent also decided the Appellant had not shown there were substantial grounds for believing that she faces a real risk of suffering serious harm on return from the United Kingdom to India and therefore did not qualify for a grant of humanitarian protection.
13. The Respondent also did not accept the appellant was entitled to any leave on human rights grounds either within or out-with the Immigration Rules.
14. The appeal against the refusal came before First-tier Tribunal Judge Clarke (‘the Judge’) sitting at Hatton Cross on 28 March 2022. In a decision dated 16 May 2022 Judge Clarke noted there are two strands of the Appellants claim, one relating to a risk arising from her interfaith marriage, which the Judge dismissed, and which is not a matter that has been raised at all before us to an extent that requires further consideration, and the Appellant’s claim of gender-based violence.
15. Judge Clarke noted the Appellant claimed she had been sexually assaulted and raped in India on a number of occasions. These are referred to by Judge Clarke at [85 – 86] of the determination.
16. At [87] Judge Clarke makes a finding that it is accepted the Appellant was raped by her cousin on two separate occasions as she alleges, and at the age of 22 was sexually assaulted by a neighbour, and that although her sister told their mother their mother did not do anything about it, did not confront the neighbour, and told the Appellant to keep quiet about it [89]. That in December 2015 the Appellant was sexually assaulted by a group of men at a VT station in Mumbai, an occasion on which she was unable to ask for help due to her deafness, and that when she attempted to report the matter to the police they were unable to communicate with her, and no report about the matter was ever filed by them [90].
17. Judge Clarke found the Appellant’s evidence of having been sexually assaulted and raped entirely consistent with the background evidence on gender-based violence in India.
18. Judge Clarke then moved on to consider the question of sufficiency of protection from [99].
19. As there will only be a need to consider issues such as sufficiency of protection and/or whether there is an internal relocation option if there is a primary finding of a real risk of harm in an individual’s home area on return, as otherwise such issues do not arise, it can be inferred this was the finding made by the Judge.
20. Judge Clarke’s findings in relation to sufficiency of protection are to be found at [99] – [113]. The Judge, in summary, finds that there is sufficiency protection available to the Appellant if required in India.
21. Judge Clarke then goes on to consider internal relocation from [114], finding Appellant has an internal relocation option based upon the size of India, the fact the Appellant and her husband have travelled extensively; albeit primarily for the purposes of attending conferences around the world for the deaf community.
22. The Judge accepts that sexual violence is capable of amounting to acts of persecution and that is not a matter that we were asked to make any findings upon.
23. At [120] – [121] the Judge writes:

120. However, the objective evidence in the CPINs on India demonstrate that there is a functioning police and judicial system in India. I accept that the Appellant’s deafness makes it more difficult to access the system, and the police have shown their incompetence in investigating the incidents reported by the Appellant to them but such incompetence and the inability to communicate effectively with a profoundly deaf complainant is not the same as an unwillingness or inability of the State to protect victims/survivors of gender based violence. 21 - 0026 Appeal Number: PA/52597/2020

121. For all these reasons, I find that the Appellant has failed to prove that she has a wellfounded fear of persecution in India either on account of her inter-faith marriage or as a deaf woman who has experienced/survived gender based violence or who fears gender based violence. The Appellant has been the victim of horrific and traumatic crimes but she has not been persecuted by the State or State agents.

24. Judge Clarke did not accept the Appellant is entitled to a grant of Humanitarian protection on the basis it is said the Appellant had failed to prove that there is a real risk she will suffer serious harm on return to India
25. Judge Clarke considers the human rights aspect of the appeal within the Immigration Rules from [126]. The Judges key findings in relation to paragraph 276ADE(1)(vi) are set out at [134] – [136] in the following terms:

134. I rely on the fact that the Appellant is a victim/survivor of multiple sexual assaults and 2 rapes. The 2 incidents that she did report to the police were handled incompetently by the police and betray the kinds of barriers with police and the legal process in India that the country background information describes faced by woman who have experienced/suffered gender based violence. I accept that the Appellant has a subjective fear that she will be the subject of further attacks in the future regardless of where she lives in India. I, of course, take into account that the Appellant’s deafness intensifies and magnifies this fear because, as she described, she is not able to ask for her help in the way that a hearing person would be able to do.

135. Under cross examination, the Appellant stated that she had taken to staying at home rather than going out by herself in India. Her evidence was that her husband had told her to stay at home to avoid potential abuse and that “mostly stayed at home.” This kind of lifestyle of staying indoors to avoid potential incidents similar to what she experienced in the past in my view means that the Appellant’s fear prevents her from fully participating in Indian society and operating on a day to day basis in that society. The Appellant’s trauma from the sexual assaults and rapes and her fear of future incidents are, in my view, very significant obstacles to her ability to reintegrate to life in India.

136. I therefore find that the Appellant meets the requirements of Paragraph 276ADE(1) (vi). It follows that the Appellant meets the requirements of the Immigration Rules for a grant of leave on the basis of her Article 8 private life.

26. In relation to Article 8 outside the Rules, the Judge at [154] sets out findings in relation to the balance sheet exercise after which it was found that the Appellant’s ability to meet the Immigration Rules determines the proportionality exercise in her favour, leading to the appeal being allowed on human rights grounds but dismissed on asylum and humanitarian protection grounds.
27. Rule 33(2) The Tribunal Procedure (First-tier Tribunal) (Immigration Asylum Chamber) Rule 2014 provides that a party seeking permission to appeal to the Upper Tribunal, for an individual in the UK, must be provided their application to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was provided with written reasons for the decision. It is not disputed before us that the Appellant became appeal rights exhausted on 30 May 2022.
28. No application for permission to appeal to the Upper Tribunal against those parts of the Appellant’s case that were dismissed was made by her, nor any application for permission to appeal the parts of the Appellant’s case that had been allowed was made by the Secretary of State, in time.
29. The Appellant was granted leave to remain on human rights grounds on 24 August 2022.
30. The skeleton argument of Ms Knorr claims that to the Appellant’s knowledge the Secretary of State never informed the First-tier Tribunal of the grant of leave nor did the Appellant received notification from the Tribunal that her appeal was abandoned, which it is stated was unsurprising since there was no outstanding appeal at the time the leave was granted. At [13] of the skeleton argument it is said that was because, as is agreed between the parties, for the purposes of section 104 Nationality, Immigration Asylum Act 2002, there was no appeal pending since the timeframe for applying for permission to appeal had expired. We agree with that analysis.
31. Ms Knorr to raise a number of issues in relation to section 104 of the 2002 Act both in her pleadings and an initial address to the Tribunal before us today, but was advised that we do not consider we needed to be addressed on such points, and therefore did not permit her to do so, as the real issue in this appeal has always been nothing to do with section 104 but whether time should be extended to enable the Appellant to appeal out of time and, if so extended, whether she has established arguable legal error material to the decision of Judge Clarke. Neither of those issues require any consideration of the points discussed in the material we have received so far as it relates to section 104.
32. We will make one observation however in relation to the comment by Ms Knorr that section 104 contains no time limit for when notice should be given pursuant to section 104(4B). That is correct but is because there is no need for a specific timeframe to be given as the section contains the proviso that such notice must be given in accordance with Tribunal Procedure Rules that an individual wishes to pursue an appeal so far it is bought on one of the grounds specified in section 84(1)(a) or (b) or 84(3).
33. It is also the case that section 104 does not arise in the context of this particular appeal. Section 104 defines when an appeal is pending and specifically at section 104(1)(b) states that an appeal is ended when it is finally determined, withdrawn or abandoned or lapses under section 99. We accept an appeal is not finally determined whilst an application for permission to appeal could be made or is awaiting determination, permission to appeal an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 has been granted and the appeal is awaiting determination, or an appeal has been remitted. In the current appeal as there was no application for permission to appeal in time the appeal the appeal was deemed to have been finally determined and therefore was not pending from 30 May 2022.
34. The reason we focused upon the question of whether the application for permission to appeal out of time should be granted and the appeal admitted is that this will have the effect of reinstating the status of the appeal as a pending appeal. It needs no separate decision or consideration of section 104 point raised by Ms Knorr to come to that conclusion.
35. Following the determination being promulgated and sent to the parties the Appellant was seen by her previous solicitor and a conversation took place with the assistance of a British Sign Language (BSL) interpreter. That is an issue which we will discuss in further detail below.
36. The Appellant’s case is that although there was a conversation with her previous solicitor she was never advised that she could appeal the refusal of her Refugee Convention claim.
37. At [14] of her skeleton argument Ms Knorr writes:

14. By chance, the Appellant and her husband came across further advice through attending a food bank and, after delays caused by complexities around securing funding for a British Sign Language (‘BSL’) interpreter and legal aid funding to bring the appeal (see first statement by Solange De Carvalho (§2-9 SDC1 A/p.53-56 and §12 HS4 A/p.80-81), a grant of legal aid was confirmed on 19 December 2022 and on 23 December 2022 the Appellant sought permission from the FTT to appeal, out of time, on asylum grounds only and applied an extension of time for doing so. The Appellant, made clear when the out of time application for PTA was filed with the FTT that she wished to pursue the appeal despite being granted leave to remain - see §2 FTT PTA where it says (A/p.44) “There was no appeal by the Respondent on human rights grounds and the Appellant has been issued with a BRP on 26 August 2022; for the avoidance of doubt however she wishes to pursue this appeal”

38. When considering the issue of delay in making the put of time application it is necessary to look at the whole period of delay from 30th May 2022 to when the application for permission to appeal was actually lodged. That naturally includes a period of time following instructions being provided to the Appellant’s current solicitors and their being able to obtain instructions, funding, obtain the file from the previous solicitors, and provide advice to the Appellant. We asked Miss Everett whether there was any issue being taken in relation to the delay following the instruction of the current solicitors which she confirmed there was not. We agree.
39. The application for permission to appeal to the Upper Tribunal which in accordance with settled practice was submitted initially to the First-tier Tribunal, is dated 23 December 2022. The application was accompanied by grounds containing an application for an extension of time as well as the grounds of appeal.

Application for extension of time.

40. The Appellant claims the delay of seven months is not her fault and that time should be extended for the following reasons:

i. At the time the FTT determination was received the Appellant did not understand implications of the judgment for the form of leave she would be granted, or on the merits of appealing the decision on refugee grounds. There was no interpreter present when the determination was provided to her and it is unclear what advice, if any, she was given by her previous advisors but what is clear is that she did not understand that there were grounds of appealing or that an appeal could make a difference to the form of leave granted. Clearly had the Appellant understood her situation she would have instructed her lawyers to bring an appeal as she has now done having been provided with proper advice.
ii. There are strong grounds for appealing the determination on refugee grounds (see Grounds below).
iii. The delay in appealing is in significant part as a consequence of the Appellant’s disability and it is a reasonable adjustment (in accordance with the Equality Act) to admit her appeal despite it being delayed.
iv. The Appellant’s appeal has been allowed on Article 8 ECHR grounds and therefore her family has been issued with BRPs and are allowed to remain in the UK. There is thus not the same public interest in finality as where the Respondent is seeking to remove an appellant following an unsuccessful appeal.
v. Once the Appellant secured alternative representation her new representatives acted promptly to provide advice to the Appellant, to obtain legal aid and to instruct counsel to settle grounds of appeal swiftly after the grant of legal aid on 19 December 2022. While there were delays in the process of obtaining initial instructions and thereafter in securing legal aid, this was due to the complexities around securing funding for an interpreter and legal aid funding to bring an appeal, both of which were essential and which were outside of the Appellant’s control.
vi. The Appellant is an accepted victim of repeat sexual violence and the question of whether she is entitled to asylum is of vital importance. If there was an error of law in the decision, which for the reasons below it is submitted there is, then there is a strong public and private interest in correcting that error and ensuring that the Appellant is provided with the protection to which she is entitled.

41. It is appropriate at this time for us to outline our understanding in relation to the Appellant her husband’s disabilities as they are an important and consistent theme in relation to the case she seeks to advance. The Appellant is deaf. She is a person who is profoundly deaf. Levels of deafness are measured as ‘mild’, ‘moderate’, ‘severe’ or ’profound’.
42. British Sign Language (BSL) is the indigenous language of people in Great Britain who were born deaf or who became deaf early in life. It has its own syntax and grammar and it is important to note that one must not assume that somebody who uses BSL can read documents as English may not be their first language. It is accepted that most deaf people who can read and write English to some extent may still have difficulty with complex grammar and less common words.
43. It is also the case that the Appellant has a severe speech disorder meaning her only effective means of communication is through BSL.
44. The Appellant’s husband likewise has hearing and speech impediments and in his asylum screening interview makes it clear that his preferred method of communication is through BSL.
45. Miss Everett in the course of her submissions, when the issue of understanding was being discussed, referred to the fact the Appellant’s husband was a graphic designer, that they had travelled extensively, and indicated they had built a life for themselves. Whilst that may be so it is important proper account is taken of their disability when considering the issues before us today, and in particular what can reasonably be expected in relation to their level of understanding of the issues communicated to them and, specifically, whether they can be deemed to understand technical issues such as rights of appeal against judicial decisions and tests relating to entitlement to international protection based on the Refugee Convention or to a grant of Humanitarian protection without proper advice.
46. As noted at point (i) the appellant is claiming that at the time the determination was received she did not understand the implications of the judgement or the form of leave she would be granted or of the merits of appealing the decision on refugee grounds. It is claimed there was no interpreter present when the determination was provided to her and that it was unclear what advice if any she was given by her previous advisors. The large proportion of the hearing before us was taken up discussing this particular issue.
47. If the determination had been posted directly to the Appellant at home then her claim is credible. It was unlikely there would have been a BSL interpreter present and even if she or her husband were able to read the decision that does not necessarily mean they would have understood the Judge’s findings, or the implications of the same.
48. We feel it appropriate to record at this stage that Ms Everett emphasised on more than one occasion she was not asserting that in her recollection of events the Appellant was lying.
49. The question therefore moves on to what advice was received by the Appellant from her previous solicitors.
50. There are within the bundle provided to us a number of documents originating from the previous solicitors. The witness statement from the current solicitors shows that having received and accepted instructions from the Appellant they took the preliminary step of requesting the file.
51. We have seen within the documents provided an email from the previous solicitors to a named individual who also has hearing difficulties but who has the ability to read English and who has assisted the Appellant, dated 17 October 2022, in the following terms:

…

I am writing because we have received a File Transfer Request to make an application to the Upper Tribunal. As you are aware that your appeal was allowed on Article 8 on the basis that there would be insurmountable obstacles to your reintegration in India. You are then granted limited leave to remain and a BRP has been issued.

Given that the appeal was successful and the file transfer has been requested, I wanted to check if there are any issues you would like to discuss with us about the process and our services?

52. An email response dated 22 November 2022 in reply to the above is in the following terms (verbatim):

Let I explain you about [Ha] and [He] want free lawyer with free interpreter. So they were happy that you and team help them but you didn’t advice tip to them and me rule of UK. For example we have to ask you some questions then you r answer to us as well as you had been limited communication with us. We noticed that you didn’t advise to urself. We remember that we don’t the money so you look to charity somehow you informed us last time that as u need the money for appeal Home Office. We borrowed me money. That is not right. We found out other lawyer with interpreter had been advised us lots point policy UK asylum between human protection. We realised and disappointed with u and we wish you should tell us explain asylum and human protection. That is why we need to look free other lawyer and interpreter. The solicitors replied, dated 22 November 2022,

53. The previous solicitor’s response, also dated 22 November 2022, is as follows:

I am afraid that is not correct that we did not inform you about the difference between humanitarian protection and refugee status. I have had several meetings that lasted couple of hours with [Ha] and [He] about this and this was also included in the terms of instructions that they signed.

54. During the course of the hearing Judge Keith made reference to the decision of the Upper Tribunal in BT (Former solicitors alleged misconduct) [2004] UKIAT 311, the head note of which reads:

If an appeal is based in whole or in part on allegations about the conduct of the former representatives, there must be evidence that those allegations have been put to the former representatives, and the Tribunal must be shown at either the response or correspondence indicating that there has been no response.

55. On 21 December 2022 a further email was sent by [Ha] to Good Advice UK in the following terms:

We are complaining because we were not advised that we could appeal the asylum part of the appeal decision. We were not advised of this at the time.

56. The response, from Rima, the Immigration Adviser with Good Advice UK reads:

Please refer to the emails sent to you.

After the appeal was allowed, we had two meetings one hour each in which an interpreter was present and you were informed of the different options and the risks.

We cannot entertain repeat complaints as these are baseless and we are just going around in circles.

57. We are satisfied that in accordance with the guidance provided in BT the Appellant approach her previous solicitors, put the allegations to them in clear terms, provided them with an opportunity to respond, and has provided a copy of that response.
58. During the course of the hearing we asked Ms Knorr whether we had been provided with all the relevant documents received from Good Advice UK in relation to this matter. It transpired that the Appellant’s current solicitors had written asking for a transfer of all the file in further correspondence, as what was sent appeared incomplete, but nothing further had been received. We were told, for example, that the documents that had been sent following the transfer request did not include any attendance notes of meetings that occurred with the Appellant, her husband, or anybody providing assistance to them.
59. There is no indication the papers are being retained as a result of a lien or any reason why there should not have been a full and proper transfer of file between the legal representatives.
60. Based upon the information we received during the course of the hearing we make a finding of fact that the current solicitors have not been provided with all the information relevant to the conduct of the appeal by the Appellant’s previous solicitors. We find it appropriate to make such a finding especially as the obligation upon a solicitor or legal adviser is to fully record and retain an account of meetings they have had with their client, or other relevant persons, by way of a detailed file note, which if it appears in this appeal have not been disclosed.
61. We have no reason to doubt that advice may have been given at preliminary meetings in relation to the options open to the Appellant, which are likely to have included advice upon Refugee Convention, Humanitarian Protection and human rights issues. We have no reason to doubt that if we were able to see the letter of instruction, often referred to as the Client Care Letter, there will be confirmation of such advice being given. That is not, however, relevant to the issues that have arisen before us today.
62. The compass of our attention must be upon what advice the Appellant received after Judge Clarke’s determination had been handed down and sent to the parties. Before us it was not asserted that no advice was received, but that no specific advice was given in relation to the ability to challenge the refusal of the dismissal of the refugee convention claim, or any other international protection ground.
63. Ms de Carvalho of the Coram Children’s Legal Centre, in her second witness statement dated 31st January 2023, has provided additional information in relation to what occurred when the determination was handed down. It is accepted that earlier claims that the Appellant did not have an interpreter at the meeting with her previous solicitors in May 2022, in which the decision of Judge Clarke was explained, is incorrect. As a result of documents received since the application for permission to appeal was drafted and filed it is accepted there was an interpreter at the meeting. The explanation for the statement to the contrary is accepted as being a misunderstanding of her client’s instructions. It appears the Appellant’s instruction that no interpreter was provided by the solicitors is correct as it was the Appellant’s Family Liaison Officer who arranged an interpreted to attend, as she explained in her statement. That explanation was not disputed nor any point raised in relation to it at the hearing before us.
64. There is a note of a meeting which took place on 29 May 2022 between the Appellant and the previous solicitors. We find we can put weight upon the note as an accurate record. It was drafted by Samantha Brown a British Sign Language/English interpreter as an accurate record of what was said on the day. The note reads:

Update on Fridays meeting. The solicitor confirmed that [He] and her family were granted Human Rights and the Article 8 (right to family life).

The solicitor explained to appeal against this decision and that they have until 1 June to do so. If HO do not appeal, they will be granted a visa. Their Indian passport will also be returned and they can use that to travel.
When they receive their Visa, they will need to check if the Home Office have stated “no recourse to public funds”. If this restriction has been added to their Visa then they will need to apply to have this removed. The solicitor has stared that Elena (you) can help them to do this by completing a form.

It will take approximately 1 to 3 months until they receive the Home Office letter. This will be a BRP biometric card. They will need to check if the son has been added to the application, (this is unlikely as he was not part of the application when it was originally made). If the son is not on the application, they will need to do an application for the son separately under human rights act which is supposedly straightforward.

Their Visa will need to be extended every 30 months (2 ½ years) until 10 years. Then on the 11th year they can apply for ILR (Indefinite Leave to Remain).

Each time they apply to extend their Visas it will cost £3000 per person per application. The cost for ILR will be £2333 each. There is a waiver form that you can complete for the cost of extending the Visa, you will need to provide financial evidence - bank statements etc. There is NO waiver for the cost for Indefinite Leave to Remain application.

The application to extend the Visa needs to be done 28 days before it expires and there will need to do this via a solicitor/legal representative.

When their son is 10 years old they can apply for citizenship for him, the cost of this is £1330.

This is the outcome of the meeting up with the solicitor.

65. We have no reason to doubt that the above advice was given which, had the only issue related to the consequence of Judge Clarke allowing the appeal on human rights grounds only, would have been adequate. What the record of that meeting shows, however, is that at no time did the Appellant receive any advice in relation to any options available to her to challenge the decision of Judge Clarke to dismiss her appeal on protection grounds.
66. On the basis of the evidence before us we make a finding of fact that there is no evidence to show that the Appellant, her husband, or any person assisting her, was advised by her previous solicitors of her ability to apply for permission to appeal to the Upper Tribunal to challenge the rejection of her claim for international protection or, in particular, to advise of her ability to apply for permission to appeal to challenge the dismissal of her claim to be entitled to be recognised as a refugee.
67. We make a finding of fact that the Appellant has established good reason for not having lodged an application for permission to appeal in time. It is only as a result of instructing her current representatives and their being able to obtain the necessary documentation, that it became known to her that she had reasonable prospects of success warranting such an application being made. We make a finding of fact that the disabilities of both the Appellant and her husband mean it is not reasonable to make a finding, as alluded to by Miss Everett, that even though such advice was not provided by the solicitor they should somehow have been able to appreciate that such a right may have existed and to have undertaken their own research in relation to the same, especially in relation to technical issues such as rights of appeal to the Upper Tribunal and Refugee Convention law.
68. Having established good reason for not having appealed in time we find it is appropriate in all the circumstances, and in the interests of justice, to extend time for the Appellant to lodge her application for permission to appeal to the Upper Tribunal.
69. We now move on to consider the second issue namely whether, having granted the appellant leave to appeal out of time she should be granted permission to appeal.

Application for permission to appeal

70. Judge Clarke in his determination accepted the Appellant was a member of a Particular Social Group consequent upon her experiences of gender-based violence and acceptance the Appellant had been sexually assaulted and raped in India on multiple occasions, and that her claims were entirely consistent with the background evidence.
71. Judge Clarke set out his conclusions in relation to the issue of sufficiency of protection at [112 – 113, and 120] of the determination, extracted in summary form with emphasis added by Ms Knorr in the following terms:

“112. I emphasise that I accept that the Appellant had to endure the trauma and horror of sexual assaults and, on the 2 occasions when she reported the matters to the police the and the suspects were brought to the station and questioned and then later released, the police have shown incompetence. I also accept that the background evidence confirms that it is extremely difficult for victims/survivors of gender based violence to obtain proper support through the legal process. This is compounded by the fact that the Appellant suffers from deafness and she has encountered communication barriers when reporting matters to the police.

113. However, the fact is that there is a functioning police force in India and, in the event of the police not doing their job, there are avenues of redress against the police. I find that there is sufficiency of protection to the Horvath standard. …

120. … the objective evidence in the CPINs on India demonstrate that there is a functioning police and judicial system in India. I accept that the Appellant’s deafness makes it more difficult to access the system, and the police have shown their incompetence in investigating the incidents reported by the Appellant to them but such incompetence and the inability to communicate effectively with a profoundly deaf complainant is not the same as an unwillingness or inability of the State to protect victims/survivors of gender based violence.”

72. Ground 1 of the application for permission to appeal asserts the Judge erred in his approach to assessing sufficiency of protection in that he placed undue weight on the fact there was a functioning police force in India without properly assessing whether the police would, in practice, be willing and able to provide protection to the Appellant. It is submitted that whilst the evidence showed there is a police force and judicial system gender-based violence including particularly sexual assaults against women remains very widespread and the police are often ineffective in providing protection to victims of gender-based violence including because of deeply entrenched patriarchal attitudes, stigma and institutional barriers.
73. The grounds assert the Judge did not explain when finding that the evidence did not show a systemic failure to offer protection to the Appellant, what threshold he was applying in requiring there to be a systemic failure, or why the evidence of ineffective protection was not systemic. The grounds also assert the Judge’s focus on whether there was a systemic failure meant he failed to properly address the key issue, which was whether the Appellant would, in practice, be afforded effective protection.
74. Ground 2 asserts a failure to have proper regard to the Appellant’s disability and past history of sexual assaults in assessing sufficiency of protection. That refers to the Appellant’s particular characteristics and failure of the Judge to have properly weighed them in the balance in determining whether there was a sufficiency of protection. It is submitted there was before the Judge evidence of particular failures with respect to the protection of women with disabilities who face higher incidence of rape and have particular problems securing access to justice. It is submitted the Judge’s findings do not properly take into account the discriminatory nature of any protection affording to victims which was relevant to assessing whether protection was effective for this particular appellant.
75. Ground 3 asserts a failure to properly take account past persecution when assessing sufficiency of protection.
76. Ground 4 asserts error in the Judge’s approach to the evidence of availability to bring complaints against the police and reliance on this to find sufficiency of protection is unreasonable.
77. Ground 5 asserts errors in assessing the expert evidence, claiming the Judge’s reasons for rejecting the expert evidence are unreasonable.
78. Ground 6 errors in assessing internal relocation.
79. The Judge in assessing sufficiency of protection referred to the case of Horvath v Secretary of State for the Home Department [2001] 1 AC 489 which considered:

(1) Whether persecution denotes sufficiently severe ill-treatment against which the state fails to provide protection,

(2) Whether the unwillingness to avail himself of protection is due to fear of persecution by nonstate agents despite state protection or due to fear of being persecuted for availing himself of state protection, and

(3) What the test is for determining whether it is sufficient protection against persecution in that person’s country of origin - is it sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies? Or must the protection by the state be such that it cannot be said that the person has a well-founded fear [2].

80. In relation to the third issue, that of specific reference to this appeal, Lord Hope found that the answer is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty owed to its nationals.
81. Lord Clyde found, at the least, as is noted in condition (iii) of rule 334 of the Immigration Rules, that the person must be able to show that if he is not guaranteed asylum he will be required to go to a country where his life and freedom would be threatened. There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of acts contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.
82. Lord Clyde referred to the formulation presented by Stuart-Smith LJ in the Court of Appeal decision in Horvath [2020] I.N.L.R 15, @ 26, para 22, which may well serve as a useful description of what was intended where he said:

“In my judgement there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims of the class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders”.

And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, and there may be various sound reasons why criminals may not to be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. “It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy [18].

83. The Secretary of State has produced a Country policy and information note; Women fearing gender-based violence, India, November 2022, last updated on 18 December 2023 (‘CPIN’).
84. Whilst finding that in general women are not at real risk of persecution or serious harm from nonstate actors, and that the level of societal discrimination is not likely to be sufficiently serious by its nature and/or reputation, or by an accumulation of various measures, to amount to persecution or serious harm, some women may be at more risk of persecution or serious harm although the onus is on the person to demonstrate this with each case having to be considered on its own facts [2.4.2 – 2.4.3].
85. Whilst the law calls for protection for women it is recorded that practices such as forced or child marriages, dowry-related deaths, domestic violence, rape, acid attacks, ‘honour’, unsafe gender selective abortions, sexual harassment, coerced and involuntary sterilisation and accusations of witchcraft continued to be practised despite laws prohibiting them [2.4.8].
86. It is recognised that although in general the state is willing and able to provide effective protection each case must be considered on its facts with the onus on the person to demonstrate that they will not be able to obtain effective protection. It is stated decision- makers must take account of past persecution (if any) and past lack of effective protection and that, in each case, a decision-maker must identify whether the attempts were made to seek protection and what the response of the authorities was [2.5.1].
87. In this case it is accepted the Appellant is the victim of sexual assaults including two rapes and has therefore demonstrated past persecution. It is demonstrated that the Appellant sought the protection of the authorities through the police who offered no assistance to her and in particular no protection either to her directly or by taking action against the perpetrators.
88. It is noted at [2.5.2] of the CPIN there is specific statutory laws in place which provides tough penalties commensurate with other serious offences for domestic violence, rape, acid attacks, sexual harassment, trafficking and other related offences, and that further legislation adopted in 2013 has improved the legislative framework significantly, introducing new criminal offences and stronger sanctions.
89. We do not dispute that there is on the statute book provisions which, if properly enforced, would indicate there is a sufficiency protection available to women who suffer gender-based violence in India, but we note at [2.5.4]:

Despite laws aimed at addressing gender-based violence, persistent gaps in enforcing the laws, relevant policies and guidelines aimed at justice for victims of sexual violence, persist. Access to protection can be affected by woman’s status and where she lives, especially for those from Scheduled Castes (Dalit) and those in more rural areas, and women with disabilities. Some women and girls are reluctant to report, or discouraged from reporting attacks to the police, for fear of reprisals, been stigmatised or unsupported by the justice system.

90. The Appellant is a woman with a significant disability. She is deaf and dumb with an inability to communicate without the assistance of a sign language interpreter. Her case before the Judge was that as a result of her disability, and the attitude of the police, she was unable to obtain any redress from the state for the persecution that she suffered. It is also the opinion of the country expert that there is a real risk on account of her disability of the Appellant being targeted in the future.
91. We find the Appellant has established arguable legal error material to the decision to dismiss the appeal in relation to the finding there is a sufficiency of protection. We are concerned in particular that the Judge focused upon the structure of the protection offered by the state in India rather than focusing upon whether there was a sufficiency of protection available to this particular appellant in practice, in light of her personal presentation and circumstances, and failed to adequately reason why, in light of the evidence available, she would be able to benefit from state protection available and willingly provided sufficient to satisfy the Horvath test.
92. Permission to appeal is granted on all grounds.
93. Ordinarily at this stage of an appeal, where permission had been granted on the basis of arguable legal error on the papers, directions will be given to enable the case to be listed for an Error of Law hearing for consideration to be given as to whether the areas identified as being arguable are in fact legal errors material to the decision of the First-tier Tribunal.
94. We canvassed with the advocates whether it was appropriate to adjourn the matter and whether they had any further evidence that will be seeking to rely upon. Ms Knorr submitted that as the Appellant was present in court, BSL interpreters have been provided who she clearly understood, and that she did not want further delay, she would rather the issues were resolved as far as possible today and she would like is to proceed to the next stage in the appeal process. Miss Everett indicated she had nothing that she would need to say that she had nor already said in her detailed and extensive submissions made on behalf of the Secretary of State previously and that she did not require the matter to go off for anything further to be provided. On that basis we found that it was appropriate for us to proceed to the next stage of the appeal process.

The error of law finding

95. As should be clear from the above the focus at this stage is only upon whether the Judge’s finding that there is a sufficiency of protection available to the Appellant in India is sustainable. This is, in effect, a status appeal as there is no challenge by the Secretary of State to the Judge’s decision to allow the appeal on human rights grounds.
96. We accept that in December 2012 following the gang rape and murder of Joyti Singh, a young female travelling on a bus in 2012, a judicial committee was set up to study and take suggestions as to how to amend the laws to the protect women and provide quicker investigation into cases of rape and prosecute offenders.
97. At [6.1.12] of the CIPU it is written “in regard to state responses to rape, the FH report 2022 noted that new rape cases continue to surface in 2021 despite legal reforms put in place since 2012. The same report also noted that ‘the criminal justice system as well as prominent politicians have been repeatedly faulted for their poor handling of such matters.’
98. At [6.1.13] is written: “The USSD report 2021 also highlighted the response to rape victims in India and noted ‘law enforcement and legal resources for rape survivors were inadequate, and the judicial system was unable to address the problem effectively. Police sometimes worked to reconcile rape survivors and their attackers. In some cases they encouraged female rape survivors to marry their attackers.’ The same report further noted an unspecified number of rapes by government officials during the year.
99. In relation to the question of corruption, at [6.1.17] is written: “Considering corruption, the DAI and EN report 2021 noted ‘The issue of corruption appears to be most acute in India… Multiple rape survivors from India reported that they were forced to pay a bribe to the police in order to get their case registered or for investigation to take place. Stakeholders from these countries also confirmed that they were aware of numerous instances of police demanding such bribes from survivors.’
100. Specifically in relation to access to justice for women with disabilities, at [6.2.5] it is written:

A Human Rights Watch report published in 2018 noted with regards to access to justice for women with disabilities:

‘Access to justice is particularly difficult for women and girls with disabilities largely due to the stigma associated with their sexuality and disability. As a result, they often do not get the support they need at every stage of the justice process: reporting the abuse to police, getting appropriate medical care, and navigating the court system. As former chairwoman of the National Commission for Women, Lalitha Kumaramangalam, said in December 2015: “One of the biggest challenges for women [with disabilities] is access [to services], not just physical but access across the board.”

101. That quote is taken from a report dated 3 April 2018 entitled ‘Invisible Victims of Sexual Violence, access to justice for women and girls with disabilities in India’. The report highlights that women and girls with different disabilities face high risk of sexual violence in India with those with physical disabilities finding it more difficult to escape from violent situations due to limited mobility. Those who are deaf or hard of hearing may not be able to call for help or easily communicate abuse or may be more vulnerable to attacks simply due to the lack of ability to hear their surroundings. Women and girls with disabilities, particularly intellectual or psychosocial disabilities, may not know that nonconsensual sexual acts are a crime and should be reported because of the lack of assessable information.
102. The report refers to the 2013 amendments to the criminal law in India and finds that whilst they have made significant progress in responding to the widespread challenges that victims of sexual violence endure, they have yet to properly develop and implement support for survivors with disabilities in the form of training and reforms through the criminal justice system.
103. The report finds women and girls with disabilities face unique barriers of reporting that hinder their access to redress, a fact acknowledged by the authorities in India. Reference is made to a passage from the 2014 Guidelines and Protocols for Medico Legal Care for Victim/Survivors of Sexual Violence issued by India’s Ministry of Health and Family Welfare, acknowledging that women and girls with disabilities face particular barriers to reporting sexual abuse recording because of obvious barriers to communication, as well as their dependency on caretakers who may also be the abusers, when they do report, their complaints are not taken seriously and the challenges they face in expressing themselves in a system that does not create an enabling environment to allows for such expression, complicates matters further. The report notes, despite issues being acknowledged by the government in India, there is still no system to even register attacks against women and girls with disabilities, let alone formulate strategies or a mechanism to response to their particular needs. There is a reference to a 2014 report by the United Nations Special Rapporteur on violence against women who following a visit to India has said a consistent lack of disaggregated data collection “renders the violence committed against women with disabilities invisible”.
104. The report goes on to note that whilst women and girls with disabilities may require accommodation, distinct types of support depending on their disabilities that are procedural and age-appropriate, which may include access to sign language interpretation, the presence of someone to facilitate communication, the use of simple language, an option to file reports in Braille, such support is not available in India even though the 2013 amendments and the Protection of Children from Sexual Offences Act 2012 mandated such provisions. It is said that most police do not have the training or expert support to handle such cases.
105. In relation to the specific issue of sexual violence against women and girls with disabilities the report states:

Whilst there is no disaggregated data on violence against women and girls with disabilities, senior government officials recognise this population faces heightened risk of violence, including sexual violence. In December 2015, based on her consultations with disability advocates and experts, then chairwoman of the National Commission for Women, Lalitha Kumaramangalam, said “regardless of the type of disability, incidents of rape with disabled women are much higher than with other women”

India has a dearth of population-based prevalence studies on sexual violence, especially those focused on women and girls with disabilities. However, studies by academic and non- governmental organisations provide some insight. For example, a 2004 survey across 12 districts and 729 respondents in Odisha state found that nearly all of the women and girls with disabilities survey were beaten at home, and 25% of women with intellectual disabilities had been raped. A 2011 study found that 21% of the 314 women with disabilities surveyed experienced emotional, physical and sexual violence from someone other than their intimate partner.

106. In relation to the appellant’s specific situation, she has provided an expert report written by Dr Faran Wali, a senior lecturer in religious studies in the School of History, Social Science and Philosophy at Bangor University, who was asked to provide an expert report on several specific points in relation to this case, being asked in specifically to comment upon the following:

i. Assessment of the risk of persecution/mistreatment in the form of sexual violence that the Appellant would suffer if requested to return to India.
ii. Assessment of the current risk of sexual violence and/or rape in India and its frequency.
iii. Plausibility of the appellant’s account in the context of India.
iv. Whether the Appellant is at a higher risk of sexual violence as a result of her disability.
v. Whether there are currently any laws in place to deal with sexual violence. If so, please confirm whether these operate as intended and whether they would provide the Appellant with any form of protection.
vi. Please, government and societal attitudes towards sexual violence.
vii. Whether the police investigate reports of sexual violence.
viii. Whether there is any system in place to facilitate between police and other government departments with people disability, specifically deaf, when crimes are reported.
ix. Whether the Appellant is likely to receive any form of protection from the government. If the state is unable or willing to provide the Appellant with the protection that she requires, please specify the reasons why.
x. Whether the Appellant can relocate to other parts of India or whether she is at risk of receiving the same treatment anywhere.

107. A lot of the matters which the expert was asked to consider we do not need to address further as there is a positive finding the Appellant has been the victim of gender-based violence, including sexual assault and rape.
108. Other sources have been provided showing that rape is a major problem in India. One point made by Dr Wali is that the official statistics do not show the true extent of the problem as the vast majority of rapes go unreported as victims fear rehabilitation and humiliation [34].
109. In relation to the specific question of whether there is a sufficiency of protection for the Appellant in India, Dr Wali writes:

53. It should be noted that India suffers from a serious lack of law and order. The fragile social structure, which is influenced by religious extremism, ethnic and sectarian divisions, and lack of infrastructure influence the general security situation. These factors exacerbate the lack of security and affect the overall function of law and order (Mohiuddin, 2007). This lack of security has resulted in rape and violence against women becoming common practice. Therefore, in my view, with the current lack of law and order across India, it is extremely likely that Mrs Sheikh may be targeted for as a venerable woman.

54. It is important to illustrate that violence against women is firmly embedded within the cultural fabric of Indian society. Influential and powerful members of society can engage in this type of violence with impunity. There have been recent attempts to address the lack of response to rape, especially for the powerful that engage in such attacks. The law enforcement agencies have failed to protect rape victims and families. More significantly, reports from Amnesty International have revealed that law enforcement is often complicit in in protecting the perpetrators of rape, if they are powerful (Amnesty International, 2017).

55. Many rapes are often not reported, making it a relatively underreported crime, despite its wide scale social occurrence. Essentially, individuals are discouraged from logging complaints by powerful individuals who employ law enforcement to intimidate victims. Some reports suggest that those families that have reported violence often experience increased levels of hostility against them by law enforcement (Secretary General Report, 2012). This suggests that most families hide rape attacks because they do not want to dishonour the family. 0706

56. In my opinion, the nature and brutality of violence against women in India makes it likely that Mrs Sheikh may be targeted if returned to India, especially if she is expected to live alone.

57. The judicial process in India is extremely slow and traumatic for many victims of crimes. However, unfamiliar, and stressful court environments present a heightened challenge for women with disabilities, especially during protracted legal cases. Lack of information among women with disabilities and their families about their legal rights, including the right to legal representation, prevents many from advocating for their needs

58. Sufficiency of Protection: It is important to note law enforcement in India is often under- resourced and usually corrupt (Gayer, 2014). Law enforcement agencies in India, particularly the police force, are notoriously corrupt, and subservient to the personal whims of governing politicians, the rich and criminal gangs. In general, law enforcement agencies in India have been responsible for a wide array of serious human rights violations, such as custodial torture and extrajudicial executions. In particular, the main problem that Mrs Sheikh will encounter if returned to India will relate to obtaining protection and justice, as police often refuse to register complaints. Added to this, police officials often demand large bribes, which mean those who do not have the financial resources to bribe officials are unlikely to obtain justice in a system that is extremely corrupt.

59. As mentioned, the law enforcement agencies in India have been responsible for a wide array of serious human rights violations, such as custodial torture and extrajudicial executions. In particular, the main problem that Mrs Sheikh will encounter if returned to India will relate to obtaining protection and justice, as police often refuse to register complaints. In Mrs Sheikh’s case, communication has been a major problem in reporting incidents, as police stations lack resources to deal with people with disabilities.

60. Added to this, police officials often demand large bribes, which mean those who do not have the financial resources to bribe officials are unlikely to obtain justice in a system that is extremely corrupt. 61. More significantly, human Rights Watch revealed that Indian law enforcement routinely use ‘encounter killings’ as a means to stage an armed exchange to kill an individual. “Police are rarely held accountable for these killings and families of victims are deterred from filing complaints against police out of fear of harassment or being accused of false charges” (Human Rights Watch, 26.09.2016). Therefore, in my opinion, it will be extremely difficult for Mrs Sheikh to gain sufficient protection from law enforcement agencies in India.

110. In his concluding remarks at [86] – [89] Dr Wali writes:.

86. Based on the information provided to me, I can conclude Mrs Sheikh is at risk if returned to India because of the threat posed by two distinct sources: (1) community (local-level); and (2) society (national-level). As a result, it is highly likely if returned to India Mrs Sheikh may be subjected to attacks and threats from both these sources. Attitudes described by Mrs Sheikh towards deaf women are commonplace in India. For this reason, I do believe that Mrs Sheikh would be at serious risk from gender-based violence and exploitation. 0711

87. In Indian society, those people with disabilities encounter a host of social obstacles that prevents them from seeking support and protection. If Mrs Sheikh were to relocate to other parts of India, then she may struggle for two main reasons: (1) lack of communication and (2) gender-based violence (which is rampant across India). This will mean Mrs Sheikh will be susceptible to the threat of gender-based violence in any part of India, internal relocation will not safeguard her. Without state protection, Mrs Sheikh would be at serious risk from gender-based violence.

88. Her greater risk may relate to navigating daily life as a deaf woman. She will have to reside in Indian society as deaf women, which will expose her to different forms of gender-based violence and harassment. She may be targeted as a deaf woman, as she will not have the means to communicate, placing her at significant risk. She will find it extremely difficult to locate housing and employment, as these often require communication. Thus, as a deaf woman, Mrs Sheikh will have no state support-system, and thus she would struggle to survive, which increases the risk of gender-based harassment and exploitation.

89. Finally, I confirm that, in line with my statement in paragraph 3 above, I have complied with my duties to the Court. I believe that the facts I have stated in this Expert Report are true and that opinions I have expressed are correct.

111. The Judge considered the evidence of Dr Wali and make specific reference to it at [106] – [111] of the decision under challenge. The Judge finds, however, that the report lacks balance referring to Dr Wali’s failure to mention the complaints system that exists in India in which Indian citizens can file complaints against the police which is said to be a serious deficiency in the report which makes the report, at least on the issue of sufficiency of protection, unbalanced, exaggerated and therefore unreliable. The Judge finds that even when criticising the police, Dr Wali fails to show that there is systemic failure to offer protection to women who have experienced gender-based violence and people like the Appellant with communication difficulties to the barriers they face reporting matters to the police.
112. The evidence relating to steps taken by the Indian government, especially following the high-profile rape the young lady in 2012 while on a bus in Delhi is referred to above. Dr Wali is of the view that whatever may exist in terms of the reforms and the general attitude within Indian society it will not provide a sufficiency of protection to the Appellant as a result of her particular characteristics put in the context of Indian society. The Judges analysis and decision as to the weight he felt able to place upon Dr Wali’s opinion appears to be infected by the core criticism of the determination namely a focus upon the fact there is a functioning police force, without assessing whether in practice the police will be willing and able to provide protection to this appellant.
113. The Judge also appears to have failed to consider whether the police, even if willing to provide protection, will be able to do so, to protect the Appellant from further acts of sexual assault to the required standard. Ms Knorr refers to the judgement of Lady Hale in Hoxha v Special Adjudicator [2005] 1 WLR 1063 at [38] who stated:

38. However, it is not suggested that the Kosovan authorities would discriminate against the B family in this way. So the final question is whether the authorities would be able and willing to provide sufficient protection against their ill-treatment at the hands of their own community: see Horvath v Secretary of State for the Home Department [2001] 1 AC 489. This has not been explored in evidence or argument. The most one can say is that it is not easy to protect against this sort of deep-seated prejudice but that in international law there is a clear duty to do so. The Convention on the Elimination of All Forms of Discrimination against Women, article 5(a), requires States parties to take all appropriate measures

"to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."

The Home Office Immigration and Nationality Directorate API on Gender issues in the asylum claim, para 5, points out that:

"The existence of particular laws or social policies/practices (including traditions and cultural practices) or the manner in which they are implemented may themselves constitute or involve a failure of protection Women may be subject to gender-related abuse resulting from social customs or conventions because there is no effective means of legal recourse to prevent, investigate or punish such acts."

114. We find the failure of the Judge to have undertaken the necessary holistic assessment of whether this appellant will be afforded a sufficiency of protection to the Horvath standard, in light of her disabilities and general societal discrimination, to be material.
115. We find we can put weight upon the report of Dr Wadi whose conclusions are supported by the other evidence we have been able to consider.
116. We also find the Judge’s assessment of the availability of internal flight and the reasonableness of pursuing the same to be affected by material legal error on the basis of the error concerning sufficiency of protection and also the finding that there are insurmountable obstacles to the Appellant being able to re-establish herself in India.
117. We set the decision of the Judge aside. The Judge’s findings in relation to the Appellant’s ability to succeed on human rights grounds, the acceptance of her credibility and findings in relation to having suffered gender-based sexual violence shall be preserved findings.
118. Having announced such finding in court we explored with the parties whether they were happy for us to proceed to remake the decision or whether a further hearing was required at a later date. There was no objection to us proceeding to the next stage there and then.

Remaking the decision

119. The Judge has made a finding of fact, which is preserved, that the Appellant’s account of having been raped on two occasions and having suffered sexual assault is genuine.
120. The country information supports the Appellant’s account of the high risk of gender- based sexual violence, including rape, against women and particularly women with a disability.
121. The evidence supports the Appellant’s claim that when she approached the police previously they were of no assistance to her, the lack of any understanding of her needs as a person who is deaf, the need for a BSL interpreter, or availability of the same. As found by the Judge the appellant received no assistance from the authorities when she turned to them to seek protection and redress for what she had suffered.
122. The country material although indicating improvements in some aspects of the law within India does not, in our opinion, provide sufficient reassurance that if the Appellant is returned to India and suffered similar sexual violence, her experiences with the police are likely to be any different at this time. We accept that the reforms will take time to bed in and become the norm within the police and judiciary within India eventually, but we are considering the situation as it exists at the date of the hearing.
123. We can infer from the Judge’s decision that he accepts the Appellant faces a credible real risk if returned to India. It was not suggested otherwise to us. Evidence of past persecution informs the existence of future risk. There is clearly a pattern of persecution targeting women, and women with disabilities, within India and the Appellant’s subject fear as recognised by the Judge is clearly based upon an expectation that similar persecution will continue. There is clearly a high likelihood of similar future risk similar to that the Appellant experienced in the past on the evidence.
124. The past persecution also highlighted the Appellant’s individual vulnerability and there is reference to the psychological impact which would no doubt have left emotional scars which will be highlighted if having to deal with future stressors.
125. We find on the evidence before us that the Appellant has established a credible real risk of further persecution should she be returned to India.
126. We do not find it has been established that there is a credible sufficiency of protection to her if returned as a result of the weaknesses identified above, especially having regard to the Appellant’s disability and vulnerability.
127. We do not find there is an internal relocation option as it has not been established the risk the Appellant will face is limited to a particular area of India, albeit it appears to be worse in the North. In particular we have not been referred to an area within India where there is no risk. We also take into account the Judge’s findings that there are insurmountable obstacles to the Appellant re-establishing herself in India.
128. We therefore substitute a decision to allow the appeal under the Refugee Convention.

Decision

129. Appeal allowed.

Signed:
C J Hanson
Dated:

Upper Tribunal Judge Hanson