UI-2023-001616

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The decision




Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: UI-2023-001616
PA/52152/2022


THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Issued
On 25th August 2023
On 22nd September 2023



Before

DEPUTY UPPER TRIBUNAL JUDGE METZER KC

Between

VK
(anonymity direction MADE)
Appellant

And

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms G Patel instructed by Broudie, Jackson, Canter solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer


DECISION AND REASONS
1. The Appellant is a citizen of Namibia. In a decision promulgated on 11th April 2023, First-tier Tribunal Judge A Davies (“the Judge”) allowed the Appellant’s appeal against the Respondent’s decision to refuse the Appellant’s claim on the basis of her sexual orientation as a lesbian on human rights grounds under Article 3 of the European Convention on Human Rights but refused her appeal on asylum grounds on the basis that her claim did not engage the Refugee Convention.

2. The Appellant was granted permission to appeal on 12th May 2023 .

3. At the hearing, Ms Everett on behalf of the Respondent rightly conceded that the Judge had made a material error of law. At the hearing, the Judge noted that the Respondent accepted that the Appellant was a lesbian women and was thereby a member of a particular social group (at paragraph 13); made findings that she would be at risk upon return to her local area 9at paragraphs 29, 33-37) and that it would be unduly harsh for her to relocate (at paragraphs 38-49) thereby establishing a clear causal nexus between the act of persecution and the Appellant’s sexual orientation and yet at paragraph 50 that being a lesbian woman in Namibia does not put her at real risk of  persecution for a Refugee Convention.

4. As conceded by the Respondent, that finding is a material error of law and cannot stand. I consider that the appeal on behalf of the Appellant should therefore be allowed and with the agreement of both parties that the matter should be retained in the Upper Tribunal for me to re-make the decision.

Notice of Decision
5. The Judge erred materially for the reason identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). I retain the appeal in the Upper Tribunal having considered Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and noting that both parties agreed the matter should be retained in the Upper Tribunal and allow the Appellant’s appeal on asylum grounds under the Refugee Convention.



Signed Anthony Metzer KC Date: 25 August 2023


Deputy Upper Tribunal Judge Metzer KC