Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004595
First-tier Tribunal No: PA/51897/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

19th April 2024

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between
AMINATA KAMARA
Appellant
and

Secretary of State for the Home Department
Respondent

For the Appellant: Mr B Shabbir, Advocate, instructed by Mr A J Bradley, Solicitor For the Respondent: Mr M Diwyncz, Senior Home Office Presenting Officer

Heard at Edinburgh on 4 April 2024

DECISION AND REASONS
1. FtT Judge Buchanan dismissed the appellant’s appeal by a decision dated 6 September 2023.
2. The appellant applied for permission to appeal to the UT.
3. These are the grounds: …
Ground 1: Failure to consider whether the appellant “rejected Bondo society” on the basis of undisputed facts
4. First, the learned Judge erred in law by failing to consider whether the appellant has rejected Bondo society or not on the basis of all of the following undisputed facts alone: -
• That the appellant is from Koya Village and a member of the Temne or Timni tribe and that it is plausible that her mother is Sowei. (Reasons for Refusal Letter dated 18 May 2022 at P. 197 at Para 54).
• The appellant was already initiated into Bondo society by way of rites including female genital mutilation.
• The appellant left her tribe and home village permanently in around April 2019, then left Sierra Leone for the UK in February 2020.
• Soweis lead, represent and epitomise Bondo society. As the daughter of a Sowei, the appellant would be expected by members of Bondo society to make herself available to become Sowei.
• As of summer 2023 the appellant has not returned to her tribe, i.e. for more than four years.
5. An individual whose mother is a Sowei but who abruptly removes herself and her own children entirely from Bondo society for more than four years, even without more, has clearly rejected Bondo society. At the lowest, a tribunal requires to assess whether it is sufficient to conclude that the appellant has rejected Bondo society on the basis of the foregoing undisputed facts.
6. The error is material in that, had the said assessment been properly carried out by the tribunal, it would likely have found that, having rejected Bondo society, the appellant is a member of a “particular social group”, as it is again not in dispute that women who have rejected Bondo society do form such a group:
“Sierra Leonean women are today among the most marginalised in the world, socially, economically and politically (Para 9) … Women who are not compliant with or are perceived as rejecting cultural norms for women in Sierra Leone, including rejecting the Bondo society and refusing to be cut are a ‘particular social group’ (Para 18).”
(Country guidance case of GW (FGM and FGMPOs) Sierra Leone CG [2021] UKUT 108 IAC at Paras 9 and 18 on P.132 and 134)
Ground 2: Application of incorrect standard of proof in assessing whether the appellant’s mother is dead
7. Second, the learned Judge has erred in law by applying the incorrect standard of proof in assessing whether the appellant’s mother is dead (notwithstanding that it is asserted in the judgment that the correct standard of proof is applied), given that the following facts were not and cannot be disputed, by way of evidence:
• The appellant was born on 18 March 1977, and thus is now 46 years old.
• The appellant’s mother suffered, at the very least, from a state of ill health.
• Sierra Leone has some of the “poorest health indicators in the world” with a life expectancy at birth of 57.3 (Country Profile – FGM in Sierra Leone by 28TooMany from P.337 at Pp.354 and 382).
8. Thus even if the appellant’s evidence that her mother was “at the point of death” is rejected, and reasonably safely assuming that she was no younger than 57.39 – 46 = 11.39 years old at the time of giving birth to the appellant, then the appellant’s mother will have out-lived the life expectancy at birth of Sierra Leone, and on the broadest balance of probabilities, even if the appellant’s evidence is accorded only minimal weight, taken together the accepted facts must be sufficient to discharge the requisite lower standard of proof that a sick woman such as the appellant’s mother at that age would be dead by summer 2023.
Ground 3: Construing expert opinion with an assumption not founded in evidence or proper reason
9. The third ground relates to an error in law in construing expert opinion in a particular way that is not founded in evidence or proper reason. The expert opinion states in relevant part:
“if the appellant is able to avoid taking on the role [of Sowei], she would nonetheless likely be punished for not taking on the position”
[Expert Report by Sierra Leone expert Karen O’Reilly from P.36 at P.42, Para 5]
10. Para 43 of the Judgment says of the expert opinion:
“it is not explained if this relates to an avoidance during her mother’s illness, or an avoidance at the point of the mother’s death”.
11. The Judgment did not accept that the appellant faced retribution for her avoidance. The learned Judge erred in law by preventing a natural reading of the expert’s opinion by interposing an assumption unfounded by evidence. The assumption is that the expert’s opinion above only applies to a situation where that avoidance is at the point of the mother’s death, and not at other times.
12. Neither the approach of bifurcating the scope of application of the expert’s opinion into two temporal possibilities, nor the conclusions thus drawn upon having taken that approach, are founded in evidence or proper reasoning. In all events, a natural reading of the opinion must encompass that one would be punished for not taking on the position at any such time that they so decline. Any such refusal at any time is a fundamental rejection of Bondo society.
Conclusion
13. It is respectfully submitted that permission for all three grounds be granted so that the Upper Tribunal will consider all grounds of appeal. Should an appeal be successful, the appellant asks that the entire matter be remitted to a freshly constituted First Tier Tribunal.
4. FtT Judge Chowdhury granted permission on 11 October 2023:
2. This appeal concerns a Sierra Leonean national who feared becoming a Soweis (a woman who holds the most senior rank in secret societies who carry out FGM or cutting as an initiation into the group). Ground 1 contends that the Appellant has already been subjected to female genital mutilation and initiated into “Bondo Society”. The Appellant is the daughter of a Sowei and the grounds contend the Appellant would be expected by members of Bondo Society to become a Sowei. It is arguable that the judge had not considered the fact the Appellant had been away from the Bondo Society for four years thereby clearly rejecting Bondo Society. It is arguable that the judge did not properly consider the country guidance case of GW … that women who are not compliant with or are perceived as rejecting cultural norms for women in Sierra Leone, including rejecting the Bondo Society, are a particular social group.
3. It is arguable that the judge had attached disproportionate weight to whether the Appellant’s mother was dead or not. The thrust of the Appellant’s claim appears to be that she had not undertaken the duties of a Sowei.
4. Permission is granted on all grounds.
5. Mr Shabbir (who was not the author of the grounds) dealt firstly with ground 1. He said that while probing into detail on credibility, the Judge overlooked the combination of undisputed circumstances which supported the claim, and omitted to relate the case to the country guidance, which was before him in the bundle and founded upon for the appellant. On ground 3, he argued that the Judge misinterpreted what the expert said at [64 -65] and [92], in particular, of the report, on the consequences of avoiding the role of a sowei, and went down a false trail. It was immaterial whether avoidance or opposition to the role emerged when the appellant’s mother was ill, or if and when her mother died. At [43] of the decision the Judge made an unnecessary distinction between avoiding the role during her mother’s illness or at the point of her mother’s death. Mr Shabbir said that if so, ground 2 would fall away.
6. Mr Diwnycz accepted that on the evidence, including the expert’s report, the precise mode of the appellant’s avoidance of the role of sowei was irrelevant, and the Judge erred by taking account of a false distinction; which was compounded by failing to factor in the country guidance. He observed that although the respondent argued the case on sufficiency of protection and on internal relocation, and the Judge set out those issues at [9], he then at [65], in light of his other findings, declined to resolve those matters, even in the alternative. He acknowledged that the errors were material.
7. Mr Sabbir was correct in not pressing ground 2, which is ingenious, but illustrates no error. The argument was not put to the FtT. The case was hardly to be resolved by the age of the appellant’s mother and average life expectancy in Sierra Leone. However, the case is decided on the grounds 1 and 3.
8. Representatives agreed that the outcome should be as follows. The decision of the FtT is set aside, other than as a record of the hearing. The case is remitted for fresh hearing before another Judge.

Hugh Macleman

Judge of the Upper Tribunal
Immigration and Asylum Chamber
5 April 2024