Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001166
First-tier Tribunal No: PA/52556/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 29th of April 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
DEPUTY UPPER TRIBUNAL JUDGE FARRELY

Between

MJ
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Bradley, solicitor
For the Respondent: Mr A Mullen (Senior Home Office Presenting Officer)

Heard at Edinburgh on 11 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. In a decision and reasons promulgated on 21 March 2023, First-tier Tribunal Judge McLaren (‘the Judge’) dismissed the appellant’s protection and human rights appeal. In a decision and reasons promulgated on 15 November 2024, Upper Tribunal Judge Lane set aside the Judge’s decision, preserving no findings of fact and, by consent, remade the decision on Article 8 human rights grounds, allowing the appeal on that basis. He directed that a further hearing be listed to remake the decision on asylum and Article 3 human rights grounds. This is the decision dealing with those grounds.

2. We have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Ethiopia. In reaching this decision, we are mindful of the fundamental principle of open justice, but we are satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the right of the public to know of his identity.

Background

3. The appellant is a national of Ethiopia whose date of birth is 5 January 1986. She entered the United Kingdom on 10 March 2016 and claimed asylum the next day. That claim was unsuccessful as was her appeal against refusal. Further submissions were made on three occasions, most recently on 17 August 2019. It is the appellant’s appeal against refusal of those most recent submissions which the Judge dismissed, and which, in respect of asylum and Article 3, we must now consider.

4. In respect of the Judge’s decision on asylum and Article 3, the grounds of appeal to this Tribunal asserts in brief as follows. First, the Judge was not entitled to find as damaging to the appellant’s case the lack of contact between her and her ex-husband before his removal from the United Kingdom (paragraph 6 of the grounds). Second, the judge undertook a flawed assessment of the appellant’s ability to relocate internally, specifically failing to consider the availability of shelters, failing to take into account the humanitarian crisis in parts of the country, and taking into account an irrelevant factor – the appellant’s ability to speak English (paragraph 7). The appellant was given permission to appeal against the Judge’s decision on all grounds, albeit that the arguability of paragraph 6 was not expressly dealt with in the grant.

5. Whilst the error of law in the Judge’s decision on international protection is unclear from Judge Lane’s decision, Mr Mullen confirmed today that all grounds of appeal to this Tribunal had been conceded.

6. Before us, it was confirmed that the appellant advanced her internation protection claim solely on the basis of risk from her ex-husband, with no risk being alleged on the grounds of political or perceived political beliefs. Mr Bradley argued that victims of domestic violence constituted a particular social group, that the appellant would have insufficient protection in her home area and that she could not reasonably be expected to relocate internally. Mr Mullen confirmed that each of these matters remained in issue. However, he also confirmed that the respondent accepted that the appellant had been the victim of domestic violence perpetrated by her ex-husband.

Analysis and Conclusions

7. The appellant gave evidence on the basis of the documentation contained within a combined bundle including the materials before the Judge and an updated witness statement dated 28 January 2025.
8. Mr Mullen submitted that the appellant’s case did not engage the Refugee Convention. It was clear from the appellant’s case that her ex-husband no longer had any interest in her. He had not tried to contact her since 2021, not even to make contact with their child. Whether or not there were shortcomings in State protection for domestic violence victims, the protection available in Ethiopia still satisfied the Horvath test. Alternatively, she would be able to relocate internally.

9. Mr Bradley submitted that the ex-husband’s attempt to contact the appellant in 2021 and the continuing contact from his family established an extant real risk to the appellant of serious harm. The background evidence established that victims of domestic violence constituted a particular social group. Furthermore, the evidence (including the country report of Ms O’Reilly) demonstrated that the appellant would have no sufficiency of protection nor any reasonable and safe internal relocation option.

10. Whilst we refer below only to matters sufficient to understand our reasoning, we took all of the evidence to which we were referred, including the appellant’s written and oral evidence on the matters in issue, and all of the parties’ submissions fully into account.

11. The appellant confirmed in cross-examination that she had last seen her ex-husband in 2018 but that the last time he had tried to contact her was by telephone in 2021. She had recognised his number and so had not answered but had reported the matter to the police. She did not suggest that she had since changed her telephone number, nor that she has had any subsequent contact with her ex-husband. The appellant did not know where he ex-husband now was, saying that Ethiopia ‘is a big place with lots of cities and villages’. When asked, she was unable to explain satisfactorily how he would learn of her return to the country. She claimed that a mutual ‘acquaintance’ (Yusuf Kasim) might let slip of her return to others who might tell her ex-husband. Importantly, she did not say that his family would be (or become) aware and would tell him of her return, notwithstanding what she says in her witness statements about his family contacting her.

12. Indeed, what the appellant says about that contact can be found at paragraphs 74 and 78 of her latest witness statement, addressing the given paragraphs of the respondent’s refusal letter (our emphasis):

74. PARA 52. After I reported my husband to the police in March 2018 he came to the school to find me in April 2018. I called the police to report him again. I was taken into the custody of an armed officer who asked me if I had a photo of my husband they could use to identify him. At the time I did not. Fortunately they were able to locate him and they told him that he was no longer allowed to make contact with me. After that, I continued speaking with my family in Ethiopia. I typically contacted my mother through my uncle. My mum doesn’t access to any technology so it is difficult for us to contact to each other without my uncle’s help. My uncle has since moved to the city. I have not been able to speak to my mum for some time. However when we were still in contact I was informed that my husband’s family had spoken to my own. They were not happy about how I reported their son to the police. They were threatening my family. I believe if I returned to Ethiopia they would threaten me directly.

78 PARA 54. I still fear my husband. After I last spoke to him in person in April 2018 his family contacted mine in Ethiopia. They had heard about me reporting my husband in the UK. They spoke to my mother and threatened her. In the UK he does not know my address. If I return to Ethiopia I would be at risk from him as he is aware of my address there. Our marriage to each other was arranged by our families. I did not have a say in the matter. I was forced. I believe if I return to Ethiopia I would be forced to live with him again if he knew I was back in the country. I believe I would be forced back to him under Sharia law. I would be returning to unduly harsh circumstances. I did not learn to read or write in Ethiopia. In UK I have been fortunate enough to attend college. I have never been in employment. I can only speak Oromo language. It would be difficult for me to relocate to another area outside the Oromia region and attempt to establish a life for myself. It would be difficult for me to live a relatively normal life by local standards. The Home Office have suggested that I could relocate internally and seek protection at a shelter. I don’t believe this is possible.

13. The only detail given of any contact between the appellant’s husband’s family and the appellant’s is contact with the mother, and even then the only particularised instance was after they had heard about her reporting her husband to the police in April 2018. None of what the appellant says in her other witness statements takes the matter any further. We are not satisfied even to the lower standard that the appellant’s husband’s family has contacted the appellant save shortly after April 2018, and certainly not after his own last attempted contact in 2021.

14. In short, we are not satisfied that it is even reasonably likely that the appellant’s husband or his family remain interested in her, let alone in harming her. Even if that were the case, we are not satisfied that it is reasonably likely that they would become aware of her return in any event.

15. That being the only basis upon which it was argued before us that the appellant would be at real risk of persecution or serious harm on return to her home area, her appeal fails on the remaining, protection grounds (asylum, humanitarian protection and Article 3 ECHR).

16. Had we accepted that the appellant was at real risk in her home area from her husband and/or his family, we would nevertheless have found that she has the means of contacting her uncle (at the very least, and quite possibly her mother should she ask her uncle to search for her). The appellant’s uncle has moved away from Oromia, and was never contacted by her husband or his family. We have been given no good reason why the appellant could not relocate to where her uncle now lives and, with his support, establish herself in that area. She would not therefore need to use a shelter in the area. Nothing in the background evidence or Ms O’Reilly’s report suggests that this would be unsafe or unreasonable for the appellant.

Notice of Decision

17. Pursuant to Upper Tribunal Judge Lane’s decision, the decision of the First-tier Tribunal involved the making of an error of law, and was remade allowing her appeal on Article 8 grounds.

18. We remake the decision on the appellant’s remaining grounds by dismissing the appellant’s appeal on all such grounds.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 April 2025
ANNEX

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001166
First-tier Tribunal No: PA/52556/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LANE

Between

MJ
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Bradley
For the Respondent: Mrs Arif, Senior Presenting Officer

Heard at Edinburgh on 6 November 2024

DECISION AND REASONS

1. The appellant is a female citizen of Ethiopia. She appealed the First-tier Tribunal against a decision of the Secretary of State dated 13 November 2020 refusing her claim for international protection and in respect of human rights (including Article 8 ECHR). The First-tier Tribunal in a decision dated 21 March 2023 dismissed her appeal. The appellant now appeals to the Upper Tribunal.

2. Granting permission to appeal, Judge Elliott wrote:

3. It is arguable that, although the Judge did not have a copy of the appellant’s child’s passport before her at the time of the hearing (although it is asserted that it was provided prior to the promulgation of the decision) that the Judge erred in failing to take account of the child’s inherent status as a British Citizen by virtue of Section 1(1) of the British Nationality Act 1981, it not having been a matter of dispute that the child’s father was present and settled in the United Kingdom at the time of the child’s birth. The failure to consider the child’s citizenship arguably affects the Judge’s findings in relation to Appendix FM and paragraph EX.1 and her assessment of the child’s best interests.

4. At the initial hearing at Edinburgh on 6 November 2023, Mrs Arif, Senior Presenting Officer for the Secretary of State, told me that the appeal was no longer opposed by the respondent. She accepted that there was evidence that the appellant’s child is a British citizen before the First-tier Tribunal but that the judge had failed to take this fact into account. The First-tier Tribunal’s decision should, therefore, be set aside. Mrs Arif said that, on account of the existence of the British child, the appeal against the Secretary of State’s decision on Article 8 ECHR grounds should be allowed and the decision is respect of Article 8 ECHR remade the accordingly. The Secretary of State continues to oppose the asylum claim and a further hearing should be listed following which the decision in respect of international protection should be remade.

5. After a brief discussion with the advocates, I told them that the decision would be remade following a resumed hearing before me at Edinburgh on the first available date. Both parties may adduce additional evidence provided copies of any documents are filed with the Upper Tribunal and served on the other party no less than 10 days before the resumed hearing. The appellant’s solicitor shall file a composite bundle of documents on the CE file system at least 5 days prior to the resumed hearing. If the appellant will give oral evidence at the resumed hearing and requires an interpreter, the appellant’s solicitor will make the appropriate request to the Upper Tribunal within 14 days from today.

Notice of Decision

The decision of the First-tier Tribunal promulgated on 21 March 2023 is set aside. None of the findings of fact shall stand. The Upper Tribunal remakes the decision on Article 8 ECHR grounds allowing the appeal against the Secretary of State’s decision dated 13 November 2020. The decision in respect of asylum/Article 3 ECHR will be remade in the Upper Tribunal by Upper Tribunal Judge Lane following a resumed hearing de novo on the first available date at Edinburgh. Directions for that hearing appear above at [5].

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 6 November 2024