Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003363

First-tier Tribunal No: PA/00685/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9 September 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

TK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETAR OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person.
For the Respondent: Dr Ibisi, a Senior Home Office Presenting Officer.

Heard at Manchester Civil Justice Centre on 14 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 promulgated on 6 November 2024 it was found a judge of the First-tier Tribunal had materially erred in law, although the facts of the appeal are not disputed.
2. The matter comes back before me today to enable the Upper Tribunal to substitute a decision to either allow or dismiss the appeal.
3. TK appeared in person, as she had previously, was able to fully engage with in the proceedings which were conducted on the basis of submissions only in light of there being no factual dispute.
4. TK is a citizen of Namibia born on 6 October 1992. The Secretary of State refused her application for international protection dated 18 January 2024, but accepted her nationality, her claim that her father wanted her to marry a man of his choice, and that she went against that demand. The Appellant’s case is that she has a subjective fear of being killed or caused serious harm by her father. The man she was supposed to marry is stated to be her father’s cousin who was twice her age and already has two wives.
5. The Appellant had provided in evidence a police statement dated 17 July 2021 recording that the Appellant had made a complaint against her father for beating her.
6. The Secretary of State rejected the Appellant’s claim on the basis it was asserted there was a sufficiency of protection and internal relocation option available to her.
7. The Appellant’s case is that as a result of the influence of her father and the tribe in question there is nowhere within Namibia to which she could internally relocate and that she will not be protected by the state.
8. As the date of the decision under challenge is after the relevant commencement date for the Nationality, Borders and Asylum Act 2022 (‘the 2022 Act’) it is necessary to assess the merits of the claim by reference to these provisions.
9. For a person to be recognised as a refugee they must establish, to the applicable standard of proof, that they face a real risk of persecution for a Convention reason. The Convention reason relied upon by the Appellant in this appeal is that she is a member of a Particular Social Group (PSG).
10. The relevant test is to be found in the 2022 Act set out in section 33, which came into force on 28 June 2022, in the following terms:

33 Article 1(A)(2): reasons for persecution

(1) For the purposes of Article 1(A)(2) of the Refugee Convention—

(a) the concept of race may include consideration of matters such as a person’s colour, descent or membership of a particular ethnic group;
(b) the concept of religion may include consideration of matters such as—
(i) the holding of theistic, non-theistic or atheistic beliefs,
(ii) the participation in formal worship in private or public, either alone or in community with others, or the abstention from such worship,
(iii) other religious acts or expressions of view, or
(iv) forms of personal or communal conduct based on or mandated by any religious belief;
(c) the concept of nationality is not confined to citizenship (or lack of citizenship) but may include consideration of matters such as membership of a group determined by its cultural, ethnic or linguistic identity, common geographical or political origins or its relationship with the population of another State;
(d) the concept of political opinion includes the holding of an opinion, thought or belief on a matter related to a potential actor of persecution and to its policies or methods, whether or not the person holding that opinion, thought or belief has acted upon it.

(2) A group forms a particular social group for the purposes of Article 1(A)(2) of the Refugee Convention only if it meets both of the following conditions.

(3) The first condition is that members of the group share—
(a) an innate characteristic,
(b) a common background that cannot be changed, or
(c) a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it.

(4) The second condition is that the group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society.

(5) A particular social group may include a group based on a common characteristic of sexual orientation, but for these purposes sexual orientation does not include acts that are criminal in any part of the United Kingdom.

11. The approach to assessing such appeals has been confirmed by the upper Tribunal in JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC), the head note of which reads (reflecting the findings within the body of the determination):

1. Sections 31-36 of the Nationality and Borders Act 2022 apply in an appeal where the claim for international protection was made after 28 June 2022.

2. In an appeal to which s32 NABA 2022 applies, the proper approach is to address each of the questions posed by the section expressly and sequentially.

3. Question 1 is whether, on the balance of probabilities, the claimant has a characteristic which could cause them to fear for one of the five reasons set out in the Refugee Convention. In simple terms: is there a Convention reason?

4. Question 2 is whether, on the balance of probabilities, the claimant “does in fact fear” such persecution. This is the ‘subjective fear’ test.

5. Questions 3-5 are matters of objective evaluation and must each be determined on the lower standard of proof: ‘a reasonable degree of likelihood’. Is it reasonably likely that there is:

• a risk of harm
• an absence of state protection, and
• no reasonable internal flight alternative.

12. In relation to whether the Appellant is a member of the PSG reference has been made by Dr Ibisi to the Country Policy and Information Note: Women fearing gender-based violence, Botswana, December 2024, Version 2.0, January 2025 (‘the CPIN’).
13. In relation to the Convention reason issue it is written:

2.1.1 Women do not form a particular social group (PSG) in Botswana within the meaning of the Refugee Convention. This is because while they share an innate characteristic that cannot be changed – being female – they do not have a distinct identity in Botswana.

2.1.2 Women have the same civil, legal and political rights as men, albeit they face some discrimination in customary law, and few are involved in politics. Women also have parity to men education, economic opportunity, and health outcomes. Although patriarchal attitudes persist and there is societal discrimination, this is not to the extent that as a group they are perceived as being different by the surrounding society (see Legal and policy context, Political rights, and Socio-economic position).

14. Insufficient evidence has been provided to warrant a finding that with women in Botswana, per se, qualify as a PSG, nor has anything been specifically provided in relation to the Appellant to show that on the particular facts she can satisfy the relevant legal test.
15. Dr Ibisi also raised in her submission the fact that the treatment the Appellant claims to have a real fear of is not sufficient to satisfy the definition of persecution.
16. Section 31 of the 2022 Act defines persecution in the following terms:

31 Article 1(A)(2): persecution

(1) For the purposes of Article 1(A)(2) of the Refugee Convention, persecution can be committed by any of the following (referred to in this Part as “actors of persecution”)—

(a) the State,

(b) any party or organisation controlling the State or a substantial part of the territory of the State, or

(c) any non-State actor, if it can be demonstrated that the actors mentioned in paragraphs (a) and (b), including any international organisation, are unable or unwilling to provide reasonable protection against persecution.

(2) For the purposes of that Article, the persecution must be—

(a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Human Rights Convention, or

(b) an accumulation of various measures, including a violation of a human right, which is sufficiently severe as to affect an individual in a similar manner as specified in paragraph (a).

(3) The persecution may, for example, take the form of—

(a) an act of physical or mental violence, including an act of sexual violence;

(b) a legal, administrative, police or judicial measure which in itself is discriminatory or which is implemented in a discriminatory manner;

(c) prosecution or punishment which is disproportionate or discriminatory;

(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts as described in Article 1(F) of the Refugee Convention (on which, see section 36).

17. The question is whether ill-treatment is sufficiently serious or persistent to amount to persecution was considered by the Court of Appeal in MI & Anor v Secretary of State for the Home Department [2014] EWCA Civ 826. In giving the lead judgment, with which the other members of the Court agreed, Lady Justice Gloster reviewed the relevant authorities:

55. Before setting out the submissions of the parties, it is useful to set out the well-established principles articulated in this area of the law. Although there is no universally accepted definition of "persecution", the meaning of the word has been addressed in a number of cases, all of which emphasise that "persecution" is a "strong word" (per Lord Bingham in Sepet v SSHD [2003] UKHL 15) and that the ill-treatment complained of must generally involve a reasonable likelihood of serious harm. (The emphasis in the citations is mine.)
56. In Sepet, Lord Bingham described the correct approach to the issue as to whether an appellant was a refugee as follows:

"7. To make good their claim to asylum as refugees it was necessary for the applicants to show, to the standard of reasonable likelihood or real risk, (1) that they feared, if they had remained in or were returned to Turkey, that they would be persecuted (2) for one or more of the Convention reasons, and (3) that such fear was well-founded. Although it is no doubt true, as stated in Sandralingham v Secretary of State for the Home Department; Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97, 109, that the Convention definition raises a single composite question, analysis requires consideration of the constituent elements of the definition. At the heart of the definition lies the concept of persecution. It is when a person, suffering or fearing persecution in country A, flees to country B that it becomes the duty of country B to afford him (by the grant of asylum) the protection denied him by or under the laws of country A. History provides many examples of racial, religious, national, social and political minorities (sometimes even majorities) which have without doubt suffered persecution. But it is a strong word. Its dictionary definitions (save in their emphasis on religious persecution) accord with popular usage: "the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the repression or extirpation of it;" "A particular course or period of systematic infliction of punishment directed against the professors of a (religious) belief …": Oxford English Dictionary, 2nd ed, (1989). Valuable guidance is given by Professor Hathaway (The Law of Refugee Status (1991), p 112) in a passage relied on by Lord Hope of Craighead in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495:

"In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community."

In this passage Professor Hathaway draws attention to a second requirement, no less important than that of showing persecution: the requirement to show, as a condition of entitlement to recognition as a refugee, that the persecution feared will (in reasonable likelihood) be for one or more of the five Convention reasons. As Dawson J pointed out in the High Court of Australia in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 247–248:

"By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees.""

57. As Mr Hansen submitted, the threshold as to what amounts to persecution, is set reasonably high for a reason. In Amare v. SSHD [2005] EWCA Civ 1600, Laws LJ explained the reasons as follows:

"[27] But the alignment of the State obligations imposed by the Refugee Convention with the protection of basic or fundamental human rights is subject to important qualifications. These are well known, and are no less important than the alignment itself. First is the fact that the Convention only requires protection to be afforded in case of particular violations of human rights norms: those arising "for reasons of race, religion, nationality, membership of a particular social group or political opinion". Secondly, the violation, or rather prospective or apprehended violation, must attain a substantial level of seriousness if it is to amount to persecution.

[28] These two limitations or, as I would prefer to call them, conditions of the scope of the Refugee Convention are in no sense ancillary or incidental. They are the very focus and expression of the distinct obligation of international protection accepted by the contracting States. Certainly, there is much learning to show that the Convention is to be treated over time as a living instrument and construed as such (see for example the passage from Schiemann LJ's judgment in Jain which I have cited). But this is no licence for the courts, in the cause of protecting or enlarging human rights, in effect to impose on the State obligations which in truth they have not undertaken.

[31] More generally, I have to say I think that Professor Hathaway's definition of persecution and it is expressly offered as a definition has to be treated with a degree of caution. Its terms are "the sustained or systemic violation of basic human rights demonstrative of a failure of state protection". These words give no very clear place to the requirement of gravity or seriousness, and they contain no recognition of the condition that protection is only to be afforded under the Convention in case of violations arising for the stated reasons."

58. Finally, in HJ (Iran) [2010] UKSC 31, Lord Hope said (after citing the passage quoted above from Lord Bingham's speech in Sepet) at [13]:

"12. The Convention does not define "persecution". But it has been recognised that it is a strong word: Sepet and Bulbul v Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856, para 7, per Lord Bingham. Referring to the dictionary definitions which accord with common usage, Lord Bingham said that it indicates the infliction of death, torture or penalties for adherence to a belief or opinion, with a view to the repression or extirpation of it. Article 9(1)(a) of the EC Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees ("the Qualification Directive") states that acts of persecution must

"(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights … or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)."

In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 40, McHugh and Kirby JJ said:

"Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it."

13. To constitute persecution for the purposes of the Convention the harm must be state sponsored or state condoned. Family or social disapproval in which the state has no part lies outside its protection. As Professor J C Hathaway in The Law of Refugee Status (1991), p 112 has explained, "persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community." The Convention provides surrogate protection, which is activated only upon the failure of state protection. The failure of state protection is central to the whole system: Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495. The question is whether the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals.

14. The reference in the preamble to the Universal Declaration of Human Rights of 1948 shows that counteracting discrimination was a fundamental purpose of the Convention. Article 2 states:

"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Lord Steyn emphasised this point in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 639. He also drew attention to the first preamble to the Declaration, which proclaimed the inherent dignity and the equal and inalienable rights of all members of the human family. No mention is made of sexual orientation in the preamble or any of its articles, nor is sexual orientation mentioned in article 1A(2) of the Convention. But coupled with an increasing recognition of the rights of gay people since the early 1960s has come an appreciation of the fundamental importance of their not being discriminated against in any respect that affects their core identity as homosexuals. They are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.

15. The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention. But the Convention itself has, as the references in para 12 show, a more limited purpose. It is not enough that members of a particular social group are being discriminated against. The contracting states did not undertake to protect them against discrimination judged according to the standards in their own countries. Persecution apart, the Convention was not directed to reforming the level of rights prevailing in the country of origin. Its purpose is to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum-seekers when they are returned all the freedoms that are available in the country where they seek refuge. It does not guarantee universal human rights. So the conditions that prevail in the country in which asylum is sought have no part to play, as matter of legal obligation binding on all states parties to the Convention, in deciding whether the applicant is entitled to seek asylum in that country: Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, paras 16, 46. As Laws LJ said in Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600, [2006] Imm AR 217 para 31:

"The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where pluralist liberal values are less respected, even much less respected, than they are here. It is there to secure international protection to the extent agreed by the contracting states."

16. Thus international protection is available only to those members of the particular social group who can show that they have a well-founded fear of being persecuted for reasons of their membership of it who, owing to that fear, are unwilling to avail themselves of the protection of their home country. Those who satisfy this test cannot be returned to the frontiers of a territory where their life or freedom would be threatened on account of their membership of that group: article 33(1). To be accorded this protection, however, the test that article 1A(2) sets out must first be satisfied. As Lord Bingham of Cornhill said in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5, the words "owing to well-founded fear of being persecuted for reasons of … membership of a particular social group" in the definition of "refugee" express a causative condition which governs all that follows."

59. The principles are well-established. There is thus no need for this court to amplify them in any way.

18. The Appellant was asked at the start of the hearing whether she had filed any further evidence since the error of law hearing which she confirmed she had not. The Appellant was asked in her asylum interview what she thinks would happen to her if she was returned to Namibia to which she replied “If I go back I would have the same life he made me live when I was there, it was very stressful and unhappy life” at question 10. When asked how she knew this would happen on return at question 11 she replied “I know because one of the people that doesn’t stop until it’s done, it’s his way or nothing”.
19. The Appellant claimed that her father approached her in 2015 and started voicing his demands although she has a partner in Namibia with whom she has had two children, but who she claims she is has not been able to marry because of lack of consent from her father.
20. The Appellant states the father’s behaviour made her and the family feel unsafe and that when an unknown person started following her children, she reported the incident to the police and also approached the police many times. The Appellant claims she requested protection from the police and tried to talk to her relatives hoping they would help to settle the argument with her father and relocated temporarily within Namibia from Windhoek to Gobabis and to Rundu.
21. The Appellant’s claim that she did not feel safe in those locations was considered in the refusal letter at [10 (D)] where the claim was not considered to be reasonable as the Appellant had failed to demonstrate objective obstacles to her permanent relocation outside her home city and because it was stated that sufficiency protection will be available to her in the areas of relocation.
22. It is not disputed that individual women, such as the Appellant, may experience discrimination and violence, particularly from intimate partners, in Namibia, but in general a woman is not likely to face gender-based violence from nonstate actors which amount to persecution or serious harm – see CPIN 3.1.1.
23. It is accepted that Namibia is a patriarchal society where patriarchal social-cultural practices persist. There is reference at 3.1.3 the fact that despite the legal protections, policy measures and programmes negative patriarchal socio – cultural practices persist. It is stated the UN Development Programme observed that gender inequalities and discrimination against women are socially accepted norms. It is also reported that the government of Namibia acknowledged that ‘negative socio-cultural practices assert male dominance over women and foster a culture of silence, fear and impunity.’ However, societal attitudes appear sympathetic to protecting women’s rights.
24. I do not find the Appellant has established that the matters of which she fears on return have been shown to be sufficiently serious or persistent sufficient to satisfy the legal definition of an act of persecution.
25. Even if they were, however, it would still be necessary to consider the question of sufficiency protection and internal flight. The issue protection is discussed at section 4 of the CPIN. 4.1.1 she stated a woman is likely to be able to obtain protection. At 4.1.2 that the government has introduced laws and implemented a range of policies, strategies and programs to combat gender-based violence.
26. The Appellant’s case is that as a result of the tribe concerned her family will be able to find her and subject her to ill-treatment. That is a subjective assessment as a result of which the Appellant disagrees with the country information and the assessment contained therein, but there is insufficient evidence to support a finding that the subjective belief is determinative on the facts of this appeal.
27. The Appellant in her submission spoke of her desire to be able to fulfil her potential, to be the best that she can, indicating that she could only do this in the UK. Whilst that may be so they are not factors relevant to considering whether she is entitled to a grant of asylum, Humanitarian Protection or leave on any of the grounds she seeks to rely upon. Whilst the Appellant’s sentiments are understandable and genuinely held, they do not enable her to succeed on the basis of the applications under consideration. I find her claim for international protection is not objectively made out to the required standard. It is not made out there is no effective state protection to the Horvath standard.
28. On that basis I have no option other than to dismiss the appeal. The Appellant has not been able to show that she can satisfy the required tests to the required standard.

Notice of Decision

29. Appeal dismissed

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 February 2025