Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005396

First-tier Tribunal Nos: PA/56736/2023
LP/02248/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of March 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

PT
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Georget, Counsel, instructed by Perera & Co Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House 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. The appellant appeals with the permission of the Upper Tribunal against the decision of First-tier Tribunal (“the tribunal”) dated 22 August 2024.
Background
2. The appellant is a citizen of Ghana born on 11 March 1979. The appellant arrived in the UK as a visitor on 14 June 2017 and claimed asylum on 14 November 2018. The appellant claimed asylum on the basis of ongoing risk to her from her husband (“Mr A”).
The Respondent’s Decision and Subsequent Review
3. In a decision dated 11 September 2023 the respondent refused the appellant’s protection and human rights claim.
4. In that decision the respondent accepted the appellant’s account that she was married to a Mr A and he “violently and repeatedly raped” the appellant and abused her “as part of a gang” and that she was “the recipient of adverse attention from the Ghanaian gang” Mr A belonged to.
5. However, in the respondent’s review incorrectly dated 18 March 2023 the respondent changed her position. The respondent noted that the appellant had made two visit visa applications to the come to the UK on 13 March 2017 and 17 May 2017. The respondent considered that that the information the appellant provided in the visa application forms contradicted her account to have moved out of her marital home and relocated several times to avoid her husband and that her husband had removed her children. The respondent noted that the appellant had continued to operate her business and concluded that this contradicted her claim that her husband could locate her.
6. The respondent considered that the appellant’s son’s evidence that the appellant did not have a good relationship with her extended family members was undermined by the appellant’s account that when she was discovered to be pregnant by Mr A pressure was brought to him by her family to get married and that her extended family initiated the ritual to end their marriage.
7. The respondent concluded that there were problems with the WhatsApp evidence provided by the appellant of calls between her and her sister because the caller talks about complaining to the police and being accompanied by two policemen to look for Mr A which contradicts the appellant’s claim of inaction by the police. The respondent considered that the WhatsApp evidence paints a picture of Mr A as an ineffectual man who is an alcoholic/drug addict who is afraid of the police. The respondent concluded that nothing in the appellant’s evidence suggests that Ms A is a man of influence.
The appeal before the First tier Tribunal
8. The appellant appealed against the refusal of her protection and human rights claim and the appeal came before the tribunal on 7 June 2024. The appellant was represented by Mr P Georget of Counsel, and the respondent was represented by Mr C Talacchi of Counsel. The tribunal ruled that the appellant should be treated as a vulnerable witness and the appellant gave oral evidence.
9. The tribunal accepted the following aspects of the appellant’s account at [25]-[29]:
a. The appellant was abused by Mr A and became pregnant through that abuse. As a result of the rape the appellant was compelled to marry Mr A, neither of them were happy about the marriage;
b. The appellant suffered violence and sexual abuse at the hands of Mr A;
c. The appellant had two children, one born in 2001 and one born in 2004;
d. The appellant’s family refused to help the appellant on account of the shame a divorce would bring. The appellant also reported the abuse to the police but they refused to intervene as they considered it a family matter;
e. On 3 November 2013 the appellant decided to leave Mr A and paid a member of the police to escort her to the family home to collect her things;
f. During the course of the marriage the appellant was able to open a small clothing business. The business was maintained after November 2013 and the appellant maintained a relationship with her children by visiting them secretly.
10. The tribunal records at [31]-[33] that it is also the appellant’s case that that after she left Mr A continued to threaten and abuse her at her mother’s house and that the appellant tried to relocate on two occasions but Mr A traced her, demanded her return and she returned to her mother’s house. The tribunal also records the appellant’s account that in 2016 her family agreed for her to divorce Mr A, they took Mr A a bottle of Schnapps as is custom but he would not accept it and that the appellant’s son overheard Mr A and his grandmother saying that Mr A would kill the appellant.
11. The tribunal was satisfied that the appellant’s account post-dating November 2013 “is not credible or reliable for the reasons given by the respondent in the review.” The tribunal was not satisfied that the appellant had credibly explained how she managed to successfully run a business and live at her mother’s home without Mr A harming her. The tribunal did not find the WhatsApp evidence “to be reliable evidence for the reasons given in the Review.”
12. The tribunal therefore concludes at [42] that Mr A lost interest in the appellant from November 2013 and that he did not continue to pursue the appellant after that date.
13. The tribunal also considered that “for the reasons given in the RL and the Review” sufficiency of protection and internal relocation are available to the appellant from Mr A at [44].
The appeal to the Upper Tribunal
14. The appellant applied for permission to appeal against that decision on the following grounds.
a. Ground 1: The tribunal failed to consider relevant evidence in finding that Mr A lost interest in the appellant from November 2013. That evidence included medical evidence of admissions to hospital for serious injuries following physical assaults on her by Mr A in both 2015 and 2016. It is submitted that the tribunal makes no reference to that evidence notwithstanding the respondent’s rejection of that evidence in the review.
b. Ground 2: The tribunal failed to give adequate reasons for rejecting the WhatsApp evidence the appellant relied on. The tribunal found the WhatsApp evidence unreliable for the reasons given in the respondent’s review, however it is the appellant’s case that the respondent did not in fact find that evidence unreliable in the review.
c. Ground 3: The tribunal conducted a flawed assessment of sufficiency of protection and internal relocation.
d. Ground 4: The tribunal failed to address whether the appellant was a member of a particular social group.
15. In a decision dated 1 November 2024 the First-tier Tribunal refused permission to appeal, however in a decision dated 20 December 2024 the Upper Tribunal granted permission to appeal.
16. The respondent provided a response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
17. The appellant attended the hearing and I heard submissions from Mr Georget on behalf of the appellant, and Mr Tufan on behalf of the respondent. At the end of the hearing I indicated I was satisfied that the tribunal had materially erred in law in the manner claimed in the grounds and I now give reasons for my decision.
Discussion
18. The appellant relied on medical evidence that corroborated her account to have been physically abused by her husband after the date she left him in November 2013. Mr Tufan accepted that the tribunal did not refer to this medical evidence anywhere in the decision. I am satisfied that this evidence is material to the tribunal’s consideration of whether the appellant’s husband continued to abuse her after November 2013 and that the tribunal materially erred in law by failing to have regard to that evidence.
19. I am also satisfied that the tribunal materially erred by failing to give adequate reasons why it rejected the WhatsApp evidence and found it to be unreliable. It is not the appellant’s position that the tribunal was not entitled to adopt the reasoning in the respondent’s review but that the tribunal’s reasoning did not accurately reflect the reasoning in the review. As outlined above the respondent did not reject the WhatsApp evidence itself to be unreliable. The respondent considered that there were problems with that evidence because the respondent considered that it demonstrated that the appellant had been inconsistent about whether police protection was available and it indicated that Mr A was ineffectual and scared of the police.
20. I am therefore satisfied that the tribunal failed to give adequate reasons for finding that the WhatsApp evidence was unreliable. The appellant cannot know why the tribunal rejected that evidence.
21. I am satisfied that tribunal’s failure to consider the medical evidence and/or provide adequate reasons for rejecting the WhatsApp evidence materially impacted on its consideration of sufficiency of protection and/or whether the applicant could safely or reasonably internal relocate. I am also satisfied that the tribunal failed to consider whether the appellant is a member of a particular social group.
22. At the hearing Mr Georget submitted that the finding that the appellant suffered violence and sexual abuse at the hands of Mr A up to November 2013 should stand. There has been no challenge to that finding and it is not affected by the errors I have identified. I am satisfied that it should be preserved.
23. The parties agreed that this case should be remitted to the First-tier Tribunal and having applied the guidance in paragraph 7 of the Senior President’s Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 00046 (IAC), I am satisfied that it is appropriate to remit the appeal to the First tier Tribunal because substantial findings of fact will need to be made.
Notice of Decision
1. The First-tier Tribunal decision involved the making of an error of law. Accordingly the decision of the First-tier Tribunal dated 22 August 2024 is set aside.
2. The decision will be remitted to the First tier Tribunal to be heard by a different judge.
3. The following finding of act is preserved:
• The appellant suffered violence and sexual abuse at the hands of Mr A up to November 2013.

G. Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 February 2025