United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003485
	First-tier Tribunal No: PA/55026/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE NEVILLE

 

Between

 

I M

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr D Coleman, counsel instructed by TMF Immigration Lawyers

For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

 

Heard at Field House on 28 October 2024

 

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 or any other person referred to in these reasons by an initial. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

 

1.             The appellant is a national of Namibia, who arrived in the United Kingdom on 15 August 2018 and claimed asylum on the same day. Her account in support can be summarised as follows:

a.       The appellant already had three children, one from being raped by a relative and two from men who died soon afterwards, when her family arranged for to marry another man. I shall refer to him as N. He eventually decided to marry someone else, but not before the appellant became pregnant with his child.

b.       Some years later, N decided that he did want a relationship with the appellant. In the face of her refusals, he beat and raped her on several occasions. She did not seek the help of the authorities because N said that if she did, he would kill her and her son.

c.        The last attack was so severe that the appellant was hospitalised, and had no choice other than to report the matter to the police in order to obtain treatment. The police did nothing except issue the appellant with a crime reference number. Her parents and the village elders decided that the situation was best resolved by the appellant accepting N's demands that she be in a relationship with him.

d.      The appellant left her children with a friend, D, and fled the country. She fears that on return to Namibia, without any support network or prospect of effective state protection, she would be at risk of further violence from N.

2.             Almost five years later, on 12 July 2023, the respondent refused the claim. It was rejected that women in Namibia form a 'particular social group' such as to engage the Refugee Convention. The respondent accepted the appellant's account of being repeatedly attacked and raped by N, but gave several reasons for doubting her wider credibility. The claim to have no support network on return was rejected; noting that the appellant had been able to leave her children with D, and had obtained documents from her since arriving in the UK, the respondent decided that she could likewise seek support from D on return. It was rejected that N or the appellant's family had the means or power to pursue her elsewhere in Namibia, and country evidence showed that the authorities were generally willing and able to provide effective protection. The appellant, concluded the respondent, would have sufficient assistance to relocate to Windhoek (or a similar large city) and live in safety. The protection claim was therefore refused, as was any claim that return to Namibia would be contrary to the appellant's human rights.

3.             The appellant's appeal against the refusal decision was dismissed by a First-tier Tribunal Judge ("the Judge") on 4 June 2024, for broadly the same reasons as put forward by the respondent.

4.             The grounds of appeal against the Judge's decision can be fairly summarised as follows:

a.       Ground 1 - In deciding that women in Namibia are not a particular social group (for the purposes of the Refugee Convention), the Judge failed to consider several material pieces of country evidence.

b.       Ground 2 - In rejecting the credibility of the appellant's evidence, the Judge placed impermissible weight on what he considered plausible.

c.        Ground 3 - The Judge either failed to consider several discrete pieces of evidence that supported the appellant's account, or failed to give adequate reasons why it should nonetheless be rejected.

d.      Ground 4 - The Judge's assessment of a letter from D, concerning support on return, was misconceived.

e.       Ground 5 - The above errors, if established, vitiated the Judge's assessment of whether return would be contrary to Article 8 ECHR.

5.             Permission was granted on all grounds by Upper Tribunal Judge Loughran. At the hearing of the appeal, I heard helpful submissions from each representative. I shall only set them out where necessary to explain my conclusions.

Consideration

Grounds 3 and 4 - Failure to consider relevant evidence

6.             Rather than consider the grounds in order, it is convenient to turn first to those that assert a failure to take into account relevant evidence. These grounds are targeted at two material findings of fact made by the Judge: first, that N no longer has any ongoing interest in the appellant such that might put her at risk; and second, that the appellant could obtain support from her friend D on return.

7.             The first piece of evidence said to have been neglected is a copy of a police report from N, where he complains that the appellant had disappeared despite him having 'paid' for her. In the report, he finishes by saying:

"... I am expecting my wife to be reappeared so that we continue with our marriage that failure by my wife to reappear I will instead will call for her substitution with her daughter ... "

8.             The appellant's daughter is then named. A statement had been provided from the appellant's daughter, still living with D, where she describes having heard from a friend in her home village that her substitution is still being actively proposed.

9.             Second, a letter was provided from the traditional authorities in the appellant's home area. It records that the appellant had reported "a matter of forced marriage" and that, following a hearing:

"... the following resolutions were adopted:

1. That [the appellant] respect and adhere to the wishes and demands of the elders.

2. That the elders should continue with the customary arrangement.

3. That polygamy is normal marriage and is normal practice and norms."

10.         Third, in rejecting that the appellant could not rely on D for support, the Judge had expressly relied on the fact that she "has not stated in any of her two letters that she would be unwilling to support the Appellant and therefore I find that this is indicative of the fact that if the Appellant were to return, she would support her". In fact, one of those two letters contained the following:

I am aware that the refusal decision states that I can provide support, I cannot give [the appellant] any form of support as if she is seen by [N] then we will all be at risk for our safety. I am supporting the children with great difficulty with challenges faced..."

Consideration

11.         As held in Volpi v Volpi [2022] EWCA Civ 464, at [2]:

i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

12.         Particular caution must be exercised when dealing with individual pieces of evidence: "the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping".

13.         The relevant findings by the Judge were treated by him as material to the assessment of whether the appellant faced an ongoing risk of violence from N, whether she could seek protection from the police, and whether she could avoid any risk by relocating away from her home area. Ms Rushforth argued that the appellant's circumstances would be unlikely to put her at risk in any event, given the passage of time since the appellant left Namibia and the evidence on sufficiency of protection in the CPIN. That is not the way the Judge approached the appeal; nor has the respondent provided a rule 24 response arguing that his decision should be upheld for reasons other than the ones he gave.

14.         At [28] onwards, the Judge goes into significant detail as to how he finds aspects of D's letters and the police evidence she obtained on the appellant's behalf 'odd', and further 'odd' that the police would stamp or provide copies of letters that were critical of their efficacy. It is this characterisation of the evidence by the Judge that underlies Ground 2, which seeks to argue an impermissible reliance on plausibility as an indicator of credibility. Whatever the merits of that discrete argument, I do accept that this perceived implausibility weighed significantly in the Judge's assessment. Even if they could properly be relied upon in damaging credibility, on any rational view they must carry much less significance in the appellant's evidence than the three pieces of evidence omitted from consideration. Simply put, the three pieces of evidence go directly to the facts found by the Judge, are self-evidently of great significance in the appellant's evidence as a whole, and a Judge rejecting that evidential case was required to describe (even if briefly) what difference they had made. Especially with regard to the evidence of D concerning support, I am compelled to conclude that either the Judge overlooked this evidence or, by not giving it explicit consideration, gave insufficient reasons for the appellant to understand why she lost the appeal.

15.         For that reasons, the Judge's relevant findings are unsafe and must be set aside.

Ground 1 - Particular social group

16.         It was argued on behalf of the respondent that this finding should be preserved.

17.         In DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC) at [57], it was confirmed that the working definition of the term 'particular social group' is as follows:

a group shall be considered to form a particular social group where in particular:

(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and

(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society

18.         As the present protection claim was made before 28 June 2022, the more restrictive definition in the Nationality and Borders Act 2022 does not apply. Unless a particular social group has already been found to exist in binding authority, a case-by-case approach must be taken.

19.         The Judge's treatment of the issue was as follows:

26. I start by addressing the issue of whether the Appellant's case engages the Refugee Convention, in particular the convention reason of whether the Appellant is a member of a Particular Social Group. Having considered the points made by both representatives as part of their submissions, I find that I am in agreement with the Respondent on this issue and I find that the Appellant's case does not engage the Refugee Convention because I find that by virtue of being a woman in Namibia is not in itself sufficient to fall within the category of being a member of a particular social group as they do not have a distinct identity. I further find that whilst there is evidence confirming that women do face issues of domestic violence, they do nevertheless have equality in law both in practice and its application and that is evident from the fact that the Appellant's friend was able to report a matter to the police and provide a letter to the Appellant as evidence in support of her appeal. I therefore do not accept that the Appellant's case engages the Refugee Convention under the category of particular social group.

20.         This echoes the conclusion in the refusal decision, as well as para 2.3.1 of the Country Policy & Information Note Namibia: Women fearing gender-based violence of September 2021:

2.3.1 Women are not considered to form a particular social group (PSG) in Namibia within the meaning of the Refugee Convention. This is because while they do share an innate characteristic that cannot be changed - being female - they do not have a distinct identity in Namibia due to their equality in law and its application in practice, and the sufficiency of state protection. In general, society does not discriminate against women, meaning the group is not perceived as being different by the surrounding society.

21.         That summary, the appellant had argued, was undermined by the various government initiatives recently taken in order to combat what must be ongoing gender-based violence and shortcomings in the authorities' response to it. Considering the Appeal Skeleton Argument and the grounds of appeal, I accept that the Judge was put on notice that the remainder of the CPIN's contents was deployed in arguing that women in Namibia form a PSG. This includes government acknowledgement that gender-based violence remains a serious concern, that in some areas attitudes still support women occupying an inferior social position, 'victim-shaming', such as blaming victims of sexual violence for their experiences, and 28% of women and 22% of men in Namibia believing that a husband is justified in beating his wife.

22.         The Judge's conclusion on this issue should be treated as a finding of fact, with which I cannot interfere unless satisfied that it is plainly wrong. I am also mindful that the Judge was under no obligation to identify all of the evidence relied upon in reaching his findings, to elaborate at length his conclusions on the law, or to express every step of his reasoning.

23.         Even exercising the necessary appellate restraint, I am again persuaded that an error of law is established. The case squarely put before the Judge was that other evidence of the treatment of women, and of how society responds to it, undermined the assertion at para 2.3.1 of the CPIN. He was therefore required to explain, however concisely, why it did not do so. The categorisation of that evidence as being that 'women do experience domestic violence' would hold true in any country, and is insufficient to answer the appellant's argument that its severity in Namibia, and that society's attitude and response to it, establishes women as forming a PSG. The observation that D was able to obtain confirmation from the police that a crime had been reported ignores that (on the appellant's account) they did nothing whatsoever in response. Criminalisation is relevant to the issue, but not conclusive. The Judge's decision on this issue cannot stand.

Disposal

24.         I need not consider the other grounds. Ms Rushforth sought to persuade me that any errors of law were immaterial due to the availability of sufficiency of protection, but that conclusion is bound up in the Judge's other findings. I cannot say that a negative outcome for the appellant was inevitable.

25.         The decision is therefore set aside in its entirety, and a fresh decision will be required on all issues. Given the extent of the necessary fact-finding, the proper course is to remit the appeal for re-hearing by the First-tier Tribunal.

Notice of Decision

 

(i)                  The decision of the First-tier Tribunal involved the making of an error of law and is set aside.

(ii)               The case is remitted to the First-tier Tribunal for re-hearing with no facts preserved.

 

J Neville

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 February 2025