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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005781
	First-tier Tribunal No: PA/62619/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 20 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE KAMARA

 

Between

 

PG

(ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Ms F Faran, Middlesex Law Chambers

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

 

Heard at Field House on 17 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

 

Introduction

1.        The Secretary of State has been granted permission to appeal the decision of First-tier Tribunal Judge Malcolm who allowed the appellant's protection appeal following a hearing which took place on 3 October 2024.

 

2.        For ease of reference hereafter the parties will be referred to as they were before the First-tier Tribunal.

 

3.        Permission to appeal was granted by First-tier Tribunal Judge Mulready on 5 December 2024.

Anonymity

4.        An anonymity direction was made previously and is maintained because this appeal concerns a protection claim.

Factual Background

5.        The appellant is a national of Mauritius now aged forty-five. She left Mauritius during 2018 and travelled to the United Kingdom, arriving on 21 March 2018. The appellant applied for asylum on 25 May 2022. The basis of that claim was that she was subjected to violence by her former husband and that she was threatened by her brother because she had converted to Christianity.

 

6.        In a decision letter dated 24 November 2023, the respondent refused the appellant's claim. In doing so, the Secretary of State accepted the appellant's account of events, however it was considered that the appellant could obtain adequate protection and that she could relocate to avoid harm in Mauritius.

The decision of the First-tier Tribunal

7.        Following the hearing before the First-tier Tribunal, the judge allowed the appeal on Humanitarian Protection grounds and suggested that she would also succeed on human rights grounds with reference to there being very significant obstacles to the appellant being able to reintegrate into life in Mauritius.

The appeal to the Upper Tribunal

8.        The sole ground of appeal criticised an inadequacy of reasoning. In relation to the judge's decision to allow the appeal on Humanitarian Protection grounds, the grounds said the following, albeit the many typographical errors in those grounds are corrected.

 

In making that finding the Tribunal has erred in law. The Respondent asserts that there is a functioning police force in Mauritius that the Appellant has failed to approach. The Tribunal has failed to rely upon objective information to show that the police would fail to deal with this matter.

Furthermore the last event that the Appellant claims to fear was in 2017. Therefore there is no evidence to suggest that the risk remains, this is despite the Appellant being in contact with her parents. The Respondent asserts that the Tribunal has failed to look at the circumstances at the date of hearing and in doing so has erred in law.

In addition, the Tribunal appears to consider the reasons for allowing the appeal as asylum reasons yet allows the appeal on Humanitarian protection.

In doing so the Tribunal has erred in law.

 

9.        Permission to appeal was granted on the basis sought, with the judge granting permission making the following remarks.

 

The judge made findings open to them on the evidence as to the risk of the Appellant's brother locating her were she to return to Mauritius. However the Decision did not then go on to consider the availability and sufficiency of protection from that risk, either in her home area, or anywhere else in Mauritius. This is an arguable error of law material to the outcome of the protection appeal, because had the judge gone on to consider those issues, and the objective evidence of the police force, they may have made findings about sufficiency of protection and/or internal relocation, such that the appeal should be dismissed.

 

10.    The appellant filed no Rule 24 response nor skeleton argument in advance of the error of law hearing.

The error of law hearing

11.    The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the Secretary of State containing, inter alia, the core documents in the appeal, including the appellant's and respondent's bundles before the First-tier Tribunal.

 

12.    The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary.

 

13.    At the end of the hearing, the decision was reserved.

Discussion

14.    Ms Faran energetically defended the decision of the First-tier Tribunal however she rightly conceded that the judge made no distinct findings regarding whether the appellant could be reasonably be expected to relocate to avoid those she fears, the availability of sufficiency of protection and why there remained a risk to the appellant some eight years after the events she experienced.

 

15.    While Ms Faran emphasised the judge's positive findings regarding the violence to which the appellant had been subjected at the hands of her brother and former husband, this was never an issue which required adjudication as the respondent had accepted the factual basis of the account.

 

16.    On the issue of current risk, the judge found at [44] that the appellant would be at risk from her brother and at [45] that it was possible that the appellant would be at risk from her former husband. What is lacking are adequate reasons given for arriving at these findings.

 

17.    Putting aside the poor reasoning as to current risk, the judge was required to assess the principal issues of whether the appellant could reasonably be expected to relocate to avoid the two individuals she feared or whether there was a sufficiency of protection in Mauritius. The judge rightly identified those issues, including at [46] of the decision, albeit the judge did not proceed to make any findings on these matters.

 

18.    Ms Faran made much of the appellant's claim that her former husband and brother had contacts in the police force. Yet there is no indication that the judge accepted that account. At [47] the judge merely states that the appellant 'claims' that this is the account and at [51] points to the 'limited evidence' of any such connections which could lead to the appellant being found if she relocated.

 

19.    At [59] the judge made the following finding on internal relocation.

 

It is clear that the appellant is somewhat vulnerable due to her previous experiences and I consider that this vulnerability would also make it difficult for the appellant to establish a life for herself in a different area of Mauritius

 

20.    The difficulty with that findings is that the judge does not spell out what difficulties the appellant would have in establishing herself away from her home area. There is no engagement with the appellant's specific circumstances nor the country background material. Ms Faran invited me to consider the evidence before the judge for myself so as to fill in the gaps in the decision. While this is not the correct approach, a consideration of the material before the judge reveals the existence of legislation to protect victims of domestic violence, shelters, organisations and a family and protection unit which implements government policies as well as addressing gender-based violence. The decision does not engage with any of this material in concluding that it would be 'difficult' for the appellant to relocate or any implication in the decision that there was an insufficiency of protection.

 

21.    While it was not raised in the grounds, it is odd that the appeal was not allowed on protection grounds given that no issue was raised as to the existence of a Refugee Convention reason by the respondent in the decision letter.

 

22.    The judge indicated that the appeal 'would' also succeed on human rights grounds, albeit the appeal was ultimately allowed on humanitarian protection grounds. The reasons were as follows.

 

Before coming to the UK, the appellant had spent her whole life in Mauritius. I accordingly consider it reasonable to assess that she is fully aware of the lifestyle and customs of her home country. On return to Mauritius however the appellant would not have the support of her family and whilst the appellant has previously worked she is vulnerable. She would be returning to Mauritius as a lone woman. She is fearful of being located within Mauritius and accordingly I consider would be fearful of the authorities. I consider that there would be significant difficulties in the appellant re-establishing a life for herself as a lone woman in Mauritius and consider that the difficulties are such that this would meet the test of very significant obstacles to her ability to reintegrate into life in Mauritius if she were required to return

 

23.    That reasoning, in finding that the appellant 'would' meet the very significant obstacles tests under the Immigration Rules is also inadequate and unsupported by any of the country evidence adduced or any detailed reference to the appellant's circumstances.

 

24.    Given the foregoing, it follows that the decision of the First-tier Tribunal contains material errors of law such that the decision is unsafe.

 

25.    I canvassed the views of the parties as to the venue of any remaking and while Ms McKenzie was of the view that the matter ought to be remitted if there were no preserved findings of fact, Ms Faran requested the matter to be retained in the Upper Tribunal. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) , I carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President's Practice Statements.

 

26.    I took into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case meant that the principal issues in dispute were not previously subject to any judicial consideration. I consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and therefore remit the appeal to the First-tier Tribunal.

 

Notice of Decision

 

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

 

The decision of the First-tier Tribunal is set aside.

 

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by any judge except First-tier Tribunal Judge Malcolm

 

 

T Kamara

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 February 2025