FB (Lone women - PSG – internal relocation – AA (Uganda))
| Jurisdiction | England & Wales |
| Judge | SENIOR IMMIGRATION JUDGE |
| Judgment Date | 23 July 2008 |
| Neutral Citation | [2008] UKAIT 90 |
| Court | Asylum and Immigration Tribunal |
| Date | 23 July 2008 |
[2008] UKAIT 90
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Senior Immigration Judge Jordan
Senior Immigration Judge Jarvis
Mr F. T. Jamieson
For the Appellant: Ms K. Cronin, counsel, instructed by Brighton Housing Trust Immigration Legal Service
For the Respondent: Mr P. Deller, Home Office Presenting Officer
FB (Lone women — PSG — internal relocation — AA (Uganda) considered) Sierra Leone
1. Given the pervasive influence of the Bondo societies in Sierra Leone, the inferior position of most women in that country and the relative lack of support provided by the community, a woman who has undergone FGM but who has opposed traditional practices is capable of being a member of a particular social group for the purposes of the Refugee Convention.
2. Although the appellant faces a specific risk in her home area of being forced to be a sowei and of being forced into marriage, in general members of the Bondo societies fall short of adopting a positively hostile or combatant attitude to non-adherents of Bondo principles and avoid targeting them. The treatment faced by the minority is not persecutory.
3. The Court of Appeal's decision in AA (Uganda) v SSHD [2008] EWCA Civ 579 is not authority for a wider proposition that lone women cannot be returned to Uganda or, indeed, any other specific country. Nor is it support for the proposition that it is unduly harsh to expect lone women to relocate to the capital city of their country of origin or any other large urban centre. Rather, it is a re-affirmation, in line with AH (Sudan) that such relocation must be reasonable, in other words, that it must not have such consequences upon the individual as to be unduly harsh for her. If survival comes at a cost of destitution, beggary, crime or prostitution, then that is a price too high.
4. There is a significant migration to Freetown from rural areas. For migrants to Freetown, those with the ability to access support would face no risk. Such support mechanisms might include family or other connections, support mechanisms from other groups, such as the Bondo societies and support from a local mosque or church. There is however no compelling evidence that these support mechanisms are the sole means of eliminating the risk of destitution and its corollary of the risk of beggary, recourse to crime or prostitution.
The appellant is a citizen of Sierra Leone who was born on 3 June 1987. She is 21 years old. She pursues the reconsideration of a determination of an Adjudicator, Mr J.C. Boyd, as he then was, promulgated on 13 December 2004 in which he dismissed the appellant's appeal against the decision of the Secretary of State, refusing her claim on asylum grounds.
The appellant arrived in the United Kingdom on 3 February 2004. She was then just 16 years old. Limited leave to remain was granted until 2 June 2005, the eve of her 18 th birthday. On 12 March 2004 her asylum claim was refused and this gave rise to a right of appeal, the so-called ‘upgrade’ appeal under section 83 of the Nationality, Immigration and Asylum Act 2002 limiting the nature and scope of the reconsideration before us to a consideration of her asylum claim. Accordingly, there is no outstanding appeal under the ECHR, notwithstanding the fact that the appellant's limited leave has now expired. In the context of this appeal the Convention reason advanced by the appellant is that she fears harm by reason of her membership of a particular social group.
The primary facts of this appeal are not in dispute because the Adjudicator found the appellant's claim entirely credible. The appellant lived in Bankala village with her parents and brothers. Her father was a farmer who was killed in 1999 during the civil war. The appellant's mother was a sowei (a leader of the Sande or Bondo women, these being interchangeable terms) in the village and one of the Bondo women who carried out the ritual circumcision of young girls.
When the appellant was aged about 16, she underwent FGM which caused her great pain and distress. She spent about five days recovering in a nearby village during which time she was told that her mother had died. She was also told that she was to replace her mother as sowei. On her return to the village, she voiced her reluctance to the local chief but he insisted that she went through the further rituals to become a sowei, after which he would take her to be his wife. He was a much older man who already had four wives and the appellant did not wish to marry him. She decided to run away from the village, which was about an hour's walk away from Wonkiefor, whence she travelled by truck to a larger town. There she met a man called Mr S, who was a friend of her father's. She used to call him uncle, although they were not apparently related. While she was staying at Mr S's house, a woman from the village of Bankala recognised her and, a week later, a group of Bondo women came to the house, demanding that she return to Bankala. Three days later, Mr S made arrangements for the appellant to leave the area and for her to travel to the United Kingdom. On arrival, she was briefly examined by a doctor and then placed in the care of social workers.
The Secretary of State refused the claim for reasons to be found in his letter of 5 March 2004. He did not accept that her claim that she would be forced into becoming a sowei and would have to marry the chief engaged the Refugee Convention. Having already undergone FGM, the appellant could not be said to form part of a particular social group. He accepted FGM was widely practised among all levels of society and that members of the Bondo society were particularly influential as advocates for FGM. Having identified the appellant's twofold fear of being forced to become a sowei and then into a forced marriage, the Secretary of State considered there were parts of Sierra Leone in which the appellant did not have a well-founded fear of persecution and to which it would be reasonable to expect her to go. The Secretary of State did not accept the appellant's account as to the true circumstances in which she left the country, in particular, the part played by Mr S in financing her departure. Although it clearly has many of the hallmarks of trafficking, this case was not advanced before us and we therefore make no finding on it. Absent a risk of harm, the Secretary of State also dismissed her claims for humanitarian protection and the under the Human Rights Convention.
The Adjudicator, having accepted that the appellant's account was credible, considered the unequal position of women in Sierra Leone. He had before him a report of Dr Fanthorpe who spoke about FGM, the wider society and the role of the local chief, particularly in rural areas. He treated the case as one where the appellant had repudiated tradition by refusing to undertake secret initiation rituals that would result in her being a sowei. As the Tribunal later found, the Adjudicator did not properly engage with the nature of the claim and stated that, because she had already undergone FGM, she was not a member of a particular social group. In particular, he rejected the risk of further genital mutilation, and therefore the risk of further persecution. Whilst he accepted that life could be difficult for women in Sierra Leone, he said that he was not satisfied that it would be unduly harsh for the appellant to relocate within the country.
The grounds of application to the IAT asserted that the Adjudicator had made a series of legal errors. When the application was considered by a Senior Immigration Judge on 15 April 2005, the application was dismissed on the basis that the appellant was not a member of a particular social group but on renewal before Bean J reconsideration was ordered. The single judge, having considered the decision of the House of Lords in Shah and Islam [1999] UKHL 20 and of the Tribunal in RM (Sierra Leone) [2004] UKAIT 00108 considered that the point raised in the application for reconsideration was arguable and warranted further attention by the AIT. In finding that the Immigration Judge made a material error of law, Senior Immigration Judge Nichols gave these reasons:
1. This is a reconsideration pursuant to s.103A of the Nationality, Immigration and Asylum Act 2002. It has been remitted to the Tribunal following an order made by Mr Justice Bean in the High Court on 21 July 2005. He considered that the grounds for reconsideration were arguable.
2. This is case where the Adjudicator as he was found the appellant to be...
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