MD (Women)

 
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[2010] UKUT 215 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Senior Immigration Judge Goldstein

Senior Immigration Judge Jordan

Mr M G Taylor CBE DL

Between
MD
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr B. Bedford, Counsel instructed by Sultan Lloyd, solicitors

For the Respondent: Ms Z. Kiss, Home Office Presenting Officer

MD (Women) Ivory Coast CG

  • 1. There is a wide variation in attitudes towards women in different parts of the Ivory Coast. In particular there is a strong contrast between traditional rural communities, particularly in the North and Central regions when compared with Abidjan, a relatively cosmopolitan city of mixed ethnicity, along with other urban centres.

  • 2. This variation in attitude impacts on the risk faced by women of FGM, forced marriage, domestic violence, the effects of adultery and discrimination.

  • 3. If in a particular area, a woman faces one or more of those risks, the state is unlikely to offer a sufficiency of protection. In such a case internal relocation may be possible without undue hardship.

  • 4. In the Ivory Coast, women as such do form a particular social group for the purposes of the Refugee Convention. Whether an individual applicant is at risk of persecution by reason of membership of that particular social group will depend on her own particular circumstances including her cultural, social and tribal or regional background.

  • 5. Operational Guidance Notes should not be regarded as country information. They are not produced by the Country of Information Service. They are, in essence, policy statements and as such fall into a different category.

DETERMINATION AND REASONS
Introduction, immigration and procedural history
1

This appeal is the determination of the Tribunal to which each of its members has contributed. Although we heard this matter as members of the Asylum and Immigration Tribunal, this determination is a determination of the Upper Tribunal, Immigration and Asylum Chamber as provided by paragraph 4 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 ( SI 2010/21).

2

The appellant is a citizen of the Ivory Coast who was born on 7 July 1987. She is now 22 years old. She arrived in the United Kingdom on 9 September 2005 and applied for asylum on the same day. She was then aged 18. By a decision made on 1 December 2006, the Secretary of State refused her asylum claim and, on 6 December 2006, made a further decision to give directions for her removal to the Ivory Coast. This gave rise to a right of appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 which the appellant exercised by giving notice of appeal on 28 December 2006.

3

The appeal came before Immigration Judge D Harris on 1 March 2007. He rejected her appeal on asylum and human rights grounds and found that she was not entitled to humanitarian protection. It is the reconsideration of this determination that is the subject of this appeal.

4

The Immigration Judge addressed two specific issues. The first concerned the protection available to women generally. Relying on the decision of the Tribunal in DI (IFA-FGM) Ivory Coast CG [2002] UKIAT 04437, he concluded that there was an element of protection and the authorities would be willing and able to use the law to protect her. He then went on to consider internal relocation and found that it was reasonable for the appellant to relocate in Abidjan or indeed anywhere else away from her home area. He accepted that the appellant would fall within the definition of a particular social group for the purposes of the Refugee Convention.

5

Senior Immigration Judge Nichols found that the determination contained a material error of law. She gave her reasons in these terms:

“I address the two specific issues. Firstly, the position with regard to protection for women generally. DI (IFA-FMG) Ivory Coast CG [2002 UKIAT 04437] is authority for saying that protection is available. However, I do acknowledge that that case is now some five years old and that that authority centred very largely on the issue of FGM. The Human Rights Watch World Report 2007 notes that the law does not prohibit domestic violence and that the courts and police have viewed domestic violence as a family problem unless serious bodily harm was inflicted or the victim lodged a complaint, in which case they could initiate criminal proceedings. However, the report notes that victims were not encouraged to bring proceedings due to the shame that could be brought upon an entire family. Whilst the report notes that the law prohibits rape and provides prison sentences for up to five to ten years, it notes that women's advocacy groups continue to protest the indifference of authorities to female victims of violence. However, the national committee in charge of fighting against violence against women and children under the Ministry of Women, Family and Children's Affairs had set up a hotline for abused women and had helped to provide shelters for victims of abuse and counselled abusive husbands. Consequently whilst I do acknowledge that conditions are far from ideal for women, the objective evidence does show that there is an element of protection. As the Tribunal said in DI ‘The law is there to protect the appellant and we find that the authorities would be willing and able to use the law to protect her.’”

  • 1. This is a reconsideration of a decision of Immigration Judge Harris who on 1 st March 2007 dismissed the appellant's appeal on asylum and human rights grounds against a decision of the respondent on 1 st December 2006 to refuse to grant her asylum and to remove her as an illegal entrant to the Ivory Coast, her country of origin.

  • 2. No challenge is made to the appellant's account and that remains the position. She was forced into marriage with a 70 year old man in her village by her father. She was repeatedly raped by her husband and ill-treated. In December 2004 she began an adulterous affair with a young man called B and in June 2005 fell pregnant by him. She fled her home and eventually ended up in Abidjan with B. In September 2005 fearing that her father and her husband would kill her as a result of what happened, the appellant fled the country and arrived in the United Kingdom.

  • 3. The Immigration Judge accepted that the case had little to do with fear of FGM as sadly the appellant had already undergone that procedure when she was forcibly circumcised after her mother's death in 2003. Nevertheless, he accepted, as the respondent had done that the appellant had fled the Ivory Coast because she feared family retribution as a result of her adultery. The appellant had since given birth to a son.

  • 4. The Immigration Judge was addressed by Counsel for the appellant on the general problems for women in the Ivory Coast however in particular he was referred to the House of Lords decision in Fornah [2006] UKHL 46. It was submitted before him that since the House of Lords had decided in Fornah that Sierra Leonean women suffered persecution as a result of their gender and that the practice of FGM was a component part of that persecution, then the same principle could be applied to women from the Ivory Coast.

  • 5. The Immigration Judge purported to look at the position of women generally in the Ivory Coast at paragraph 19 of the determination as follows:

6

At paragraph 20 the judge found that there were “no reasons to suppose that that scenario does not apply in this case.” Whilst he acknowledged the submission that the reality on the ground was not the same as that painted in the objective material, the Immigration Judge clearly said that he had to follow the objective material and the case law. He then went on to say this:

“In this case the appellant has made no effort whatsoever to seek the protection of the authorities. I may well be told by the appellant and by her Counsel that that is simply because the reality of the position is that such state protection does not exist. That does not sit well with the case law nor, overall, the objective evidence. This appellant has made no effort to pursue the route of state protection at all.”

7

At paragraph 21 the Immigration Judge then went on to look at the question of internal flight and whether that was open to the appellant. He accepted the appellant had been subjected to horrific abuse and said that “due to her personal circumstances [she] would not be in a position to return to her home town of Odienne.” However he was of the view that she could go to Abidjan having been there in the past with her lover B. He found the couple had spent a period of time there and there was no evidence that the appellant could not relocate. There was no evidence her father or husband would pursue her across the country. The Immigration Judge found it would not be unduly harsh for the appellant to relocate and that she would not have any fear of persecution for a Convention reason if she were to return and relocate there.

8

Following this at paragraph 22 the Immigration Judge then considered whether the appellant was a member of a particular social group for the purposes of the Refugee Convention. He stated as follows:

“I have already expressed a view as to the extension that Fornah makes for the criteria for a social group. The question here is ‘Will the appellant be persecuted if she returns?’ I acknowledge that Fornah provides authority for widening the scope of the group that are likely to be persecuted and that in all the circumstances of this instant case, I conclude that the appellant would fall within that social group. However, that alone is not sufficient for the appellant to succeed in her case. In this case, I am perfectly satisfied that this is an appellant for reasons I have given clearly above, would be able to relocate to another...

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