TFV NS (Social Group – Women – Forced marriage)
| Jurisdiction | England & Wales |
| Judge | Vice President |
| Judgment Date | 30 December 2004 |
| Neutral Citation | [2004] UKIAT 328 |
| Court | Immigration Appeals Tribunal |
| Date | 30 December 2004 |
[2004] UKIAT 328
IN THE IMMIGRATION APPEAL TRIBUNAL THE IMMIGRATION ACTS
Mr P R Moulden Vice President
Ms C Jarvis Vice President
Mr S S Percy
For the Appellant: Mr S Vokes of Counsel instructed by Tyndallwoods Solicitors.
For the Respondent: Mr J Morris Presenting Officer
NS (Social Group — Women — Forced marriage) Afghanistan CG
The Appellant, a citizen of Afghanistan, appeals to the Immigration Appeal Tribunal (the Tribunal), with permission, against the decision of an Adjudicator, Mrs C J Lloyd, issued on 16 June 2003, dismissing her appeal against the decision of the Respondent made on 1 July 2002, to refuse to recognize the Appellant as a refugee pursuant to paragraph 336 of HC395, and instead to grant exceptional leave to remain in the United Kingdom (UK) until 1 July 2003. As this is an appeal pursuant to Section 69(3) of the Immigration and Asylum Act 1999, (the 1999 Act), it remains a pending appeal, despite the grant of exceptional leave to remain, by virtue of Section 58 (9) of the same Act.
The immigration history of the Appellant is that she claims to have arrived in the UK, travelling clandestinely, by lorry, on 1 May 2002. She claimed asylum on 7 May 2002. She was accompanied by two of her three children; daughter, whose date of birth is given as 24 July 1994, and, also a daughter, whose date of birth is given as 3 January 1996. These two children are the Appellant's dependants in these proceedings and are not Appellants before the Adjudicator or the Tribunal.
As was found by the Adjudicator, the Appellant's third child, a son, became separated from her and her daughters in the course of the journey from Afghanistan to the UK. He is, whose date of birth is given as 10 November 1988. He is therefore fifteen years old now. The Appellant has made enquiries of the Red Cross as to his whereabouts, but with no news as yet.
The Appellant's appeal to the Immigration Adjudicator was by a Notice of Appeal lodged on 28 November 2002. Her Statement of Additional Grounds pleaded that the Respondent erred in that he failed to have regard to the provisions of the European Convention on Human Rights and Fundamental Freedoms of 1950 (ECHR) as incorporated into UK domestic law by the Human Rights Act 1998, and that to return the Appellant to Afghanistan would result in the United Kingdom breaching its obligations under the ECHR, in particular Articles 2, 3, and 5.
The Appellant's case before the Adjudicator was that she had been and would be persecuted in Afghanistan, by members of the Jamiat-e-Islami, who had already killed other members of her family, by reason of a political opinion imputed to her because her family was viewed as Communist.
Further or in the alternative, it was submitted that the Appellant was a member of a particular social group of lone Afghan women who have suffered sexual assault, have female children and are without social or family protection.
The Adjudicator found that the Appellant's account as to past events, including ill-treatment, was credible and that the fears she expressed were genuinely held. The Adjudicator found that the Appellant had been persecuted in the past in Takhar in Afghanistan, and that there was a real risk that she would be so persecuted again on return, at the hands of non-state agents, albeit that those agents were in de facto control of the Province, but that the ill-treatment had not been for one of the five reasons enumerated in the 1951 Convention relating to the Status of Refugees (the Refugee Convention).
The Adjudicator then considered the allegations under Section 65 of the 1999 Act, and found that there was a real risk of a breach of the Appellant's right to freedom from torture, cruel, inhuman and degrading treatment, should she return to her home area of Takhar in Afghanistan. The Adjudicator found that the Appellant could return to live in Kabul without such a breach, although she went on to state that this was a finely balanced issue because of the evidence that lone women may be at risk, as was acknowledged by the Home Office.
At the outset of the hearing before the Tribunal, we drew the attention of the parties to the fact that there had been a grant of exceptional leave to remain to the Appellant until 1 July 2003, (it is not known whether she has applied for any extension of that leave), and that the appeal was pursuant to section 69(3) of the 1999 Act. There being no extant removal directions and therefore no imminent threat of removal to Afghanistan where any alleged breach might occur, it was put to the parties, who agreed, that it was difficult to argue that any allegation of breach of human rights pursuant to Section 65 of the 1999 Act could succeed, (as has been stated, for example, by the Tribunal in RA (Appeals Procedure-Immigration and Asylum Act 1999) Eritrea [2003] UKIAT 00063). The understanding of the parties was that in the event that the Respondent should issue removal directions in respect of the Appellant at some future date, she would have the opportunity to raise human rights allegations at that stage, and, if unsuccessful, to lodge an appeal in that regard.
The Grounds of Appeal first raised points in relation to the Adjudicator's assessment and findings in relation to Article 3 ECHR. It was agreed by the parties that allegations as to breaches of human rights pursuant to the Human Rights Act 1998 are not pursued within the ambit of this appeal, for the reasons, and on the basis set out in paragraph 9 above.
The Grounds of Appeal then went on to submit that the Adjudicator had erred in her assessment of the risk to the Appellant in Kabul, including having failed to consider the full range of factors that would render return unduly harsh, and in particular that she would return as a lone woman with two young daughters, aged 9 and 7 years. Therefore the Adjudicator had not correctly applied the test as laid down by the Court of Appeal in the case of Robinson – v – SSHD [1997] Imm AR 554.
. Thirdly, it was submitted that the Adjudicator had erred in law in finding that the Appellant was not a member of a particular social group, having misinterpreted the Appellant's case when applying the principles laid down by the House of Lords in the case of Islam and Shah [1999] INLR 144.
Permission to appeal was granted generally. The Vice President, His Honour Judge Ainley took the view that the application of the case of Robinson should be considered, and that the matter should be determined at Tribunal level.
We remind ourselves that by the provisions of the Nationality, Immigration and Asylum Act 2002 (Commencement No 4) (Amendment) (No 2) Order 2003, any Adjudicator's determination promulgated after 9 June 2003 may be appealed to the Tribunal only pursuant to Section 101(1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). Section 101(1) provides:
“(1) A party to an appeal to an Adjudicator under Section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the Adjudicator's determination on a point of law.”
Following the judgment of the Court of Appeal in CA [2004] EWCA Civ 1165 20 July 2004, it is clear that when hearing an appeal in respect of a determination of an Adjudicator that was promulgated after 9 June 2003, the Tribunal must first decide whether or not that determination discloses a material error of law. It is only where that question is answered in the affirmative that it is open to the Tribunal to go on to consider what relief, if any, should be granted, and whether or not fresh evidence, if any, should be admitted.
We find that the Adjudicator fell into material errors of law in arriving at her determination. We find that the Adjudicator erred in finding that the only reason for the rape of the Appellant in Takhar was because her assailant found her attractive, and therefore that the attack was a purely personal one, and no more than a common crime, as that finding was not based on the evidence before her and was therefore not open to her. We find that the Adjudicator further erred in law in that she misdirected herself in her consideration of the law in relation to membership of a particular social group, not least because she proceeded on the basis of the findings referred to earlier in this paragraph, which in turn caused her to fail to consider and direct herself according to the law in relation to this aspect of the interpretation of Article 1A (2) of the 1951 Convention relating to the Status of Refugees. In particular, she erred in her application of the principles set out by the House of Lords in Islam and Shah, (above).
Her extremely brief consideration of the question whether the Appellant was a member of a particular social group is dealt with in two sentences at paragraph 46 of her determination. Here the Adjudicator erred in her analysis and conclusion that the Appellant was not a member of a particular social group because she imposed the wrong test, namely that the Appellant had to show that she had only absolutely identical characteristics to all the other women in the group contended for, and that they did not possess any different characteristics, even if they shared common features. As a consequence of these errors, the Adjudicator then made the further erroneous finding that the Appellant's well-founded fear of persecution in Afghanistan was not for one or more of the reasons set out in Article 1A (2) of the Refugee Convention.
Section 102 (2) of the 2002 Act permits the Tribunal to consider evidence about any matter thought relevant to the Adjudicator's decision, including evidence which concerns a matter arising after...
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