Upper Tribunal (Immigration and asylum chamber), 2024-01-25, UI-2022-006085
| Appeal Number | UI-2022-006085 |
| Hearing Date | 08 January 2024 |
| Date | 25 January 2024 |
| Published date | 09 February 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-006085 [PA/51317/2021]
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2022-006085
First-tier Tribunal No: PA/51317/2021
THE IMMIGRATION ACTS
Decision and Reasons Issued:
On 25th of January 2024
Before
UPPER TRIBUNAL JUDGE LESLEY SMITH
Between
PD (ZIMBABWE)
[ANONYMITY DIRECTION MADE]
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr J Greer, Counsel instructed by Duncan Lewis Solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer
Heard at Field House on Monday 8 January 2024
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant (PD) 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
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By a decision issued on 19 September 2023, the Tribunal (myself and Deputy Upper Tribunal Judge Malik) found an error of law in the decision of First-tier Tribunal Judge Devlin promulgated on 21 November 2022, allowing PD’s appeal from the Secretary of State’s decision to refuse his protection and human right claims. However, we found an error only in relation to one narrow aspect of Judge Devlin’s decision and accordingly set aside only one part of it with directions for re-making on one issue. The error of law decision is appended hereto for ease of reference.
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Before turning to re-make the decision, I confirm what is not in dispute as follows:
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The Appellant is not excluded from the protection of the Refugee Convention by section 72 Nationality, Immigration and Asylum Act 2002. Accordingly, if the Refugee Convention applies to his case, then he is entitled to recognition as a refugee notwithstanding his criminal convictions.
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There is not a sufficiency of protection in Zimbabwe against the risk which the Appellant claims. Accordingly, whether or not the Appellant falls within the ambit of the Refugee Convention, he is entitled not to be removed by reason of Article 3 ECHR, it being accepted that there is a real risk of harm from an individual referred to in these proceedings as JM. I will come to the detail of the risk which is accepted below as it is relevant to the issue which remains. If the Appellant’s case falls within the Refugee Convention, then he is entitled to recognition as a refugee on the accepted finding that there would not be effective protection for him on return to Zimbabwe against the risk he faces. Judge Devlin also found that the Appellant could not reasonably be expected to relocate within Zimbabwe to avoid the risk which he claims from JM. The Respondent did not challenge that finding.
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However, the Appellant has not challenged Judge Devlin’s findings that the Appellant is not at risk on return as a failed asylum seeker nor on account of any political opinion or imputed political opinion. He would not face any real risk from the Zimbabwean State.
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The Appellant has not challenged Judge Devlin’s findings that JM has no involvement in Zimbabwean politics or any connection with the Zimbabwean authorities.
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The Appellant is entitled to humanitarian protection. The Respondent’s challenge to Judge Devlin’s finding in that regard was abandoned at the previous hearing.
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The Appellant cannot be removed to Zimbabwe on account of a prospective and significant deterioration in his health on return (he is HIV positive). Article 3 ECHR has been found to apply in that regard. He cannot therefore be deported to Zimbabwe also for that reason.
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The overall impact of the findings of Judge Devlin which are no longer challenged is that the Appellant cannot and will not be deported to Zimbabwe as a result of this appeal. That is the position whatever the outcome of my consideration of the issue which remains.
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The only issue which remains is whether the risk which the Appellant claims is on account of a Refugee Convention reason. As it is not disputed that the Appellant cannot claim to be at risk on account of any political opinion, actual or imputed, the only reason which remains is that he is a member of a particular social group (“PSG”). The only issue which I have to determine is whether that reason applies to the facts of his case.
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Following the directions given in the error of law decision, I had before me a skeleton argument from Mr Greer dated 5 November 2023 and one from Ms Ahmed dated 1 December 2023. Although Mr Greer informed me that his instructing solicitors had sent him a bundle of authorities, that had not reached the Tribunal file. However, the authorities on which the Appellant places reliance and the material relied upon by the Respondent are clearly set out in the skeleton arguments and I have had regard to the case-law when reaching my decision.
IS THE APPELLANT A MEMBER OF A PARTICULAR SOCIAL GROUP?
Legal Context
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In order to be recognised as a refugee, the Appellant needs to satisfy Article 1(A)(2) of the Refugee Convention which as originally approved reads as follows (so far as relevant):
“A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:
…
(2) …owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”
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The Appellant claims to be a member of a PSG being male victims of traffickers or male victims of JM or as it is now put in Mr Greer’s skeleton argument, former victims of modern-day slavery. None of the other Convention reasons apply in this case.
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Article 6 of European Union Directive 2004/83/EC (“the Qualification Directive”) defines a PSG as follows:
“1. In deciding whether a person is a refugee…
…
(d) a group shall be considered to form a particular social group where, for example:
(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.”
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The Respondent relies on the conjunction between (i) and (ii) based on what he says is the clear wording of Article 6. The Appellant says that the two limbs are disjunctive. He relies on (i) as applying to his case based on what he says is a “common background that cannot be changed”.
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The UK did not adopt the re-cast Qualification Directive (Directive 2011/95/EU) (although little turns on that since the wording is essentially the same). As such, the Qualification Directive remained incorporated in UK legislation via The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (“the QD Regulations”). Paragraph 6(1)(d) of the QD Regulations faithfully reproduces Article 6 of the Qualification Directive as set out above which includes a conjunction between the two sub-paragraphs.
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That the CJEU considers the requirements of a PSG to be conjunctive is confirmed by the Court in Minister voor Immigratie en Asiel v X and Y [2013] EUECJ C-199/12 (“X and Y”) (see [45] of the judgment).
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The judgment in X and Y is not mentioned in either skeleton argument. I referred Mr Greer to it at the outset of his submissions. However, the Appellant’s case is based on this Tribunal’s guidance in DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 00223 (IAC) (“DH”), the headnote to which indicates that “the Geneva Convention relating to the Status of Refugees 1951 provides greater protection than the minimum standards imposed by a literal interpretation of the Qualification Directive and which therefore directs that “Article 10(d) [of the re-cast Qualification Directive] should be interpreted by replacing the word ‘and’ between Article 10(d)(i) and (ii) with the word ‘or’, creating an alternative rather than cumulative test”. Mr Greer’s response to the judgment in X and Y therefore is that this Tribunal should follow the interpretation of the Refugee Convention as set out in DH, irrespective of the wording of either of the Qualification Directives.
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The guidance in DH was followed by a different constitution of the Tribunal in EMAP (Gang violence – Convention Reason) El Salvador CG [2022] UKUT 00335 (IAC) (“EMAP”). The decision in that case was based also on actual or imputed political opinion as a Convention reason but at (iv) of the guidance the Tribunal said this:
“As the law stands at present, so taking the disjunctive approach, those fearing gang violence in El Salvador may be considered to be members of a particular social group where they can demonstrate that they share an innate characteristic,...
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