Upper Tribunal (Immigration and asylum chamber), 2024-03-13, UI-2023-004804
| Appeal Number | UI-2023-004804 |
| Hearing Date | 22 January 2024 |
| Date | 13 March 2024 |
| Published date | 28 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2023-004804
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-004804 First – Tier No: PA/00373/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 13th March 2024
Before
UPPER TRIBUNAL JUDGE BRUCE
Between
JCK (Botswana)
(Anonymity order made)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Ms G. Patel, Counsel instructed by Saxon Solicitors Ltd
For the Respondent: Mr A. Tan, Senior Home Office Presenting Officer
Heard at Manchester Civil Justice Centre on 22 January 2024
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 him. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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The Appellant is a national of Botswana born in 1989. He appeals with permission against the decision of the First-tier Tribunal (Judge Brooks) dated the 30th August 2023 to dismiss his appeal on protection and human rights grounds.
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The Appellant claimed asylum on the 3rd August 2022. His case was that he is at risk of persecution in Botswana by fellow members of the Herero tribe. He claims that this persecution will be for reasons of his religious belief (the Appellant is a ‘born-again’ Christian) and for his imputed political opinion/race (his rejection of tribal custom in refusing to take the leadership position he was expected to inherit from his deceased father).
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Protection was refused by way of a letter dated the 10th February 2023. This being a claim made after the 28th June 2022, it was one to which sections 31-39 of the Nationality and Borders Act 2022 (NABA 2022) applied. The letter therefore addressed the Appellant’s claim in stages, corresponding to sections 33, then 31, then 32 of the Act. The Respondent accepted that the Appellant is a ‘born-again’ Christian, and that he is a member of the Herero tribe, but rejected the contention that he would be at risk for any of the reasons claimed; the Respondent concluded that if he were, the Botswanan government could provide sufficient protection from hostile members of the Herero tribe, and/or the Appellant could relocate within Botswana.
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The Appellant appealed to the First-tier Tribunal which dismissed his appeal, finding that he had not shown, on balance, that he had any characteristics which could cause him to fear persecution, that he did in fact fear such persecution, or that on the lower standard of proof he objectively faced a real risk of harm in Botswana.
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The Appellant now appeals inter alia on the grounds that the Tribunal erred in its approach to varying standards of proof in a NABA 2022 appeal. I am grateful to the parties for their submissions on this point, and it is here that I begin.
Section 32 NABA 2022
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The standard of proof to be applied in protection claims has, for some thirty-five years, been whether there is a “real and substantial risk” of persecution should the claimant be removed to his or her country of nationality/former habitual residence1. Otherwise expressed as a “reasonable degree of likelihood”, or a “reasonable chance” this is a lesser standard than the balance of probabilities otherwise applicable in civil law. The rationale for the application of this lower standard was twofold: the difficulty that the putative refugee faces in proving his claim, and the potentially grave consequences of getting it wrong. Judges and decision-makers in this jurisdiction have become accustomed to applying this standard, but now we must get used to a new paradigm.
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For any protection claim made on or after the 28th June 2022, judges and other decision makers must now comply with the part of NABA 2022 dealing with the ‘Interpretation of the Refugee Convention’. Section 30 provides that sections 31-35 of the Act shall apply for the purpose of determining whether a person is a refugee. Section 31 defines persecution, covering actors and acts. Section 33 is concerned with defining the reasons for persecution; section 34 with whether the home state can be considered to provide sufficient protection, and section 35 addresses internal flight. Here we are concerned with section 32, which sets out the approach to be taken when analysing whether the claimant’s fear is ‘well-founded’. It reads:
(1) In deciding for the purposes of Article 1(A)(2) of the Refugee Convention whether an asylum seeker’s fear of persecution is well-founded, the following approach is to be taken.
(2) The decision-maker must first determine, on the balance of probabilities—
(a) whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the asylum seeker does in fact fear such persecution in their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) as a result of that characteristic.
(See also section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (asylum claims etc: behaviour damaging to claimant’s credibility).)
(3) Subsection (4) applies if the decision-maker finds that—
(a) the asylum seeker has a characteristic mentioned in subsection (2)(a) (or has such a characteristic attributed to them), and
(b) the asylum seeker fears persecution as mentioned in subsection (2)(b).
(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and
(b) they would not be protected as mentioned in section 34.
(5) The determination under subsection (4) must also include a consideration of the matter mentioned in section 35 (internal relocation).
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The Explanatory Notes to NABA 2022 assert [at page 348] that this “provision establishes a clear two-limb test for assessing whether an asylum seeker has a well-founded fear of persecution and will raise the standard of proof which an asylum seeker must satisfy for certain elements of the test”. The two limbs are of course delineated by the two standards of proof that must be applied at different stages in the process.
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The exercise begins at section 32(2) which mandates the decision maker to determine, on the balance of probabilities, whether the asylum seeker “has a characteristic which could cause them to fear persecution” for one of the five reasons set out in Article 1(A)(2) of the Refugee Convention. Next, applying the same standard, consideration must be given to whether the claimant “does in fact fear” such persecution. On a plain reading of the text, the decision maker is therefore to apply the civil standard of proof to whether there is a ‘Convention ground’, and to whether the claimant has a genuinely held subjective fear.
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Moving on to the second limb, sub-sections (3) and (4) together provide that where those questions are answered in the affirmative, the decision maker must then go on to conduct the future-focused risk assessment by applying the familiar ‘refugee standard’ of reasonable likelihood, looking first at persecution and then at the availability of protection. Finally, consideration must be given to internal relocation.
There are therefore in fact five questions hanging over the two limbs....
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