Upper Tribunal (Immigration and asylum chamber), 2017-07-11, PA/08654/2016
| Jurisdiction | UK Non-devolved |
| Date | 11 July 2017 |
| Published date | 01 September 2017 |
| Hearing Date | 22 June 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/08654/2016 |
Appeal Number: PA/08654/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08654/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 22 June 2017
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On 11 July 2017 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN
Between
SP
(ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr T. Uppal, Solicitor, Glen Solicitors
For the Respondent: Mr S. Kotas, Home Office Presenting Officer
Anonymity
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
DECISION AND REASONS
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The appellant is a citizen of Nepal born on [ ] 1990 who entered the UK on 8 January 2010 as a Tier 4 General Student. On 25 January 2016 she applied for asylum. The application was refused on 22 July 2016. The appellant appealed to the First-tier Tribunal where her appeal was heard by Judge Mitchell. In a decision promulgated on 29 March 2017, following a hearing on 17 March 2017, her appeal was dismissed. She now appeals against that decision.
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The background to this appeal is that on 5 July 2009 the appellant married a national of Nepal and travelled with him, in January 2010, to the UK. The appellant was physically abused by her husband. In May 2015 she left him and contacted the police. He was arrested and pleaded guilty to assault. He left the UK, returning to Nepal, in August 2015.
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The appellant claims that after she left her husband he continued to harass her, and that this continued after he left the UK. She claims that her husband and his family have threatened to harm her and her family in Nepal and that if she is returned to Nepal she will be at real risk of being killed by her husband.
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In a letter setting out the reasons for refusal dated 22 July 2016, the respondent rejected the appellant’s asylum claim on the basis that there is sufficiency of protection in Nepal for victims of domestic violence and/or that she could reasonably relocate within Nepal to avoid any risk from her husband.
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The respondent also considered whether removing the appellant from the UK would be contrary to Article 8 ECHR. It was found that she would not face significant obstacles integrating into Nepal and therefore Paragraph 276ADE(1)(iv) of the Immigration Rules was not satisfied. Nor did the respondent consider there to be exceptional circumstances that would warrant a grant of leave outside the Rules.
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The respondent’s reasons for refusal letter also considered whether removing the appellant would breach Articles 3 or 8 of the ECHR because she had claimed to have attempted suicide. The respondent, applying J v SSHD [2005] EWCA Civ 629, concluded there would not be a breach of either Article 3 or Article 8.
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The appellant lodged an appeal against the respondent’s decision. The grounds of appeal to the First-tier Tribunal submit that the respondent failed to properly consider the risk the appellant would face in Nepal. No argument was advanced in the grounds of appeal to the First-tier Tribunal that removing the appellant from the UK would breach Article 8 ECHR because of family or private life in the UK; or that her removal would breach Article 3 or Article 8 ECHR because of the risk she might commit suicide. Paragraph 9 of the grounds of appeal states: “The appellant intends to particularise each of the above grounds and further grounds at the hearing of this appeal.”
Decision of the First-tier Tribunal
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The judge refused to consider whether removing the appellant from the UK would breach her human rights or place her at risk under Article 15(c) of the Qualification Directive. At paragraph 4 he stated:
“The grounds of appeal that have been produced by the representatives did not make reference to either article 8 ECHR or article 15(c) of the qualification directive, both of which [sic] referred to at some length in the skeleton argument. No appropriate notice had been served. The skeleton argument had only been received by the Tribunal on 15 March 2017. There had not been any application to vary the grounds of the appeal. Ms Hitschmann on behalf of the Secretary of State objected to the inclusion of those two matters in this appeal. I therefore do not consider that either of these matters can be considered in this appeal.”
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The judge did not accept that the appellant and her family in Nepal, are, or have been, subject to ongoing threats from her husband since he left the UK and on this basis rejected her asylum claim. He concluded at paragraph 35 that:
“The appellant has clearly fabricated the claim that her ex husband is continuing to threaten her. She gave evidence that he has remarried or is now living with another woman. He appears to have moved on in his life. They are now leading entirely separate lives. For the reasons set out above I conclude that the appellant has embellished and that her claim that the husband is still interested in threatening or harming her or his family is also interested in threatening or harming her or her family is not credible. I therefore conclude that the appellant has not shown that she has any well founded fear of return to Nepal.”
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Having made this finding, the judge stated, at paragraph 36, that it was not necessary to consider whether the appellant could be a member of a particular social group, the viability of internal relocation in Nepal or whether there is sufficiency of protection.
Grounds of Appeal
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A wide range of arguments are made in the grounds of appeal.
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The first ground of appeal argues that the judge elevated the standard of proof and misapplied the case of Tanveer by focussing disproportionately on the appellant’s evidence regarding her husband’s threats and that the judge adopted a “tenacious and flawed” approach.
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The second ground of appeal argues that the judge erred by failing to consider sufficiency of protection and internal relocation, on the basis that the appellant would still be at risk even if there had been no threats from her husband since he left the UK. The grounds submit that the judge failed to consider the objective country information concerning the risk to single divorced females in Nepal from their former husbands and families.
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Thirdly, the grounds challenges the judge’s evaluation of the evidence that lead him to conclude that the appellant fabricated the account of her husband continuing to threaten her. These aspects of the decision are described as contradictory and problematic.
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Fourthly, the grounds submit that the judge erred by refusing to consider Article 8 ECHR and Article 15(c) of the Qualification Directive. It is argued that the appellant was entitled to raise these claims as the grounds before the First-tier Tribunal stated that “further grounds” would be particularised at the hearing, submissions regarding Article 8 and Article 15(c) were included in the skeleton argument, and the witness evidence dealt with Article 8 issues. The decision to refuse to consider these areas is described in the grounds as a procedural irregularity and contrary to the spirit of the Tribunal Procedure Rules.
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Fifthly, it is argued that the judge erred by stating he was unclear about aspects of the appellant’s account without giving her the opportunity to clarify the points.
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Sixthly, the grounds maintain that the judge erred by taking into consideration 28 “Viber messages” the appellant claimed to have received from her husband that were deleted from her telephone as these were not relied upon by the appellant and only came to light in cross examination.
Adjournment
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Shortly before the hearing, the appellant’s former solicitors ceased acting for her. She applied for an adjournment which was refused. The application to adjourn was renewed before me.
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Mr Uppal, in support of his application to adjourn, stated that he had been given incomplete documentation by the previous solicitors and therefore his preparation for the hearing was incomplete.
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I refused the application but agreed to the appeal being heard last on my list, thereby giving Mr Uppal several hours to prepare. In addition, I asked Mr Uppal to identify any documents he was missing in order that I could provide them...
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