Upper Tribunal (Immigration and asylum chamber), 2014-06-13, AA/09444/2013
| Jurisdiction | UK Non-devolved |
| Date | 13 June 2014 |
| Published date | 09 July 2014 |
| Hearing Date | 09 May 2014 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/09444/2013 |
Appeal Number: AA/09444/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09444/2013
THE IMMIGRATION ACTS
|
Heard at Birmingham, Sheldon Court |
Determination Promulgated |
|
On 9th May 2014 |
On 13th June 2014 |
Before
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
mr m.B.A.
(anonymity direction made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Azmi (Counsel)
For the Respondent: Mr N Smart (HOPO)
DETERMINATION AND REASONS
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This is an appeal against the determination of First-tier Tribunal Judge Birk promulgated on 27th February 2014, following a hearing at Birmingham Sheldon Court on 10th February 2014. In the determination, the judge allowed the appeal of the Appellant. The Secretary of State applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
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The Appellant is a male, a citizen of Nigeria, who was born on 19th April 1980. He arrived in the UK on 1st October 2005 on a student visa. When his application for leave to remain was refused on 28th April 2011 outside the Immigration Rules, he claimed for asylum on 17th August 2011. That claim for asylum was dismissed by the Respondent on 26th September 2013. The Appellant has five dependants, consisting of his partner, and their four children. It is a feature of this case that on 17th April 2013, the Appellant’s partner was accepted by the Respondent as being a victim of sexual exploitation by virtue of human trafficking (paragraph 3).
The Appellant’s Claim
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The Appellant’s claim is that his father is an imam in Nigeria. He has married seven wives. He has many children. Many of his children are not even known to the Appellant. In 2004, the Appellant went to study in the UK. He had a relationship with M A, who was a Christian, and they had two sets of twins. When the father found out he used to support them because he had promised that the Appellant would be married to another woman in Nigeria. The Appellant is from the Yoruba tribe and women from this tribe undergo FGM and his family members have tribal markings (paragraph 6). The Appellant’s claim now is that he fears that his father will beat or kill him on return because of his relationship with a Christian woman and the family will force his daughters to undergo scarring and FGM as well as forced marriage (see paragraph 7).
The Judge’s Findings
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The judge accepted that the Appellant has a sister who has been subjected to tribal markings and FGM. His daughters on return will be expected to undergo the same. There was a risk from the father’s extensive influence (paragraph 26). Accordingly, the Appellant had established a well-founded fear of persecution upon return (paragraph 28). The appeal was allowed on the basis that he was a refugee under the Refugee Convention. Consideration was also given to the Appellant’s Article 8 claims (paragraph 31) and the appeal was allowed on that basis also. The judge in particular pointed out that “due to the findings that I have made with regards to the daughter’s risk of FGM I find that they could not enjoy family life with the serious threat being ever present” (paragraph 36).
Grounds of Application
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The Grounds of Application state that the judge erred in allowing the appeal because the findings at paragraphs 23 to 27 are insufficiently reasoned (together with paragraph 36). No proper weight is accorded to the fact that the Appellant’s evidence was rejected in the refusal letter (at paragraph 23). There were negative credibility findings (at paragraph 22). The judge did not deal with the issue of sufficiency of protection in Nigeria in the proper manner.
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On 10th March 2014 permission to appeal was granted. However, it is significant that it was limited on the basis that “permission to appeal is granted, limited to the issue of risk on return, naturally incorporating sufficiency of protection and internal relocation, and also their implications for the Article 8 proportionality assessment”. Significantly, it was stated that “the judicial findings of fact are sound and are to stand” (paragraph 4).
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The Secretary of State did not appeal the restricted basis of the grant of permission.
Submissions
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At the hearing before me, Mr Smart, appearing on behalf of the Respondent, submitted that on the question of “sufficiency of protection” and “internal relocation” the plain fact was that Nigeria was a “white list country” such that there would be no risk of lack of protection. Mr Smart drew to my attention three cases in particular. First, there was Obasi [2007] EWHC 381 which established that the Nigerian authorities and the police do make efforts to tackle crime even now there is corruption. The judge did not consider this in the instant case. Second, there was Maryam Umar [2008] EWHC 2385 which considered domestic violence, and the Appellant’s contention that the police do not intervene to protect women as they are poorly paid, poorly resourced, and ill-equipped to deal with violent crime, but the court held that this did not support the contention that the police would not intervene. Third, there was BL (Ogboni Cult) Nigeria [2002] UKIAT 01708 which also established that there is no basis for saying that the police or the authorities will not, or cannot, exercise control, or refuse to investigate or deal, with Satanic/ritualistic ceremonies (at paragraph 20). Accordingly, even if the country was known for corruption, this did not mean that this was the same as saying that there was no availability of sufficiency of protection.
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For his part, Mr Azmi relied upon his Rule 24 response of 7th April 2014. He submitted that the judge did not simply look at a single issue, such as police activity or inactivity, but focused firmly on the risk that came from a overbearing and oppressive father, who was an imam. The nub of the judge’s conclusions lay at paragraph 26 of the determination. This consisted of three essential elements. First, the judge referred to the fact that tribal markings and FGM were a feature of the practice of the Yuroba tribe and had been followed by this family. Second, the judge emphasised that “this risk is compounded...
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