Upper Tribunal (Immigration and asylum chamber), 2019-10-14, PA/07527/2018
| Jurisdiction | UK Non-devolved |
| Date | 14 October 2019 |
| Published date | 03 January 2020 |
| Hearing Date | 24 September 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/07527/2018 |
Appeal Number: PA/07527/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07527/2018
THE IMMIGRATION ACTS
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Heard at Manchester Civil Justice Centre |
Decision & Reasons Promulgated |
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On 24 September 2019 |
On 14 October 2019 |
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Before
DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE PICKUP
Between
Mr W I
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr F Aziz, Solicitor, Lei Dat & Baig Solicitors (Renshaw House)
For the Respondent: Mr A Tan, Home Office Presenting Officer
DECISION AND REASONS
1. The appellant, a national of Sudan, has permission to challenge the decision of Judge Shergill of the First-tier Tribunal (FtT) sent on 1 August 2018 dismissing his appeal against the decision made by the respondent on 30 May 2018 refusing his protection claim. The respondent had accepted that (1) the appellant is a national of Sudan; (2) is a member of the Tama tribe (and so a non-Arab Darfuri); and (3) that his village had been attacked by the Janjaweed on two occasions, in 2008 and 2014. However, the respondent did not accept that he had a well-founded fear of persecution because he would be able to relocate safely and reasonably to Khartoum.
2. In the respondent’s decision of May 2018 the respondent considered that since the Tribunal had issued its country guidance in 2009 (in AA (Non-Arab Darfuris - relocation) Sudan CG [2009] UKAIT 0005) and 2015 (in MM (Darfuris) Sudan CG [2015] UKUT 00010), there had been a significant change of circumstances such that it was no longer the case that non-Arab Darfuris would face adverse treatment in Khartoum based on ethnicity. In this regard the respondent relied heavily on its CIPIN Sudan: Non-Arab Darfuris, August 2017.
3. When the appellant’ appeal came before Judge Shergill the judge stated that he took no specific issue as to credibility. He nevertheless concluded that during the 2008 and 2014 attacks by the Janjaweed the appellant had not been specifically identified or targeted but “was one of a group subjected to a broad-brush attack, as happened/happens in Darfur” (paragraph 12). To this point, the only issue so far as the judge was concerned was whether or not to follow the country guidance decisions of the Upper Tribunal in MM and AA. The judge recognised that in order to depart from a CG case there had to be “very strong grounds supported by cogent evidence” (citing SG (Iraq) [2012] EWCA Civ 940). Having considered other leading cases dealing with the issue of when it was appropriate or not to depart from country guidance (the judge cited TM (Zimbabwe) [2010] EWCA Civ 916, SA (Sri Lanka) [2014] EWCA Civ 683, DSG & Others (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 000148 (IAC) and FA (Libya: art 15(c)) Libya CG [2016] UKUT 413), the judge concluded that there was cogent evidence for so departing. His reasons averred that: these case are quite dated and based “in essence on the respondent’s OGN from 2009”; unlike the situation when MM was decided, there was now new country information being relied on in the CIPIN Sudan, Non-Arab Darfuris, Version 1.0, August 2017; the appellant had not sought to rebut the respondent’s evidence with an expert report; the appellant’s background evidence was of limited value (we shall return to this matter below); and the CIPIN Report of 2017 was based on three different sets of sources – the Joint Report of the Danish Immigration Service and UK Home Office Fact-Finding Missions to Khartoum, Kampala and Nairobi conducted February - March 2016, an Australian Report, 2016 (DFAT) and a British Embassy letter; and that there were no obvious concerns about bias or methodological flaws in the CIPIN Report. At paragraphs 36 – 38 the judge concluded:
“36. The appellant has no political profile and was not ’targeted’ personally, he was not recognised or identifiable given it was dark and it is implausible to the lower standard given the nature of the 2016 attack that the Janjaweed could have seen him sufficiently well to be able to identify him then or in the future. He cannot properly be said to have had ’prior adverse attention’. The only relevance of political perception in his case is only because there are suggestions that being Darfurian per se indicated you were opposed to the regime. However, physical characteristics were seemingly less significant given the exposition in IM [IM and AI (Risks-membership of Beja Tribe, Beja Congress and JFM): Sudan (CG) [2016] UKUT 188 (IAC)] at paragraphs 177 to 222. I have reviewed the key risk themes in the DFAT Report and the conclusions are broadly consistent with the matters set out in the Joint Report. I note what was said at:
’3.41 Overall, DFAT assesses that low-profile members of the unarmed opposition are at a low risk of official discrimination and violence. Supporters of the unarmed opposition who present a direct threat to the Government’s authority by speaking openly about political transition or overthrowing Bashir and the NCP face a moderate risk of discrimination and low risk of violence.
…
4.13 DFAT assesses that those who are perceived to directly threaten the authority of the Government may face risk of torture. This is likely to affect those who are outspoken. DFAT is also aware of some examples of civilians who are not outspoken being exposed to torture. DFAT is unable to prescribe a particular risk to an individual’s potential to experience torture or comment on the general incidence of torture.
…
4.16 Overall, DFAT assesses that arbitrary arrest and detention are commonly used by the Government, particularly against individuals that are or are perceived to be outspokenly critical of the Government…’
37. Looking at all of this evidence in the round, it is abundantly clear that the situation in Khartoum has markedly changed from that set out in the 2009 OGN which underpinned AA. Whilst there may have been some updated evidence before the tribunal in MM, clearly that 2009 OGN was a key constituent in the decision making. The tribunal in IM did not expressly deal with the situation for non-Arab Darfuris so the situation has not been recently visited with up-to-date evidence. I have no concerns about the methodology used in the two reports that underpin the 2017 CPIN. The tribunal has held that diplomatic evidence in that case was reliable; and I see no basis for the assertions that somehow it is tainted or unreliable. There is a very clear theme emerging from the three sources of evidence synthesised in the CPIN that there are many tens if not hundreds of thousands of Darfuri people in Khartoum; a city which is stable. There may be a risk to non-Arab Darfuri people but that is not in a generalised way as the country guidance had previously endorsed. I consider that the evidence relied on by the respondent in the CPIN, as underpinned by the three sources of evidence does show ’very strong grounds supported by cogent evidence’ that the country guidance in AA and MM can be departed from.
38. The appellant has not provided satisfactory evidence to dissuade me to depart and I was not persuaded by the submissions either. I remained of the view that the CPIN evidence was very strong evidence which was cogent; and sufficient to depart from country guidance as it relates to relocation to Khartoum of non-Arab Darfuris with no political profile/no prior adverse attention (in this case not being individually targeted or identified/identifiable) as I have found in this appellant’s case.”
4. The judge then turned to consider the appellant’s individual circumstances, including that he would not be at risk on return and that he would be able to relocate to Khartoum safely and reasonably, stating at paragraph 42 that:
“42. The appellant is a fit and able young man who has managed to exchange work for practical help in the past and been assisted by his countrymen when fleeing. He is from what he confirmed was a large tribe. I see no reason he cannot use these networking skills he has gained to carve out a new life for himself. He has clearly demonstrated the basic interpersonal and practical skills needed to do so in comparable situations when he fled Sudan. I am satisfied he can at least undertake unskilled work. Any resettlement grants would ameliorate his transition to life back in his homeland. The informal economy employs significant numbers in Khartoum; indeed, there has been a pull factor to Khartoum because of the improving economic conditions (Joint Report at 4.6). It is difficult to conclude that in such a populous city, amongst so many of his own people, the appellant going about his ordinary business will have a risk profile that would put him at a real risk of harm. Whilst the appellant has never lived in Khartoum, I note he is still in touch with his family in Darfur. I see no reason he could not use any tribal connections he has through his family to locate persons who might be able to ease his integration in the short term in Khartoum. In the worst-case scenario of his being a lone man with no support, it is hard to consider...
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