Upper Tribunal (Immigration and asylum chamber), 2020-06-05, [2020] UKUT 223 (IAC) (DH (Particular Social Group: Mental Health))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Hanson |
| Status | Reported |
| Date | 05 June 2020 |
| Published date | 21 July 2020 |
| Hearing Date | 29 May 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Particular Social Group: Mental Health |
| Appeal Number | [2020] UKUT 223 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 00223 (IAC)
THE IMMIGRATION ACTS
|
Hearing on |
Decision promulgated |
|
on 29 May 2020 |
|
Before
UPPER TRIBUNAL JUDGE HANSON
Between
DH
(BY HIS LITIGATION FRIEND SALLY PRESTT)
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Bandegani instructed by Duncan Lewis Solicitors
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer.
1. The Geneva Convention relating to the Status of Refugees 1951 provides greater protection than the minimum standards imposed by a literal interpretation) of Article 10(1)(d) of the Qualification Directive (Particular Social Group). Article 10 (d) should be interpreted by replacing the word “and” between Article 10(1)(d)(i) and (ii) with the word “or”, creating an alternative rather than cumulative test.
2. Depending on the facts, a ‘person living with disability or mental ill health’ may qualify as a member of a Particular Social Group (“PSG”) either as (i) sharing an innate characteristic or a common background that cannot be changed, or (ii) because they may be perceived as being different by the surrounding society and thus have a distinct identity in their country of origin.
3. A person unable to secure a firm diagnosis of the nature of their mental health issues is not denied the right to international protection just because a label cannot be given to his or her condition, especially in a case where there is a satisfactory explanation for why this is so (e.g. the symptoms are too severe for accurate diagnosis).
4. The assessment of whether a person living with disability or mental illness constitutes a member of a PSG is fact specific to be decided at the date of decision or hearing. The key issue is how an individual is viewed in the eyes of a potential persecutor making it possible that those suffering no, or a lesser degree of, disability or illness may also qualify as a PSG.
5. SB (PSG – Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 0002 and AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) not followed.
DECISION AND REASONS
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The appellant is a citizen of Afghanistan born on 23 January 1993. He appealed the decision of the Secretary of State dated 30 August 2017 to refuse his human rights claim, and a further decision of 26 February 2018 refusing his protection claim and a further human rights claim.
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On 8 November 2017 at Central London Magistrates Court the appellant was convicted of committing an act outraging public decency and exposure. The appellant was sentenced to 12 weeks imprisonment on 13 February 2017 and placed on the Sex Offenders Register for 7 years. The District Judge (Magistrates Courts) notes the appellant had intentionally exposed his penis and was considered to have met the criteria for deportation on conducive grounds.
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A judge of the First-tier Tribunal dismissed the appeal against the refusal of the asylum claim and entitlement to a grant of Humanitarian Protection but allowed the appeal on Article 3 ECHR grounds, which has not been challenged by the Secretary of State.
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Error of law was found in the decision of the First-tier Tribunal. Mr Bandegani identified the issue in this matter in the following terms:
This appeal raises a single issue which is did the Judge materially err in law by failing to determine whether A is at real risk of serious harm for a refugee Convention reason? This in turn raises an issue of principle. If a person is subject to prohibited treatment due to their mental ill-health, are they being persecuted by reason of their membership of a particular social group (PSG)?
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Mr Bandegani submitted that this issue had been raised before the Judge both in his skeleton argument and oral submissions which was not disputed by Mr Diwnycz. As it was a point at large before the Judge which the Judge failed to deal with, which may have made a material difference to the dismissal of the appeal on asylum grounds, it was found the Judge has erred in law in a manner material to the decision to dismiss this aspect of the appeal; such that the decision in relation to the asylum ground was set aside.
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In this decision the Upper Tribunal will consider the outstanding issue with a view to substituting a decision to either allow or dismiss the asylum appeal.
The Law
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Paragraph 334 of the Immigration Rules states that:
An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom;
(iv) he does not, having been convicted by a final judgment of a particularly serious crime, he does not constitute danger to the community of the United Kingdom; and
(v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group”.
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Regulation 2 of the Person in Need of International Protection (Qualification) Regulations 2006 defines a refugee as a person who falls within Article 1(A) of the Geneva Convention and to whom regulation 7 does not apply.
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Article 1(A) of the Refugee Convention as originally approved reads:
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For the purposes of the present Convention, the term “refugee” shall apply to any person who:
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Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization; Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of para-graph 2 of this section;
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As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is out-side the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
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The Convention relating to the Status of Refugees (“the Geneva Convention”) therefore initially applied only to those who became refugees as a result of events occurring before 1 January 1951. It came into force on 22 April 1954. The 1967 Protocol relating to the Status of Refugees amended the Geneva Convention so that it also applies to those who become refugees as a result of events occurring on or after 1st January 1951. This came into force on 4 October 1967.
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The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 in part implement Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive). Regulation 6 states:
(1) In deciding whether a person is a refugee….
(d) a group shall be considered to form a particular social group where, for example:
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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...
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