Upper Tribunal (Immigration and asylum chamber), 2021-03-18, PA/11318/2019
| Jurisdiction | UK Non-devolved |
| Date | 18 March 2021 |
| Published date | 01 April 2021 |
| Hearing Date | 25 February 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/11318/2019 |
Appeal Number: PA/11318/2019 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11318/2019 (V)
THE IMMIGRATION ACTS
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Heard at Field House via Skype for Business |
Decision & Reasons Promulgated |
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On Thursday 25 February 2021 |
On 18 March 2021 |
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Before
UPPER TRIBUNAL JUDGE SMITH
Between
T E S G
Appellant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms U Sood, Counsel acting on a direct access basis
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer.
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was made by the First-tier Tribunal. As this appeal involves a protection claim, I consider it is appropriate to continue that order. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies, amongst others, to both parties. Failure to comply with this direction could lead to contempt of court proceedings.
DECISION AND REASONS
BACKGROUND
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The Appellant appeals against the decision of First-tier Tribunal Judge O R Williams promulgated on 23 March 2020 (“the Decision”). By the Decision, the Judge dismissed the Appellant’s appeal against the Respondent’s decision dated 17 October 2019 refusing her protection and human rights claims but accepting those as fresh claims. This is the second appeal brought by the Appellant. Her first appeal was dismissed by the First-tier Tribunal (Judge Tynan) in July 2016 and upheld on onward appeal by the Upper Tribunal (Deputy Upper Tribunal Judge Doyle). The Appellant’s two children are dependents on her claim.
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The Appellant is a national of Egypt. It is accepted that she is a Coptic Christian. She claims that she and her family were targeted in Egypt by a Salafist preacher (“SG”). The Judge took as his starting point the previous appeal decision as he was bound to do. He accepted that the Appellant is a Copt. He also accepted that the Appellant would be at risk from SG if she chose to return to the district of Cairo where SG lived and where the Appellant had previously resided with her husband and children but concluded that the Appellant could safely and reasonably relocate within Egypt ([19] of the Decision). He found that SG would not be able to trace the Appellant via the police in Egypt. The Judge did not accept the Appellant’s case that her husband (who remains in Egypt) has been attacked in order to obtain information about the Appellant and her children nor that he is in hiding in fear of Islamist groups. The Judge did not accept as genuine documents purporting to show that the Appellant is wanted by the Muslim Brotherhood. Whilst the Judge accepted that the Appellant’s parents and sisters were recognised as refugees in the UK in 2012, he did not accept that this had any bearing on the Appellant’s case.
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The Judge treated the Appellant as a vulnerable witness. The Appellant’s daughter [C] also suffers from mental health problems. The Judge dealt with the evidence in that regard at [27] to [30] of the Decision but did not accept that return to Egypt would breach Articles 3 or 8 ECHR. The appeal was dismissed on all grounds.
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The grounds of appeal are discursive but may be summarised as follows:
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The Judge has ignored the Appellant’s account that she has reported sensitive information to the police in the UK. That information is said to be the identification of one of her attackers in Egypt from a YouTube video showing an attack on another Christian woman.
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The Judge has failed to take into account some of the medical evidence which attributes [C]’s mental health problems to fears for her father in Egypt and fears of what will happen to her on return rather than, as the Judge is said to have concluded, being based on separation from her father. For that reason, it is said that the Judge has failed properly to assess the impact of return on [C]’s mental health.
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The Judge has failed properly to assess the relevance of the grant of asylum to the Appellant’s parents and sister.
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The Judge has failed to consider an argument of risk generally to Copts.
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The Judge has failed to take into account the Respondent’s failure to consider her section 55 duty to assess the best interests of the child.
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The Judge has failed to take into account the relationship between the Appellant’s children and her sister. It is said that her sister has been appointed as their “testamentary and spiritual guardian” and that this, coupled with the impact of the Appellant’s inability to parent because of her mental health problems, has not been considered when looking at the position on return.
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The Judge has not considered any breach of Article 3 ECHR in relation to [C].
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Permission to appeal was refused by First-tier Tribunal Judge Kelly on 14 May 2020 in the following terms:
“The grounds make little sense given that they complain that the Tribunal failed to engage with the many and varied legal submissions made by their author at the hearing whilst simultaneously purporting to be ‘holding grounds’ pending receipt of a legible copy of the Tribunal’s decision. It is not in any event arguable that the Tribunal failed to deal with those legal issues that were relevant and necessary for the just determination of an appeal against refusal of an international protection and human rights claim. The complaint that the Tribunal failed to adjudicate upon the alleged failure of the respondent to consider the welfare of a child under section 55 of the 2009 Act is entirely misconceived given that (a) it is no longer a ground of appeal that the respondent’s decision was ‘not in accordance with the law’ (see sections 82 and 84 of the 2002 Act as amended by sections 15 and 16 of the Immigration Act 2014), (b) the authorities cited in support of this ground were decided in relation to appeals where this ground of appeal was still available (ie prior to the amendments referred to above) and (c) the Tribunal specifically considered section 55 for itself. Permission to appeal is accordingly refused.”
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The application was renewed on the same grounds to this Tribunal. The Appellant however raised an additional ground namely that the Judge “had omitted to evaluate the additional risk (raised as a preliminary issue at the hearing) from the Appellant’s evidence recently identifying a perpetrator”. As I understand it from the footnote, this is the issue which I summarised as ground (1) above.
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Permission to appeal was granted by Upper Tribunal Judge Norton-Taylor on 30 July 2020 as follows so far as relevant:
“… 2. With respect to the author of the grounds, they are not the easiest to follow. One element of them is what is said to be an ‘additional risk’ in respect of the appellant’s claimed identification of a ‘perpetrator’. If this matter was properly put before the judge, it is arguable that he has not dealt with it. Counsel will need to provide a copy of her notes of the hearing and/or a witness statement in respect of this proposed challenge.
3. On the face of it, there does not appear to be any great merit in the other grounds. However, I am granting permission in respect of all of them.”
Although Judge Norton-Taylor provisionally indicated that the error of law hearing should proceed on a face-to-face basis, following submissions made on behalf of the Appellant, Upper Tribunal Judge Kekic directed on 15 October 2020 that the hearing should proceed as a remote hearing.
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So it is that the matter comes before me to determine whether the Decision contains an error of law and, if I so conclude, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. The hearing before me was conducted via Skype for Business. There were no major technical difficulties affecting the conduct of the hearing. In addition to the representatives, the Appellant also attended remotely but did not participate. In addition to the Appellant’s bundle to which I refer below as [AB/xx] I also had the Respondent’s bundle, the Appellant’s skeleton argument before Judge Williams and a skeleton argument produced by Ms Sood for the hearing before me.
DISCUSSION AND CONCLUSIONS
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As noted by Judge Norton-Taylor, the grounds are discursive. Whilst I have attempted to summarise the grounds as pleaded at [4] above, it is most convenient to break down the issues into the order in which they were taken at the hearing which broadly separates them into the challenges to the Judge’s consideration of the protection claim first and the human rights claim second.
PROTECTION GROUNDS
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The first part of the Decision is concerned with the previous appeal decision which Judge Williams rightly notes at [15] of the Decision should be her starting point (per Devaseelan). At [16] of the Decision, Judge Williams summarises the findings made by Judge Tynan in 2016. At [17] of the Decision, Judge Williams sets out the salient passage from the decision of Deputy...
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