Upper Tribunal (Immigration and asylum chamber), 2021-02-25, PA/11738/2017 & PA/00957/2018
| Jurisdiction | UK Non-devolved |
| Date | 25 February 2021 |
| Published date | 31 March 2021 |
| Hearing Date | 14 December 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/11738/2017 & PA/00957/2018 |
PA/11738/2017
PA/00957/2018
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: PA/11738/2017 PA/00957/2018 |
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 8 October and 14 December 2020 |
On 25 February 2021 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE BLUNDELL
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
(1) GW (SIERRA LEONE)
(2) FM (GAMBIA)
(ANONYMITY DIRECTIONS MADE)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the First Appellant: Ms A Weston QC and Ms G Brown of counsel, instructed by Luqmani Thompson & Partners Solicitors
For the Second Appellant: Mr R De Mello of counsel, instructed by Fountain Solicitors
For the Respondent: Ms C Van Overdijk of counsel, instructed by the Government Legal Department
DECISION AND REASONS
A. INTRODUCTION
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These two appeals, brought by female appellants of different nationalities, were linked because they presented an opportunity for the Upper Tribunal to consider and to give guidance upon a legal issue which was framed as follows:
In a protection appeal before the Immigration and Asylum Chamber, what significance, if any, is to be attached to the fact that a judge in the Family Court has made a Female Genital Mutilation Prevention Order in respect of the appellant or a relevant member of the appellant’s family?
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In the event, the respondent conceded that the first appellant’s appeal should be allowed on protection grounds and that her appeal also provided an opportunity for the Upper Tribunal to revise, by consent, the guidance given by the Immigration Appeal Tribunal in RM (Sierra Leone – Female Genital Mutilation – membership of a particular social group) Sierra Leone [2004] UKIAT 00108 and by the Asylum and Immigration Tribunal in FB (Lone women - PSG – internal relocation – AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090.
B. THE FIRST APPELLANT – GW
Background
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The first appellant is a national of Sierra Leone who was born on 12 September 1997. She is single and has no children. On 22 April 2014, she made an application in Freetown for UK entry clearance as a visitor. The application was granted, and she was issued entry clearance in that capacity from 9 June 2014 to 9 December 2014.
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The appellant arrived in the UK on 9 August 2014. She subsequently made an application for leave to remain outside the Immigration Rules. That application was refused on 9 February 2015. The appellant appealed and her appeal was heard by the FtT on 22 January 2016. The appellant did not attend. The appeal was then withdrawn by the appellant.
Protection Claim
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On 6 May 2016, the appellant applied for asylum. On 19 May 2016, she underwent a screening interview. She stated that she had travelled to the UK with her stepmother, BBW. She gave brief details of the basis upon which she feared return to Sierra Leone, stating that she would be forced by her stepmother to undergo Female Genital Mutilation (“FGM”). She stated that BBW was a member of the Bondo Society and that she had been consistently violent to the appellant in the past.
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The respondent was informed by the Metropolitan Police on 22 September 2016 that there was an ongoing investigation into an allegation that the appellant was being coerced to return to Sierra Leone to undergo FGM. On 18 October 2016, she was advised by the Metropolitan Police that they had made an application at the High Court for a Female Genital Mutilation Prevention Order (“FGMPO”).
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The appellant underwent a substantive asylum interview on 2 November 2016. She submitted an email from her father in which he stated that he had decided to accede to BBW’s demands and to ask the appellant to return to Sierra Leone so that she could undergo FGM. She provided further details of her stepmother’s senior role in the Bondo Society and of the expectation that she would be initiated into the society by undergoing FGM. Her stepmother had spoken to her two days before they left for the UK and had told her that she was at the right age for initiation. She was a Christian and a Jehovah’s Witness, however, and she did not believe in going through ‘the ritual’. Her stepmother was a Muslim who was committed to the practice. She had been protected from FGM by her grandfather, but he had passed away a year before she came to the UK. Her stepmother had no children of her own and she was her father’s only daughter.
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The appellant said that her stepmother had decided that she would inherit her role in the Bondo society. Her stepmother had been in the UK and had mistreated the appellant here. A lawyer connected to her stepmother and her father had made the application for leave to remain outside the Rules and she knew nothing about it. She did not believe that she could approach the authorities for assistance or that she could relocate within Sierra Leone to avoid the threat from the Bondo Society. The appellant was asked no questions about the proceedings in the High Court.
Refusal of Asylum
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The appellant was refused asylum on 17 November 2016. It was accepted that the appellant fell within the Particular Social Group of uninitiated indigenous females in Sierra Leone, as identified by Arden LJ (as she then was) in Fornah [2005] EWCA Civ 680; [2005] 1 WLR 3773 and endorsed by the House of Lords on appeal: [2006] UKHL 46; [2007] 1 AC 412. The respondent did not accept, however, that the appellant would be forced to undergo FGM on return to Sierra Leone. That conclusion was based on what were said to be inconsistencies and inherent implausibility in the appellant’s account, and on her failure to claim asylum in the United Kingdom for nineteen months. In the alternative, the respondent concluded that the appellant could avail herself of a sufficiency of protection in Sierra Leone or that she could relocate internally so as to avoid any threat from her stepmother and the Bondo Society.
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For reasons which are unclear, the respondent’s refusal letter was not sent to the appellant or her solicitors until 1 November 2017. On 13 November 2017, she appealed to the First-tier Tribunal against that decision.
FGMPO Proceedings
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In the meantime, the application for an FGMPO had proceeded before the Family Division of the High Court. The application was made by the Metropolitan Police Service (“the MPS”). The appellant’s stepmother BBW and BBW’s UK-resident brother, BM, were the named respondents. The application was heard by Peter Jackson J, as he then was, over the course of a 48-minute hearing on 13 December 2016. The MPS was represented by counsel. The respondents appeared in person, with the first respondent being assisted by a McKenzie friend. The judge gave an ex tempore judgment, a transcript of which is before us.
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Peter Jackson J recorded that the MPS had filed an array of evidence in support of the application. That included evidence from GW herself and from the investigating officer, DC Roberts, ‘and from a variety of other sources’: [2]. He set out the relevant background at [4]-[6]. He made reference to the legislative amendments which had been made in 2015 which provided for the issuance an FGMPO to protect a girl or woman against the criminal offence of FGM: [6]. He directed himself that he was to have regard to all the circumstances, including the need to ensure the health, safety and wellbeing of the girl to be protected: [7].
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At [8], Peter Jackson J recalled what had been said by Macdonald J in London Borough of Camden v RZ & Ors [2015] EWHC 3751 (Fam) and Re E [2016] EWHC 1052: that the court is dealing with the assessment and management of risk. The court was not required, he noted, to make a specific finding of fact in relation to the central question of whether or not FGM will or will not be performed. Although some conclusions were to be drawn, it was essentially a broad canvas, considering not only what had taken place in the past but also what protection might be necessary to protect the individual in question.
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Peter Jackson J returned to the chronology in some detail at [9]-[12], including the email from the appellant’s father. He summarised the submissions made by the MPS about that email at [13]. It had been confirmed, he noted, that the email had been sent from Freetown but it might not be genuinely supportive of the risk which was said to exist. Peter Jackson J’s ‘best interpretation’ was that it was a message from GW’s father but that it referred to a threat from her mother, not her step-mother. He also took the view that it was...
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