Upper Tribunal (Immigration and asylum chamber), 2021-08-25, PA/03026/2019
| Jurisdiction | UK Non-devolved |
| Date | 25 August 2021 |
| Published date | 09 September 2021 |
| Hearing Date | 29 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/03026/2019 |
Appeal Number: PA/03026/2019 (V)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03026/2019 (v)
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre On 29 July 2021 Remotely by Microsoft Teams |
Decision & Reasons Promulgated On 25 August 2021 |
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Written Submissions on 2 August 2021 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
MK
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms E Gunn instructed by Migrant Legal Project (Cardiff)
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
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The appellant is a citizen of Sierra Leone who was born on 18 September 1963. She arrived in the United Kingdom in June 2006 as a visitor. After her six months’ leave expired, the appellant overstayed. Thereafter she made a number of applications between 25 August 2012 and September 2016 for leave to remain based, inter alia, upon a relationship in the UK and subsequently on asylum, humanitarian protection and human rights grounds. In relation to a rejected human rights claim on 11 December 2013, the appellant unsuccessfully appealed to the First-tier Tribunal (Judge Fox). Her appeal was dismissed on 29 July 2014 and she was subsequently refused permission to appeal by the First-tier Tribunal and Upper Tribunal.
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Her final claim was made on 21 September 2016 and 26 September 2016. The appellant’s claim was that she had been subject to Female Genital Mutilation (“FGM”) in or about 1981. She and her family were members of the Bondo Society, an all-female secret society that practises FGM in Sierra Leone. The appellant’s aunt was a Sowei, a local leader of the Bondo Society. The appellant did not wish to take over her aunt’s role and replace her as a Sowei. She claimed that after she came to the UK, her estranged husband, whom she had discovered had bigamously married another woman in Sierra Leone, had informed her aunt that she (the appellant) had divulged the secrets of the Bondo Society in the UK and that, as a result, she was at risk on return, in particular from her aunt and other family members.
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Her claim was, initially, refused on 8 September 2017 and certified without a right of appeal. However, that decision was withdrawn on 5 October 2017.
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On 9 March 2019, the Secretary of State reconsidered the appellant’s application for asylum, humanitarian protection and under Art 8 of the ECHR. In a decision on that date, the Secretary of State again refused each of the appellant’s claims. The Secretary of State rejected the appellant’s claim to be at risk on return to Sierra Leone from her family and members of the Bondo Society.
The Appeal
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The appellant appealed to the First-tier Tribunal. In a decision sent on 19 September 2019, Judge Lever dismissed the appellant’s appeal on all grounds. The appellant was granted permission to appeal against that decision and, in a decision sent on 6 March 2020, the Upper Tribunal (UTJ Grubb) concluded that Judge Lever had erred in law in dismissing the appellant’s appeal and remitted it to the First-tier Tribunal for a de novo rehearing.
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That remitted hearing took place before Judge Rhys-Davies on 15 December 2020. In a decision sent on 8 February 2020, Judge Rhys-Davies dismissed the appellant’s appeal on all grounds. The judge made an adverse credibility finding and did not accept that the appellant would be at risk on return to Sierra Leone, as she claimed, from her family or members of the Bondo Society.
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The appellant sought permission to appeal against Judge Rhys-Davies’ decision. Initially, permission to appeal was refused by the First-tier Tribunal (Judge Beach) on 16 March 2020. However, on renewed application for permission to the Upper Tribunal, UTJ Kekić granted the appellant permission to appeal.
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The respondent did not file a rule 24 response.
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The appeal was listed for a remote hearing at the Cardiff Civil Justice Centre on 29 July 2021. I was based in court while Ms Gunn, who represented the appellant, and Mr Avery, who represented the Secretary of State, joined the hearing remotely by Microsoft Teams.
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At the hearing, I directed that the parties should, if they wished, make written submissions on ground 1 and, in particular, in respect of the decision of the Inner House of the Court of Session in HA (Afghanistan) v SSHD [2010] CSIH 28. Ms Gunn filed written submissions on 2 August 2021. Mr Avery did not file any submissions in response.
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There is one final preliminary matter. At the outset of the hearing, I drew to the representatives’ attention that I have been previously involved in the appellant’s appeal as the Upper Tribunal Judge who had remitted the appeal to the First-tier Tribunal having identified an error of law in the decision of Judge Lever. Both representatives indicated that they were content that I should continue to hear the appeal.
The Judge’s Decision
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In relation to the appellant’s asylum claim, Judge Rhys-Davies made an adverse credibility finding. Although the appellant relied upon a supportive expert report from Ms Conteh regarding the plausibility of the appellant’s account and medical report by Dr Battersby that the appellant had symptoms of PTSD, the judge relied upon a number of inconsistencies between the appellant’s evidence and her evidence at an earlier appeal hearing in 2014 before Judge Fox when she had unsuccessfully appealed a refusal to grant her leave under Art 8 of the ECHR. The judge relied upon a number of matters disclosed in Judge Fox’s determination and also in a witness statement from the appellant which had been part of those proceedings. Judge Rhys-Davies concluded that the inconsistencies with Judge Fox’s decision “causes material damage to the appellant’s credibility” (para 81) and the omission to mention in a witness statement in those earlier proceedings that three of her children had died and she had suffered grief as a result “causes significant damage to the appellant’s account” (see para 85).
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In the result, having discounted both the report of Ms Conteh and Dr Battersby, not least because neither had a copy of Judge Fox’s decision, Judge Rhys-Davies did not accept the appellant’s account to be credible and dismissed her international protection claim. The judge also went on to dismiss her appeal under Art 8 of the ECHR.
The Grounds of Appeal
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The appellant relies upon four grounds of appeal which Ms Gunn developed in her oral submissions and, in relation to ground 1, in her written submissions after the hearing of the appeal on 2 August 2021.
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Ground 1 contends that the proceedings before Judge Rhys-Davies were procedurally unfair. It is contended that the judge relied upon inconsistencies between the appellant’s evidence in Judge Fox’s decision in 2014 and in her evidence in this appeal without giving the appellant an opportunity to deal with those inconsistencies. Further, the judge relied upon an inconsistency (an omission) in the appellant’s evidence in her witness statement before Judge Fox and in her evidence in this appeal. It is contended that none of these matters were drawn to the attention of the appellant’s representatives. Ms Gunn relied on the fact that the determination of Judge Fox had only been provided to her, by email, shortly after the beginning of the appeal hearing. She had not been provided, nor had her instructing solicitors, with the appellant’s 2014 witness statement. That was only provided to them, following sight of Judge Rhys-Davies’ decision, on request to the respondent. Ms Gunn submitted that neither in the Decision Letter (“DL”), nor orally at the hearing before Judge Rhys-Davies, did the respondent’s representative rely upon the inconsistencies in the evidence which Judge Rhys-Davies took into account as significant in reaching his adverse credibility finding. That, Ms Gunn submitted, was procedurally unfair. The case law in support of that submission was extensively set out in her written submissions dated 2 August 2021.
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Ground 2 contends that the judge failed properly to take into account the country export report, namely that of Ms Conteh, who considered the appellant’s account to be plausible before reaching his adverse credibility finding. Ms Gunn submitted that the judge had fallen into the so-called Mibanga error (see Mibanga v SSHD [2005] EWCA Civ 367) by reaching his adverse finding and then discounting the expert evidence as being inconsistent with his already reached adverse credibility finding.
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Ground 3 contends that the judge wrongly took into account, as damaging the...
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