Upper Tribunal (Immigration and asylum chamber), 2022-08-02, PA/03413/2020
| Appeal Number | PA/03413/2020 |
| Hearing Date | 15 June 2022 |
| Published date | 17 August 2022 |
| Date | 02 August 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-001218 (PA/03413/2020)
Upper Tribunal
(Immigration and Asylum Chamber) UI-2021-001218 (PA/03413/2020)
THE IMMIGRATION ACTS
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Heard at George House, Edinburgh |
Decisions & Reasons Promulgated |
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on 15 June 2022 |
on 2 August 2022 |
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Before
UPPER TRIBUNAL JUDGE MACLEMAN
Between
R J
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
For the Appellant: Mr A Caskie, Advocate, instructed by SJK, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
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FtT Judge Green dismissed the appellant’s appeal by a decision promulgated on 21 October 2021.
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The appellant sought permission to appeal to the UT on grounds attached to her application dated 29 October 2021: …
2. The Judge at [68] posits an alternative solution to the question of the appellant being forced to marry her older cousin, being that the appellant married her partner. It is submitted that it is unreasonable of the Judge to require individuals to enter into a marriage they otherwise would not enter into (at this time) in order to avoid persecution. That would be an impermissible requirement in light of HJ (Iran) and in having regard to that the Judge had regard to an irrelevant matter.
3. The substance of the Judge’s decision is that the appellant could obtain a sufficiency of protection in Namibia and can internally flee. In each of those respects the Judge erred in law.
4. At [74] the Judge indicates the appellant had already been to the police (with her partner) in respect of a violent assault on her and her partner and the kidnapping (regardless of how that was described) of their child and that the police failed to take any action in that respect. In carrying out his overall assessment at [77] on that issue the Judge concluded that there was in place a criminal justice system and a state operated police force. The Judge required to assess whether those systems in combination provided a system of protection that was sufficient to exclude the appellant from a need for international protection. That such a system hypothetically exists does not provide protection to the appellant in a practical sense where repeated reports to the police are not responded to. In making his assessment the Judge looked to the systems hypothetically in place and not the practical effectiveness of those systems. That is a failure to have regard to relevant matters.
5. There can be little doubt that Namibia does operate, at least at a hypothetical level, a system of sufficient protection for its citizens. However, given that the Judge accepted the evidence of the appellant of repeated reports being made to the authorities without any effective response from those authorities the Judge left out of account a relevant matter in assessing whether at a practical level those systems were sufficient.
6. At [82] the Judge uses the phrase “does not inexorably lead to the conclusion”. That is a clear indication that the wrong standard of proof has been applied. The correct standard being “real risk”, means that assessing whether a conclusion is inexorably lead to is unlawful and is an error in law.
7. At [85] the Judge rejects Mr Caskie's “superficially attractive” submission to the effect of the combination of a centralised national identity card scheme in combination with high levels of corruption meant that the appellant could be located by the appellant’s brother by identifying a corrupt official with access to the national identity card system. The Judge rejected that submission because the appellant was not located during the three months she was in hiding in Namibia. The context of that was that the appellant had moved to an alternative location for a brief period before she departed from Namibia. There was no evidence that during that period the appellant had updated her address details on the centralised computerised National Identity register. She could not be expected to behave in the same way i.e. avoid compulsory registration, if she were to take up life permanently in Namibia. The Judge left that out of account.
8. The Judge finally indicates that he does not accept the appellant is of any particular interest to her brother, despite his previous conduct. The Judge had accepted earlier in the determination the significance of a “bride price” having been paid but failed to explain why that “bride price” having been paid, and the substantial evidence of the significance of that in terms of standing within Namibian society, her brother would have lost interest in her. That is a failure to provide adequate reasons and\or a failure to have regard to relevant matters and therefore an error of law.
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In a decision dated 17 December 2021, FtT Judge Veloso granted permission on the view that it was “arguable that the Judge erred in his assessment of sufficiency of protection, bearing in mind the appellant’s previous reports to the police, and in his assessment of internal relocation, including the ability of the appellant’s ability to locate her”. (Permission was refused on [1] of the grounds, which is not reproduced above.)
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The SHD responded to the grant of permission on 25 January 2022, along the lines that the grounds were disagreements; the Judge directed himself correctly on sufficiency of protection at [71–73] and applied that guidance at [74–77]; the appellant’s complaints to the police and their reaction were taken into account; the risk of the appellant being found, if she were to relocate, was no more than theoretical; that conclusion was properly based on the evidence; and the decision should be upheld.
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The FtT’s decision at [68] says:
Whilst I accept that customary marriage is commonplace in Namibia, it cannot be said that it is the only form of marriage that is open to the Appellant and EU [her partner]. They have said that if they enter a customary marriage [that] would not be recognised. They also have the option of a civil marriage and it is open to them to enter into one should they desire to. If the couple enter a civil marriage, the Appellant cannot be forced to marry her older cousin.
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Submitting on [2] of the grounds, Mr Caskie said that passage offended against article 12 of the ECHR, the right to marry and to found a family as an individual might choose. This was the imposition by the Judge of an unlawful “alternative remedy”, an error such that the decision could not stand.
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That was an ingenious interpretation of [68], but I prefer the submission of Mr Mullen that it reads into the passage much more than the Judge intended. Nothing in it is factually inaccurate. He observes an option open to the appellant and her partner if they desire it. He observes that if civilly married the appellant could not be forced to marry her older cousin; but he does not say that, taking her case at highest, marriage would automatically end any problems with her brother. He does not say that the solution to the case is a legal obligation to take that option.
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Ground [3] says nothing of substance. Representatives took [4] and [5] together.
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At [74-77] of his decision the Judge noted the nature of the justice system and of measures against domestic violence in Namibia and that the appellant and her partner, EU, had been to the police. He concluded that legal sufficiency of protection is available.
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The criticism in the grounds and submissions was that the Judge did not have regard to the fact that complaints were made and no action taken, which showed that protection was hypothetical only and practically ineffective.
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I am not persuaded that the Judge looked at protection only in theory and not in practice. There is not said to be any inaccuracy in his self-directions on the law at [71 – 73]. The complaints to the police are noted several times in the decision, along with “little to suggest” that those complaints were not taken seriously. As Mr Mullen observed, nowhere in the world do complaints to the police result in a 100% record of successful prosecutions. The absence of a conviction of the appellant’s brother did not require an outcome in her favour.
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I do not find in this part of the grounds any more than disagreement with where the Judge, applying the principles of case law, drew the line on the facts.
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Nor do I accept the closing submission that the case was decided on general sufficiency of protection. The crucial question remained whether there was a real risk to the appellant; and the Judge found against her on the availability of...
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