Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: AA042882014 THE IMMIGRATION ACTS Heard at Field House Decision & Reasons Promulgated On 15 th February 2016 On 13 th June 2016 Before DEPUTY UPPER TRIBUNAL JUDGE JUSS Between G S A (ANONYMITY DIRECTION MADE) Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: Ms A Benfield (Counsel) For the Respondent: Ms Brockley-Weller (HOPO) DETERMINATION AND REASONS 1. This is an appeal against a determination of First-tier Tribunal Judge Rayner promulgated on 9 th September 2015, following a hearing at Taylor House on 29 th June 2015. In the determination, the judge dismissed the appeal of the Appellant, whereby the Appellant applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me. CROWN COPYRIGHT 2016
The Grant of Permission 2. Permission to appeal was granted by the Upper Tribunal on 12 th November 2015 on the basis that, although the judge gave sustainable reasons for concluding that victims of trafficking did not constitute a PSG in the context of Pakistani society, following Shah and Islam [1999] UKHL 20, it was arguable that the First-tier Tribunal failed to consider whether the Appellant was a member of a PSG by reason of her gender. Second, although the previous ill-treatment to which the Appellant was subjected by her family may not have amounted to persecution, given that the family blame her for the problems that they are experiencing from Dr AT s family, and their likely dishonour following her arrest and imprisonment, it is arguable that the first Tribunal s conclusion that the Appellant will not face any domestic violence from her brothers is irrational. Alternatively, this was a conclusion that the judge was not entitled to reach on the evidence. Third, having found that the Appellant was a credible witness, it was arguable in the context of the internal relocation analysis, that the judge failed to take adequate account of the Appellant s evidence relating to her capacity to work, a relevant factor in assessing what is likely to happen to her once an protection offered by a shelter to her comes to an end. Fourth, the judge also observed that there were only two lines in relation to the Article 8 assessment and it was arguable that no consideration was given to two particular matters. First, that the Appellant was the victim of trafficking. Second, that her medical condition would have an effect on her private life and on her physical and moral integrity. This was the basis upon which permission was granted by the Upper Tribunal. 3. A Rule 24 response dated 10 th December 2015 was to the effect that the judge gave reasons and findings on PSG at paragraph 21 and the judge also held that if there was a risk to the Appellant from her family it would not lead to ill-treatment (see paragraph 25). Submissions 4. At the hearing before me on 15 th February 2016, Ms Benfield, appearing on behalf of the Appellant, relied upon her skeleton argument. She made the following submissions. First, this was a case where the judge had found the Appellant to be broadly credible with respect to being a victim of human trafficking from Pakistan (see paragraph 14). The judge held that the Appellant was a credible witness and that her account has been consistent (see paragraph 13). In these circumstances the judge should have considered the position of the Appellant as a member of a particular social group, on the basis of being a woman in Pakistan. This followed from the House of Lords judgment in Shah and Islam [1999] UKHL 20 where it was concluded that women in Pakistan constituted a PSG because they share a common immutable characteristic of gender. Second, the judge failed to make an assessment on the risk of persecution at the hands of the Appellant s brothers. The Appellant s general credibility had been established. Her account of ill-treatment and abuse at the hands of 2
her brothers was consistent and coherent. The Appellant s case was one of being a bonded labourer, and in escaping, she had brought a tremendous risk of ill-treatment upon the family and the brothers were not likely to forgive her and the judge ought to have given consideration to this matter. Third, prior to the Appellant s arrival in the UK, there were clear indicators that the Appellant s family were abusive, both in attempting to compel her into a forced marriage, and then sending her to the UK into domestic servitude. 5. There was a history of domestic violence and abuse in the Appellant s case. The objective evidence and the country guidance case of SN and HM [2004] UKIAT 00283, clearly indicated that there is no effective state protection for women at risk of gender-based domestic violence in Pakistan. Fourth, as far as internal relocation was concerned, the judge was wrong to have concluded that this would not be unduly harsh given the Appellant s particular vulnerability as an individual with a diagnosed mental health condition, which was highly likely to impact negatively on her ability to obtain work and live independently as a lone woman in Pakistan. Reference was made to the case of SM (Lone women ostracism) [2016] UKUT 67. 6. Finally, there was the failure to give sufficient reasons in relation to Article 8 ECHR. The judge concluded (at paragraph 46) that the Appellant did not qualify for leave to remain under Appendix FM or paragraph 276ADE outside the Immigration Rules. He said that there was nothing exceptional to warrant consideration outside the Rules. However, the judge should have considered the Appellant s Article 8 rights as an assessment of proportionality outside the Rules, particularly considering her mental health condition and the likely deterioration in her mental state that was supported by medical evidence in the event of removal. The Appellant s physical and moral integrity (set out at paragraphs 37 to 39 of Counsel s skeleton argument before the judge) ought to have been properly considered. 7. For her part, Ms Brockley-Weller submitted that the judge did not identify Shah and Islam, but it was not material because he did go on to consider other issues, such that it would not have made any difference to the result eventually reached. My attention was drawn to paragraph 25 of the determination where the judge stated that, looking at the evidence in the round, the Appellant s family in Pakistan have abandoned her, but they have not offered her any threat, indeed they have consistently shown that they are concerned for her welfare (paragraph 25). Furthermore, the judge had gone on to say that the Appellant was not a divorced woman, but the legal test that applied was applicable by way of analogy for determining the risk faced by women on return to Pakistan, and the judge referred to the case of SN and HM [2004] UKIAT. The family would have no incentive to seek out the Appellant and punish her. Furthermore, if one looked at the 2014 report, it was clear that the Appellant did not have any suicidal tendencies. In fact, since she had been in the UK she had completed her behavioural cognitive therapy and was only suffering 3
from moderate depression, such that it was entirely right to reject the claim. As far as Article 8 was concerned, this had not been advanced orally and the judge was entitled to give it the brevity of consideration that he did. 8. In reply, Ms Benfield submitted that there was a letter from the Bamber Foundation and it is not true that the Appellant did not have any suicidal tendency because the latest letter referred to the fact that the Appellant had thought throughout of self-harm and suicide as a result of her pessimistic outlook for the future. At paragraph 46, where the judge considers Article 8, there is simply no proper analysis. There is no substantive consideration of the issues. Error of Law 9. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. First, this is a case where, following on from the well-known case of Shah and Islam [1999] UKHL 20, the judge, having found that the Appellant was a victim of human trafficking, ought to have considered her position in the context of her gender. The failure to do so prevented consideration by the Tribunal of the Appellant as a member of a particular social group, in a manner which the House of Lords had previously decided would have reasonable prospects of success. Second, the judge does not consider the serious harm and the possibility of it of domestic violence at the hands of her brothers. This is important in the context of bonded labour and the existing evidence that there had already been evidence of domestic abuse of the Appellant by her family. Third, the sufficiency of protection had to be considered in the context of the acute vulnerability of the Appellant. This was a case where the Bamber Foundation had been involved, and the judge had made reference to this right at the outset of the determination when he had said that Miss Malpass from the Helen Bamber Foundation accompanied the Appellant (see paragraph 6). Furthermore, the latest evidence from the Bamber Foundation in the form of the letter does recognise that the Appellant has thought of self-harm and suicide. In these circumstances, to say that the Appellant, given her age, and her mental health, has IFA available to her, is irrational. Finally, the Article 8 assessment is inadequate in that there is no proper and detailed analysis of her situation given what I have set out hereto in before in relation to the precise circumstances of this Appellant. Notice of Decision 10. The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is remitted back to the First-tier Tribunal to be determined by a judge other than Judge Rayner given Practice Statement 7.2(b) because the nature or extent of any judicial fact-finding which is necessary in order for the decision in the 4
appeal to be remade is such that, having regard to the overriding objective in Rule 2, it is appropriate to remit the case to the First-tier Tribunal. 11. This is also a case where all positive findings made in favour of the Appellant should be retained because there is long-established Court of Appeal authority to the effect that positive findings should normally be preserved intact. 12. However, in this particular case there is very little upon which the Appellant has been faulted in terms of the credibility of her evidence. She is a vulnerable witness and ought not to be required to give detailed evidence all over again on each and every aspect of her claim. Her claim has only been rejected on a small aspect of her case. Accordingly, positive findings in her favour are to be preserved intact. Direction Regarding Anonymity Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings. Signed Date Deputy Upper Tribunal Judge Juss 11 th June 2016 5