United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003606
	First-tier Tribunal No: PA/55463/2023 IA/00827/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 2 ^nd of April 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE SKINNER

 

Between

 

KN

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr J Kasusula, solicitor, of Kas & Co Solicitors

For the Respondent: Dr S Ibisi, Senior Home Office Presenting Officer

 

Heard at Field House on 24 March 2025

 

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction

1.              The appellant is a national of Namibia, born in 1991. She claims that, if returned to Namibia, her family, including a cousin whom she claims she is to be forced to marry, will subject her to persecution. As such she claims that her removal will breach the UK's obligations under the Refugee Convention and ECHR.

2.              This is not the appellant's first attempt to persuade the authorities that she is a refugee. Having arrived in the UK, she claims, 14 September 2018, she initially claimed asylum on 4 September 2019. This was refused in a decision dated 16 December 2019. The appellant appealed to the First-tier Tribunal and, in a decision dated 1 April 2020 (" the first FTT decision"), that appeal was dismissed. She obtained permission to appeal to the Upper Tribunal, but by decision dated 11 December 2020, that appeal was also dismissed.

3.              This appeal arises from further submissions the appellant lodged on 19 August 2020. For reasons which are unclear, these were not determined until 7 August 2023, when the respondent refused her claim a second time. The appellant appealed that refused to the First-tier Tribunal, but her appeal was refused a second time by decision dated 14 May 2024 (" the second FTT decision"). She now appeals, with permission to this Tribunal against that decision.

The first FTT decision

4.              As the first FTT decision forms, as the Judge correctly noted in the second FTT decision, the Devaseelan starting point on the second appeal, it is necessary to consider first what was decided on that first occasion.

5.              The Judge did not consider that the appellant was credible and found that she had not discharged the lower burden of proof in respect of her claim to have left Namibia because of fear of her cousin, her family or of forced marriage. She did not satisfy the Tribunal that she was subjected to gender based violence by her cousin.

6.              However, even if the appellant's account were wholly true, the Judge considered that the Namibian authorities provided sufficient protection, as "whilst it is apparent that the system is far from perfect...the authorities are taking reasonable steps to address the domestic violence problems in the country by operating an effective system for the detection, prosecution and punishment of acts constituting persecution or serious harm and that applicants have access to such protection" (§33).

7.              Further, the Judge found that the appellant could safely relocate within Namibia.

8.              On appeal to the Upper Tribunal, the appellant submitted that the Judge had erred in relation to her credibility findings, in relation to sufficiency of protection and in relation to internal relocation. The Upper Tribunal found that none of these errors was made out. Accordingly the first FTT decision formed the Devaseelan starting point for the second FTT decision.

The second FTT decision

9.              After setting out introductory matters and summarising the first FTT decision, the FTT, at §14 summarised the appellant's claim, noting that "she repeats her earlier claims" and additionally that she now said that "she had become depressed and wanted to end her life."

10.          At §22, the FTT turned to its consideration of the appellant's claims. At §22, it noted that when making her further claim, she "provided statements including a letter from [her partner in Namibia and the father of her two children] and copies of messages from him. She also provided letters of support. There were letters from the Glasgow psychological trauma service as well as a country expert report dated 5 October 2021."

11.          At §§23-26, the FTT considered the expert report. At §23, it noted the respondent's comment that the sources referred to in relation to sufficiency of protection were dated, going back to 2015 ad that there was a UN report referring to specialised units which the appellant could access if she relocated to Windhoek. At §24, the FTT accepted that the expert could be considered as such and then at §§24-26 summarises his evidence.

12.          At §27, the FTT noted that the previous Tribunal did not find the appellant's account to be credible. It added, "There was a considerable delay before she claimed protection and her explanation is not credible. She had arrived in London and instead of claiming there for an unexplained reason travelled onwards to Norwich. This is a relatively inaccessible party of the United Kingdom. Her account of a fortuitous meeting of someone speaking her tribunal language in a shopping centre is highly improbable." At §28, the FTT noted that there was then the fact that the appellant has a younger sister of marriageable age who could have been proposed as a bride for the cousin it was suggested the appellant would be forced to marry. The appellant's explanation was not accepted and the FTT, noting that the marriage was due to take place in 2016, considered it improbable that the groom would remain waiting to now.

13.          At §29, the FTT considered the letter from the Windhoek central hospital and a letter from the traditional authority. They were however considered "non-specific" and accordingly little weight was placed on them.

14.          At §30, the FTT returned to the expert report. It considered that "to a limited extent it supports the appellant's account and the possibility of her being at risk." However, "[a]gainst this, her relationship with [her partner] indicates that familial pressure are [sic] limited...On return she has the advantage of support from [her partner] and her uncle who has been sympathetic in the past. She enjoys good physical health and has had experience of living in the United Kingdom whilst retaining knowledge of her home country."

15.          At §31, the FTT noted that, if her claim were true, there would be protection available. While "[t]here may be inadequacies in what is offered,... the country information indicates the State is not ignoring the need but is actively taking measures."

16.          At §32, the FTT considered the possibility of relocation, stating "I can see no reason why she could not relocate, for instance to be with her former partner in a city where she has lived before. I am not satisfied that her family have a sustained interest in her and would pursue her. Even if they attempted to contact here [sic] there is still sufficiency of protection."

17.          At §33, the FTT drew together its conclusions on the protection claim as follows:

" In summary, I do not find the appellant has established a real risk of persecution. I am not satisfied she has demonstrated the truth of the underlying claim. I am mindful of the previous tribunal's findings. I find the expert report supports her claim to a limited extent but cannot determine the truth of her account. If there were truth to the account then it is my conclusion there is sufficiency of protection and should there be a need relocation is a reasonable option which would provide her with further safety."

18.          At §34, the FTT turned to the claim in relation to the appellant's mental health, noting that "the report from the Glasgow psychological trauma service, which is now somewhat dated, records that the appellant denied any current intent to self-harm. The evidence does not indicate such a risk will exist in her home country.

19.          At §35, the FTT noted that the appellant would have developed a private life here, but could see no reason why she could not reintegrate into her home country. There were no circumstances which would justify her remaining on a freestanding human rights assessment, particularly in light of the public interest considerations in s.117B of the Nationality, Immigration and Asylum Act 2002.

20.          The FTT accordingly dismissed her appeal.

Appeal to the Upper Tribunal

21.          The grounds of appeal are not well drafted. At the hearing before me, I therefore asked Mr Kasusula to clarify the errors of law which he said, on behalf of the appellant, were to be found in the second FTT decision. He submitted that there were four:

a.     First, that the FTT failed to reasonably assess the new evidence, in particular the expert report;

b.     Second, it failed to provide adequate reasons in refusing the further submissions;

c.      Third, it erred in concluding that the appellant could internally relocate; and

d.    Fourth, it erred in concluding that the appellant did not have a good Article 8 ECHR claim in light of the length of time the appellant has been in the UK and her integration here.

22.          Permission to appeal was granted by Upper Tribunal Judge Mahmood in a decision dated 26 September 2024. So far as relevant, he considered "it is arguable that the Judge may not have given the appeal the most anxious scrutiny for the reasons raised in the grounds of appeal."

23.          There was no rule 24 response filed by the respondent.

Ground 1 - assessment of the evidence

24.          It is important to recall at the outset that the assessment of the evidence is for the FTT, not this Tribunal. To interfere with the FTT's conclusions on primary facts, I must be satisfied that it was plainly wrong. That means that it is a decision which no reasonable judge could have reached. I am also bound, unless there is compelling reason to the contrary, to assume that the FTT has taken the whole of the evidence into account. Findings are not to be tested by considering whether the FTT's account of the evidence is a balanced one. While it must consider all the material evidence, it need not discuss it all and the weight to be given to it is pre-eminently a matter for it. I can therefore only set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration if the FTT's conclusion was rationally insupportable. See Volpi v Volpi [2022] EWCA Civ 464 at [2].

25.          It is clear from the second FTT decision that it did take into account the new evidence (i.e. the evidence which was not adduced in the first appeal). It is expressly referred to and some at least is expressly considered. In particular, the FTT considered the expert report over a number of paragraphs and considered that, to an extent, it assisted the appellant. It does not however follow from that finding that the FTT was rationally bound to conclude that the appellant's account was credible. The FTT explained however why overall it did not consider that the appellant's account was credible and that was in my judgment a finding which it was entitled to reach. The FTT also explained why it did not consider the medical evidence to support a conclusion that the appellant was at risk on return of suicide. I therefore do not agree with the appellant that the FTT failed reasonably to assess the new evidence.

Ground 2 - reasons

26.          I reject the submission that the FTT failed to provide adequate reasons in refusing the further submissions (or, more accurately, the appeal). The principles governing the legal sufficiency of reasons has been helpfully summarised in the Senior President of Tribunals' Practice Direction on Reasons for decisions, of 4 June 2024, as follows:

"5. Where reasons are given, they must always be adequate, clear, appropriately concise, and focused upon the principal controversial issues on which the outcome of the case has turned. To be adequate, the reasons for a judicial decision must explain to the parties why they have won and lost. The reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the main issues in dispute. They must always enable an appellate body to understand why the decision was reached, so that it is able to assess whether the decision involved the making of an error on a point of law. These fundamental principles apply to the tribunals as well as to the courts.

6. Providing adequate reasons does not usually require the First-tier Tribunal to identify all of the evidence relied upon in reaching its findings of fact, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning. The reasons provided for any decision should be proportionate, not only to the resources of the Tribunal, but to the significance and complexity of the issues that have to be decided. Reasons need refer only to the main issues and evidence in dispute, and explain how those issues essential to the Tribunal's conclusion have been resolved."

27.          In my judgment, the FTT's reasons were adequate, clear and appropriately concise and focussed on the principle controversial issues. Here, there was a previous decision of the FTT which formed the starting point for the second FTT's consideration of the protection claim. The question for the second FTT was whether the new evidence, including that given orally, altered the conclusions reached by in the first FTT decision. The second FTT decision appropriately explains why the FTT did not consider that the new documentary evidence could be given much weight and that, despite being supportive of the appellant's account to a degree, the expert report also did not lead the FTT to alter its view of the appellant's credibility. Similarly, the FTT gave in my view adequate reasons in relation to sufficiency of protection and the possibility of internal relocation.

Ground 3 - internal relocation

28.          I further reject the submission that the FTT erred in concluding that the appellant could internally relocate. This was the finding of the first FTT decision and there was little by way of new evidence that went to this issue. This was a conclusion that the FTT was in my judgment entitled to reach.

29.          It follows from my conclusions above that the appellant's appeal against her dismissal of her protection appeal must be dismissed. I would also note that there was in fact no challenge to the finding that there is sufficient protection in Namibia. It follows that even if the above grounds had been made out, they would have been immaterial as the claim would still have failed for that reason.

Ground 4 - article 8

30.          The appellant has submitted that the FTT failed to follow the 5-step Razgar approach to its assessment Article 8. The question is not however whether the FTT set out the test, but whether it was applied in substance. I have no doubt that it was. The FTT accepted that the appellant had private life in the UK. That seems to me to answer positively the first two stages of the Razgar test. There can be no dispute (and I did not understand Mr Kasusula to dispute) that the appellant's removal would be in accordance with the law and in the public interest (i.e. the third and fourth stages are met in the respondent's favour). The real question was therefore proportionality, which was the focus of the FTT's analysis. Its reasons specifically in relation to article 8 are brief, but in my view justifiably so. In particular, they have to be seen in the context of the FTT's findings made in relation to the protection claim and in particular the findings that the appellant was not at risk from her family and could reasonably relocate within Namibia and the rejection of her claim to be at risk of suicide on return. What was left was simply the length of time that the appellant had been in the UK, which fell significantly short of the requisite 20 years under the Immigration Rules, and the public interest factors, including those set out in s.117B of the 2002 Act, to which the FTT referred. It is in my view clear why the FTT refused the Article 8 appeal. It follows that the appellant's appeal against the dismissal of her human rights appeal must also be dismissed.

31.          Moreover however, the appellant's article 8 claim, in the absence of a real risk to her of persecution or ill-treatment, the absence of a credible claim to be at risk of suicide, and having been in the UJK at all times illegally (or, if she initially had some form of leave to enter, with precarious immigration status), was, with respect, hopeless. Given that her private life was required to be given little weight and given the public interest in the maintenance of effective immigration control, in the absence of any particular factor preventing the appellant's removal, 6 years presence in the UK was on no rational view sufficient to render her removal disproportionate. To the extent that, contrary to my judgment above, the FTT's reasons were insufficient in respect of Article 8, I consider that the error is immaterial. Any rational tribunal would have been bound to reach the same conclusion as the FTT did here.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error of law and shall stand.

 

Paul Skinner

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

29 March 2025