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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2025-000064
	First-tier Tribunal No: PA/65544/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 28 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

DEPUTY UPPER TRIBUNAL JUDGE PICKERING

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

AI

(ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Miss Z Young, a Senior Home Office Presenting Officer.

For the Respondent: Mr J Holt, instructed by Fisher Stone Solicitors.

 

Heard at Phoenix House (Bradford) on 21 March 2025

 

Order Regarding Anonymity

 

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

 

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

DECISION AND REASONS

 

1.              The Secretary of State appeals with permission a decision of a judge of the First-tier Tribunal ('the Judge'), promulgated following a hearing at Bradford on 4 November 2024, in which the Judge allowed the appeal on asylum and humanitarian protection grounds.

2.              AI is a citizen of Tunisia who the Judge records was 18 years of age, who appealed a decision of the Secretary of State, dated 28 November 2023, to refuse his application for international protection made on 16 October 2022.

3.              AI entered the UK lawfully in July 2022 on a student visa as part of the school trip and claimed asylum whilst he was in the UK, on the basis a brother of the family of a person known as M had attended his home, assaulted his brother and father, and made threats to kill him. AI submitted that the family of M hold influence meaning there is no sufficiency of protection and internal relocation would not be feasible on return.

4.              The Convention reason relied upon by AI is a member of a particular social group as a victim of honour-based violence and also based upon his age.

5.              The Judge records the Presenting Officer accepting that AI's age might lead the Secretary of State to concede the particular social group point but also submitted there was no obvious link between his age and the persecution claim. The Secretary of State did not concede that the Convention point had been made out.

6.              The Judge records issues in dispute at [9 - 10] of the decision under challenge.

7.              Having analysed the evidence the Judge finds AI falls within a particular social group, and taking his case at its highest, that his fear of death at the hands of M's family could amount to persecution [14 (a)].

8.              At [14 (b)] the Judge considers whether AI fears persecution for the Convention reason found, concluding in the final paragraph of that section of the determination being satisfied on the balance of probabilities that AI has told the truth and accepting the narrative he had given accurately reflected the events that occurred.

9.              At [15 (c)] the Judge goes on to determine whether it was reasonably likely the Appellant will be persecuted for a Convention reason, concluding that to the lower standard the Judge was satisfied any fear expressed is objectively well-founded.

10.          At [15(d)] the Judge considers whether there will be a sufficiency of protection available but concludes there will not.

11.          At [15 (e)] the Judge considers whether AI could internally relocate, concluding that he could not.

12.          The Secretary of State sought permission to appeal which was granted by another judge of the First-tier Tribunal, the operative part of the grant being in the following terms:

 

1. The application is in time. The grounds assert that the Judge erred in finding that the Appellant was a member of a particular social group (PSG) and that he could not reasonably relocate internally.

 

2. In a detailed and somewhat discursive decision, the Judge's actual findings on membership of a PSG are confined to a single paragraph at 14(a) where it is said: Whilst taking into account one could in theory draw a distinction between males and females when considering whether someone lies within a particular social group that seems to me more a question for the level of risk faced. As such, it is difficult to see given the refusal's position how the Appellant could be in anything other than a particular social group.

 

3. I consider that it is arguable that the Judge has given inadequate reasons for finding, by reference to evidence, that the Appellant was a member of a PSG. Particularly, no consideration appears to have been given to the 'social visibility' test as referenced from the decision in JCK. There is an arguable error of law and permission to appeal is granted on both grounds.

 

13.          The application is opposed by AI and a Rule 24 response has been filed, dated 17 February 2025 in the following terms:

 

3. SUBMISSIONS

 

Ground 1

 

5. With ground 1 The SSHD challenges the FTT's reasons: "the FTTJ has failed to give adequate reasoning for finding that the appellant would face persecution as the member of a particular social group. While it is accepted that victims of honour-based dispute may form such a group, the FTTJ has failed to point to evidence that this would apply to a male living in Tunisia. "

 

6. The SSHD's criticisms are misplaced. Contrary to the SSHD's assertion, at [14(b)] pp 8-9 FTTJ Jepson sets out in some detail the expert evidence which confirms that males can be victims of honour violence. The FTT further considers what 1 Continuing the references to the parties as they were before the FTT Page 2 weight should be given to this evidence and reaches conclusions that were open to it pp 9-10 and pg 11.

 

7. Rightly the SSHD does not assert that the FTT's PSG finding is perverse, and that it is not possible for a male to fall victim of an honour dispute in Tunisia, and that such a person cannot fall within a PSG. The ground is merely a disagreement with a finding open to the FTT, see AE (Iraq) v SSHD [2021] EWCA Civ 948 at [32].

 

8. The FTT's approach was wholly in keeping with " Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision" per Lord Brown in South Bucks County Council v Porter [2004] UKHL 33. The principal issue to be determined here was credibility, especially in circumstances where the SSHD accepted that male honour victims could form a PSG. It was not the SSHD's position that this case should not succeed if the Appellant was found to be credible.

 

9. In granting permission FTTJ Cartin erroneously states that FTTJ Jepson's findings are confined to a single paragraph, they are not. The FTT correctly notes, in a section overlooked by FTTJ Cartin: "He is, on his case, at risk due to the relationship which took place in contravention of perceived honour.... If one accepts what the Appellant has to say, he faces death on return from M's family... I am therefore satisfied on the balance of probabilities this element of the appeal is made out. The Appellant falls within a particular social group."

 

Ground 2

 

10. Ground 2 is little more than a repetition of ground 1, again it is a reasons challenge, which when properly analysed is a disagreement with findings open to the FTT. "the FTTJ has failed to point to the appellant's situation, as claimed, as forming a distinct identity which will be perceived as different in Tunisian society. It is therefore submitted that the FTTJ has failed to give adequate reasons for finding that the appellant is a member of a particular social group. As acknowledged the appellant relies on an expert report which relies on anecdotal and unsubstantiated evidence to advance this point [14b]."

 

11. The FTT carefully analysed the expert and other evidence and gave detailed reasons as to why he accepted that evidence, not least in light of the absence of any specific COI evidence from the SSHD.

 

12. Underpinning the SSHD's grounds is the misunderstanding that a PSG has to be perceived as different by society as a whole. It does not.

 

13. FTTJ Cartin's suggestion that "no consideration appears to have been given to the 'social visibility' test" is likewise misplaced. FTTJ Jepson specifically self-directs himself in respect of JCK and social visibility at pg 3, he understood, and should be so taken by the UT, the task he faced, he considered the question of social visibility.

 

14. JCK at [14] cited by FTTJ Jepson refers to EMAP (gang violence- Convention reason) El Salvador CG [2022] UKUT 335 (IAC) at [104] which says: "This leads to the final, and for the purpose of such cases, perhaps the most important point about social visibility. The group does not need to be perceived as different by society as a whole. ... in practice the perception need only be held by some members of the society. It is today uncontroversial that members of a family can constitute a particular social group, and that they would (absent special notoriety or fame) only be perceived as being part of that group by the immediate community in which they live."

 

15. If the Appellant's case is accepted he is visible to his potential persecutor. In this instance the Appellant is immutably connected to a family where "honour" is treated as a matter of great import, and it is the relationship which is relevant as FTTJ Jepson identifies, it makes him visible to his potential persecutors. As is explained in EMAP "social visibility may be demonstrated by looking to the perceptions of persecutors".

 

16. The findings of FTTJ Jepson are concordant with this approach and cannot properly be said to be a misdirection.

 

17. The SSHD's challenge under the first 2 grounds is limited to whether the Appellant falls within a PSG, even if accepted, the SSHD rightly does not content that the Appellant would not be entitled to humanitarian protection.

 

Ground 3

 

18. This ground bears the hallmarks of the SSHD seeking a second bite at the cherry. "the FTTJ has failed to give adequate reasons for finding that the appellant, with or without his family, could not relocate to another area, or that it would be unduly harsh for them to do so. The family claim that they have attempted to relocate and have subsequently returned to their home area. It is submitted that there is insufficient evidence that the appellant's family continue to be at risk from the Hamzari family. It is therefore submitted that the FTTJ has failed to give adequate reasons for finding that in the alternative that the appellant's appeal succeeds on humanitarian protection grounds."

 

19. FTTJ Jepson provides extensive reasoning for reaching his conclusions on relocation. It was never the SSHD's position that the Appellant was bound to fail because of an internal flight option, or that even if the Appellant was believed that his claim must nevertheless fail. The issue of relocation is not even advanced by the SSHD in her RFRL or review, in those circumstances the adequacy of the FTT's reasons has to be judged against that yardstick.

 

20. The fact that the SSHD is unhappy with the FTT's acceptance of the Appellant's account is no basis for overturning the FTT's conclusions.

 

21. In UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095 at [19] Floyd LJ observed: "it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one".

 

22. Floyd LJ further relied upon Baroness Hale's dicta in AH (Sudan) Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. And at [26] citing Lord Hope in R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19, at [25]: judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined.

Discussion and analysis

 

14.          A person challenging a decision of the judge of the First-tier Tribunal must have regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30 - 31], which we have.

15.          We indicated to the parties at the outset of the hearing that our preliminary view, having read the papers, was that the Secretary of State, whilst disagreeing with the findings of the Judge in this appeal, had failed to establish material legal error in the decision of the First-tier Tribunal which allowed the appeal.

16.          Miss Young made detailed submissions in support of the Secretary of State's case, but we did not ask Mr Holt to address us in reply.

17.          It is important to consider the Judge's findings as a whole. At first blush it could be seen that the Judge appears to have made an error of law in allowing the appeal on both asylum and humanitarian protection grounds when the second ground is only available if a person is not a refugee. A close reading of the determination reveals, however, the finding on humanitarian protection is a finding in the alternative. That is clearly shown by [18] of the determination in which the Judge records being satisfied the Appellant is at risk of serious harm if returned to Tunisia and that state protection would be inadequate, and internal relocation either impossible or unjustifiably harsh.

18.          A number of the submissions made arise from the Judge's phraseology in the determination. As accepted by the Court of Appeal, different judges write their determinations in different ways, and it is often the case that findings could be phrased in a manner that allows it to be more clearly understood. That is not, however, an error of law. The test is, when reasoning is in issue, whether an informed reader is able to understand the findings made by the judge and that adequate reasons have been given explaining how those findings have been arrived at, by reference to relevant evidence.

19.          The Grounds are divided into three substantive paragraphs.

20.          Paragraph 1 asserts the Judges failed to give adequate reasons for finding the Appellant would face persecution as a member of a particular social group, and that whilst it is accepted that victims of honour-based disputes may form such a group, the Judges failed to point to evidence that this would apply to a male living in Tunisia.

21.          The first point that arises is that a judge is not required to set out each and every aspect of the evidence made available. The current approach to determination writing by judges of the First-tier Tribunal is to focus on the issues that are live in an appeal and deal with them adequately.

22.          The basis for the Judge's findings in relation this issue was not only the Appellant's own evidence but also that of the country expert. We find the Judge considered all the evidence with the required degree of anxious scrutiny and that the findings made are adequately reasoned.

23.          We find no material error made out in relation to paragraph 1 of the Grounds.

24.          Paragraph 2 asserts the Judge failed to point to the appellant's situation as forming a distinct identity which will be perceived as different in Tunisian society and therefore failed to give adequate reasons for finding that the Appellant is a member of a particular social group.

25.          This ground acknowledges the Appellant relied upon an expert report, but claims the expert relied upon what is classed as 'anecdotal and unsubstantiated evidence' to advance this point in [14b], which, in reality, is an attempt to undermine the weight the Judge gave to this evidence. The source of the Judge's findings in relation to this point is the Appellant's own evidence and the expert report which the Judge found they were able to place appropriate weight upon.

26.          We find no material are made out in relation to paragraph 2 of the Grounds.

27.          Paragraph 3 asserts the Judge failed to give adequate reasons for finding that the Appellant, with or without family, could not relocate to another area or that it will be unduly harsh for him to do so. This is, again, disagreement with the finding may by the Judge which are supported by adequate reasons.

28.          We find the analysis of the determination to be found in the Rule 24 response filed by Mr Karnik identifies a number of flaws in the Secretary of State's challenge, which we adopt.

29.          Having considered all matters in the round, we find the Secretary of State has failed to establish legal error material to the decision to allow the appeal, sufficient to warrant the Upper Tribunal interfering any further in this matter.

Notice of Decision

 

30.    The First-tier Tribunal has not been shown to have materially erred in law.

31.    The determination shall stand.

 

C J Hanson

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

25 March 2025