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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> AA038032013 & ors [2014] UKAITUR AA038032013 (5 February 2014) URL: http://www.bailii.org/uk/cases/UKAITUR/2014/AA038032013.html Cite as: [2014] UKAITUR AA38032013, [2014] UKAITUR AA038032013 |
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Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/03803/2013
AA/03805/2013
AA/03806/2013
THE IMMIGRATION ACTS
| Heard at Manchester | Date Sent |
| On 10th December, 2013 | On 5th February, 2014 |
|
| ………………………………… |
Before
Upper Tribunal Judge Chalkley
Between
MG
M
SG
(ANONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Mr C Timpson of Counsel, instructed by Amjad Malik Solicitors
For the Respondent: Mr G Harrison
The First-tier Tribunal judge having made an anonymity order, I direct that it shall continue.
DETERMINATION AND REASONS
1. The appellants are all citizens of Pakistan and are sisters. Their dates of birth are 3rd December, 1993; 12th December, 1995; and 11th February, 1997 respectively.
2. All three appellants left Pakistan in December 2007 with their mother, who claimed asylum on 10th December, 2007, with the appellants as her dependent minor children. The respondent refused the appellant’s mother’s claim for asylum on 19th July, 2010.
3. The mother appealed that decision and her appeal was dismissed by a First-tier Tribunal judge sitting at Manchester on 24th August, 2010. At that point, the appellant’s mother’s appeal rights were exhausted. The three appellants then made application for asylum on 11th November, 2012.
4. The respondent refused that application and on 8th April, 2013, gave directions for their removal from the United Kingdom. The appellants all appealed and their appeal was heard by First-tier Tribunal Judge Lever in Manchester on 5th June, 2013.
5. First-tier Tribunal Judge Lever dismissed their appeal on asylum grounds, dismissed their appeal on humanitarian protection grounds and dismissed their human rights appeals. An anonymity direction having previously been made, it was retained by First-tier Tribunal Judge Lever.
6. The appellants challenge the decision of the First-tier Tribunal and at a hearing before me on 2nd October, 2013, when Mr Timpson appeared on behalf of the appellants and Mr Harrison again appeared on behalf of the respondent, Counsel submitted that the First-tier Tribunal judge had erred by seeking to apply Secretary of State for the Home Department v D (Tamil) [2002] UKIAT 00702* (formerly known as Devaseelan), because the appellants’ mother’s asylum claim had been dismissed and that claim was based on the same facts. That, suggested Counsel, was wrong.
7. For the respondent Mr Harrison urged me to find that the representative who appeared before the First-tier Tribunal judge on behalf of the appellants had actually agreed with the judge’s approach in relying on and applying D. He told me that the appellant’s claims and their mother’s claims were the same.
8. I set aside the determination. Nothing in the decision in D means that because one appellant has been found not to be credible, a second appellant making a similar claim based on their shared experiences cannot be credible. The evidence in the two appeals is not the same. In these appellants’ appeals, all three appellants gave oral evidence and their evidence should have been carefully considered. The judge erred in failing to consider their evidence because it was, as he put it, “entirely in line with the evidence that had been presented by the mother”. The fact that Counsel may have agreed with the judge’s approach is, with very great respect, immaterial. Counsel are, occasionally, liable to make mistakes. No findings were preserved.
Adjourned hearing before me on 10th December, 2013
9. Mr Timpson again appeared to represent the appellants and Mr Harrison to represent the respondent.
10. Counsel told me that he would like to call the first appellant.
Oral evidence of MG
11. MG was called and told me that she had read a statement made for her by her solicitors in English. She told me that she understood English and that she understood the statement. She confirmed her full names, her date of birth, her address and nationality.
12. Counsel referred her to her statement and she identified her signature at the end of it. She again confirmed that she had read and understood it and told me that it had actually been read back to her in Urdu. She told me that it was true and accurate and that she wished to adopt it as part of her evidence.
13. Counsel indicated to me that he did not wish to ask any further questions. He suggested that while all three appellants had made an asylum claim to the respondent, they were actually relying on their Article 8 human rights appeal, but he was not instructed to withdraw their asylum appeals.
Cross-examination
14. Mr Harrison referred the appellant to paragraph 16 of her statement and told me that after suffering an injury she was treated at home. Her toenail fell off. She was referred to paragraph 20 and agreed that her mother had told her that she had to get out of the marriage.
15. For completeness, the witness statement of MG is reproduced in part 1 of the Appendix to this determination.
Oral evidence of SG
16. I then heard oral evidence from SG. She identified her signature at page 20 of the appellant’s bundle. She confirmed that it was read to her in Urdu and that she has read it in English since. She is studying English AS level and has English GCSE. Everything in the statement is true and accurate.
Cross-examination
17. In answer to questions put to the appellant by Mr Harrison, she confirmed that she moved into her uncle’s home which was a few streets away from her own home. She remained there for over two years and, during that time, she never saw her father. She did not attend school during that period and only ever went out of the house occasionally.
Questions put by me in order to clarify her evidence
18. The witness agreed that she had never at any stage gone to school because her father never allowed her to go to school. When she lived at the home with her father she was not allowed to attend school and when she was living at her uncle’s she did not attend school because she was frightened that her father would see her, take her home and beat her.
Re-examination
19. The witness confirmed that she remained afraid of her father even when she lived with her uncle.
20. For completeness a copy of the witness statement of SG is reproduced at part 2 of the Appendix to this determination.
Oral evidence of M
21. The witness identified her signature at the end of page 24 of the bundle and told me that her statement was true and accurate and that she had read it. She also confirmed that it had been read to her in Urdu before she signed it and that she had GCSE English and was able to read English. She again confirmed that the statement was true and accurate.
Cross-examination
22. The witness confirmed to Mr Harrison that she left Pakistan with her mother and two sisters. Her uncle helped them to leave. She has not spoken to him since and does not know where he is. She does not know where her brother is and does not really remember him.
Oral evidence of Julie Collins
23. I then heard oral evidence from Julie Collins, who had written a letter which was reproduced at page 60 of the appellant’s bundle. She confirmed that the letter was true and accurate.
Cross-examination
24. The witness said that she had known the family since they had arrived in her town three or four years ago. She had attended their mother’s appeal hearing. She was aware that the judge had found that the mother was not to be believed. She told me that she had supported the appellants. She has a particular interest in safeguarding children and had previously worked as a teacher. Over the years she has watched the girls develop and has nothing but the greatest respect for the way they have coped both at school and now at college. They have matured and changed dramatically. The girls have also helped at the charity at which Ms Collins is the chair. They are part of the volunteers. They have good relations with their neighbours.
Submissions
25. Mr Harrison told me that he relied on the reasons for refusal letter and pointed out to me that the oral evidence today was based entirely on Article 8 private life. The first appellant, MG, is over the age of 18. If I were to find that she had no ties (including social, cultural or family) with Pakistan then it would be possible for me to allow her appeal under the Immigration Rules.
26. Mr Timpson accepted that the appellant MG did have family members in Pakistan but suggested that she had no ties. He asked that further evidence should be given by her in relation to her ties with Pakistan in the light of what Mr Harrison had submitted.
Further oral evidence of MG
27. The witness MG was recalled. She told me in answer to questions put to her by her Counsel that she did have family members in Pakistan. Her father, her brother and her older sister all live in Pakistan together with her uncle. However, since coming to the United Kingdom she has had no contact with her father or uncle. Her brother is now aged 22 and she last had contact with him some eight or nine years ago before she came to the United Kingdom. She does not know where he is. Neither does she know where her uncle is now or where her sister is. She last had contact with her uncle before she came to the United Kingdom. She has not heard from her sister since being in the UK.
Further cross-examination
28. The witness explained that since she had come to the United Kingdom she tries to avoid having contact with people she knows who are from Pakistan. She has no friends in Pakistan and does not now have any contact with anybody in Pakistan since she came to the United Kingdom. She said that she does not read books relating to Pakistan or Pakistani culture because of what happened to her.
Questions put by me in order to clarify her evidence
29. The witness confirmed that at home she and her sister speak Punjabi but she said that they had always spoken Punjabi to her mother and sisters and simply continued to do so.
Submissions
30. I invited Mr Harrison to make any further submissions he wished to.
31. He told me that the appellant MG has demonstrated that she does not immerse herself in Pakistani culture or eat with and befriend people of Pakistani origin in the United Kingdom.
32. With typical frankness and fairness, Mr Harrison told me that it would be difficult for him to argue that MG did not meet the requirements of paragraph 276ADE(1)(vi), but that he could not concede the appeal.
33. At that stage both representatives told me that they were agreed that in the event that MG was found to qualify for recognition as a refugee under paragraph 276ADE(1)(vi) of the Statement of Changes in Immigration Rules HC 395, as amended, then, under Section 55 of the UK Borders Act it would be necessary to allow the appeals of SG and M, because the three appellants together form a close family unit with a shared history, each drawing support from the family unit and cannot be separated.
34. Mr Harrison made it clear that he was not conceding the appeals but in relation to MG he was in some difficulty arguing that she did not meet the requirements of paragraph 276ADE.
Determination
35. It is unfortunate that the solicitors taking the appellants’ witness statements did not prepare them with greater care. Unfortunately, large amounts of all three witness statements depend to some extent on what the author has been told by her mother. There seems little doubt that the appellant’s father did impose a harsh regime at home and only rarely allowed his daughters outside. I accept that he forbade them from attending school, as a result of which it was not until after they had arrived in the United Kingdom that they received any formal education, although they did receive some from a friend of their mothers who taught them in secret. Each of the children appears to have suffered regular beatings and appeared to have witnessed arguments between their parents as a result of which her mother was assaulted. I accept that for the last two years and three months of their time in Pakistan they lived with their uncle in his house in the same village, but that they remained indoors fearing their father would take them home and beat them.
36. The appellants also lived with their mother who appears to have done nothing to see protection from the authorities in Pakistan.
37. The appellants’ mother did not give any evidence on behalf of the appellants, and the appellants’ bundle contains no objective material relating to Pakistan. However, Mr Timpson did not address me in respect of the appellants’ asylum claims, but given what the Tribunal said in AA and Others (domestic violence - risk on return) Pakistan CG [2010] UKUT 216 (IAC), particularly at paragraphs 193, 194 and 196, I am not prepared to accept, in the absence of any submissions or evidence on the point, that Pakistani authorities are necessarily unwilling or unable to ensure that children who are the subject of physical abuse from their fathers would not be protected
38. Neither was it argued before me that the question of internal relocation would not be available to the children. They live with their mother who decided to remove them from Pakistan and bring them to the United Kingdom, several thousand miles away to a strange country. I have heard no argument or evidence which would suggest that the appellants’ mother could not alternatively have relocated with the children within Pakistan. There is no evidence to suggest that it would have been unreasonable to expect the appellants and their mother to relocate.
39. I have concluded, therefore, that there is no real risk that the appellants’ removal from the United Kingdom to Pakistan would result in the United Kingdom being in breach of its obligations under the Refugee Convention. For the same reasons I find that the appellants are not entitled to humanitarian protection.
Article 8
40. Paragraph 276ADE provides as follows:-
“276ADE (1) The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
276ADE (2) Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.”
41. In respect of the appellant MG, I find as a fact that since her arrival in the United Kingdom she has avoided contact with people who have a Pakistani background. I find that she has no friends in Pakistan and has no contact with anybody in that country. She told me that she does not read books relating to Pakistan or read anything to do with Pakistani culture. Not unnaturally, to do so causes her to be upset. I find that she has not had contact with her father or her uncle since coming to the United Kingdom. She last had contact with her older brother some eight or nine years ago before she came to the United Kingdom and has no contact with him and does not know where he is. She now no longer knows where her uncle is or where her sister is. She has not heard from her older sister since she came to the United Kingdom.
42. The appellant does speak Punjabi with her sisters and her mother at home because she has always spoken in Punjabi to her sisters and to her mother and they have always spoken in Punjabi to her.
43. Bearing in mind the advice given by the Tribunal at paragraphs 123 and 124 of Ogundimu (Article 8 - new Rules) Nigeria [2013] UKUT 60 (IAC). I have concluded that the appellant MG has no ties (including social, cultural or family) with Pakistan. As with the appellant in Ogundimu, she is now a stranger to the country, its people and way of life.
44. MG is 20 years of age. I have concluded that she does qualify for recognition as a refugee under paragraph 276ADE(1)(vi) of the Immigration Rules. I allow her appeal under the Immigration Rules.
45. The second and third appellants are under the age of 18 years. They do not qualify for recognition as refugees under the Immigration Rules. I therefore consider their appeals under normal Article 8 jurisprudence.
The Law
46. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides for respect for a person’s private and family life, their home and correspondence. The appellant has to show that the subject matter of the Article 8 subsists and that the decision of the respondent will interfere with it. If he does so, it is for the respondent to show that the decision is in accordance with the law, that it is one of the legitimate purposes set out in Article 8(2) in this case for the economic well-being of the country, for the prevention of disorder or crime and for the protection of the rights and freedoms of others, and that it is necessary in a democratic society, which means that it must be proportionate.
47. At paragraph 17 of Razgar v Secretary of State for the Home Department [2004] UKHL 27, Lord Bingham of Cornhill said this:
“17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”
48. I am satisfied that the appellants M and SG do enjoy a family life with each other and with their sister MG and with their mother. I am also satisfied that they each enjoy a private life in the United Kingdom. The respondent’s decision will have consequences of such gravity as to potentially engage the operation of Article 8, the threshold for which is not especially high (see paragraph 28 of the judgment of Sedley LJ in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ.
49. I remind myself that the appellants are still children.
50. The interference is in accordance with the law and is necessary in a democratic society for the economic wellbeing of the country, for the prevention of disorder or crime and for the protection of the rights and freedoms of others. The question is whether or not such interference is proportionate.
51. Not only do I have to bear in mind that it is necessary to look at the family as a whole (see Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 37) but I must, of course, bear in mind in considering each of these appellants’ Article 8 appeals that they are both minors and that I must have regard to the best interests of the children. In doing so, I bear in mind paragraph 29 of the opinion in ZH (Tanzania) [2011] UKSC 4. There are no considerations inherently more significant than the interests of children.
52. I have allowed the appeal on MG under the Immigration Rules. I am satisfied that each of these appellants form part of a family unit with a shared history of abuse at the hands of their family and that each of them have drawn support from the family unit. I am satisfied that it cannot be said to be in the best interests of these two appellants for them to be separated from MG.
53. Both appellants have, like their older sister, taken serious steps towards their integration and assimilation of both British culture and its way of life. They have made remarkable progress in their education, bearing in mind that during the early part of their life they did not attend any formal schooling. I do not believe that these appellants could or should be separated from their sister MG and find that it would be wholly disproportionate for the Secretary of State to do so.
Upper Tribunal Judge Chalkley
ABOVE REFERRED TO.