Gender-Specific Persecution And Harmful Traditional Practices: Is There Some Chance of Obtaining Asylum in the UK By Reference to Applicable Caselaw?

Women seeking to claim protection  in the United Kingdom arising out  of  forms of persecution  that are gender – specific such as female genital mutilation, domestic violence, crimes of honour have  to overcome  several hurdles in order to obtain  that protection in the UK.

Continue reading this Article where Alice provides an overview of the cases concerning Gender-Specific Persecution.

As a matter of course, an assessment on credibility by the Home Office or the Tribunal  will be  relevant and it may be  that  where credibility is in serious issue, it is from that stage that an asylum claim may not  manage to rise  successfully  off the ground.  In addition to credibility, a convention reason  needs to be established. Where a convention reason can be shown, and in this  particular context,  reliance usually being sought to be  placed upon being a member of a particular social group,  issues of risk of harm, having a well founded fear of persecution  then  come into play, including  considerations of availability  of state protection.  Even where all this is accepted,  being able to  successfully  relocate within the country of origin  may serve  to  defeat such a claim.

The current Home Office Policy Guidance, Gender Issues In the Asylum Claim,  accepts that there are many forms of harm that are more frequently or only used against women. These can occur in the family, the community, or at the hands of the State. They include, but are not limited to:

  •  marriage-related harm (e.g. forced marriage);
  • violence within the family or community (e.g. honour killings) ;
  • domestic slavery;
  • forced abortion;
  • forced sterilization
  • forced prostitution;
  • trafficking;
  • female genital mutilation;
  • sexual violence and abuse; or
  • rape.

Early marriage( a practice of giving away girls  for marriage at a very young age); FGM; honour based violence( where men kill women or girls in the name of family ’honour’,  for having sex outside marriage, or refusing an arranged marriage for example) are harmful traditional practices perpetrated primarily against women and girls.

Gender may inform an assessment of whether one of the five Convention grounds does apply i.e. race, religion, nationality, membership of a particular social group or political opinion. Many women who are persecuted will be covered by other Convention grounds i.e. race, religion, nationality and political opinion, whether actual or imputed. In some cases gender may be a factor in recognising membership of a particular social group or an identifying characteristic of such a group

Discrimination may amount to persecution in countries where serious legal, cultural or social restrictions are placed upon women.

Customs and traditions which are potentially harmful to women may be contrary to the law in some countries but the State may be unable or unwilling to enforce the law, and recourse to protection may be more difficult for women than for men.

LEADING CASELAW

In Shah & Islam [1999] UKHL 20 it was found that women in Pakistan constituted a particular social group. This was because women shared the same immutable characteristic of gender, they formed a distinct group in society as evidenced by widespread discrimination in their fundamental rights and the state did not give them adequate protection as they were not seen as entitled to the same human rights as men.

In Fornah [2006] UKHL 46,  their Lordships held that in seeking to establish refugee status under the Refugee Convention, where a well-founded fear of persecution was based on membership of a particular social group, a claimant had to show that the relevant group consisted of persons who shared, other than their risk of persecution, a common characteristic that was innate or otherwise fundamental to identity, conscience or the exercise of human rights or who were perceived by society as a group. In Fornah, in allowing an appeal against the Court of Appeal’s findings, the Lords did not consider that ‘young women in Sierra Leone’ constituted a particular social group (PSG) but accepted that ‘uninitiated’ or ‘intact’ women in Sierra Leone did form a PSG.

CONSIDERATIONS OF RELEVANT COUNTRY GUIDANCE CASELAW NECESSARY

Where an asylum claim is refused, it is most usually the case that a lodged appeal  will be met  by existing  applicable country guidance caselaw  decided by the Upper Tribunal which will  either need  to be relied  upon, or  where not favourable,  distinguished- AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091 states in its headnote:

5. Before the Tribunal will take seriously a challenge to the historic validity of a Tribunal country guidance case, it would need submissions which seek to adduce all relevant evidence, for or against, the proposed different view……………”

Therefore, whether during the course of consideration of the asylum claim or at appeal, it is important to have regard to the considerations and reasoning of the Upper Tribunal in relevant country guidance caseaw in relation to each form of persecution relied upon as being gender – specific.

  1. TRAFFICKING – FIRST TIER JUDGES CAN CONSIDER EVIDENCE ABOUT TRAFFICKING IN APPEALS BEFORE THEM

AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469:

The question in the appeal was  the extent to which (if at all) judges of the Immigration and Asylum Chamber should regard as conclusive decisions of the “Competent Authority” determining that an appellant before them has or has not been a victim of trafficking.

On 17th November 2010 the Secretary of State refused the Appellant’s  claim to asylum on the basis that he had no well-founded fear of persecution if returned to Afghanistan; on 22nd November the Secretary of State made a decision to remove him, thus giving rise to an immigration decision which the Appellant  was able to appeal pursuant to section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002. On the same day a decision was made that there were reasonable grounds to think that  he  had been a victim of trafficking. This meant that he could not be removed for at least 45 days while the UKBA as the Competent Authority made a final assessment.

Once the decision of the Competent Authority was available, the Appellant’s appeal against the refusal of asylum was listed and heard in Manchester on 8th April 2011 by the First Tier Tribunal.  The judge permitted himself to observe that the Authority’s conclusion that the Appellant  had not been a victim of trafficking was “astonishing”  but in the end he only considered matters which he considered were germane to the asylum and removal appeal. He then dismissed the appeal on the basis that  the Appellant  had no well-founded fear of persecution if he was returned to Afghanistan.

On 29th July 2011, the Appellant  was given permission to appeal to the Upper Tribunal on the basis that it was arguable that the  First Tier Judge  had not made it clear whether he accepted that  that the Appellant  had been trafficked to the UK and subjected to forced labour after his arrival.  On 12th April 2012,  an Upper Tier Tribunal Judge  decided that the absence of any finding on that issue did not matter since the First Tier Judge  had no jurisdiction to review the trafficking decision of the UKBA. There was thus no error of law in   his decision. Permission to appeal to the Court of Appeal was given by Beatson LJ who identified the important point of principle for the purpose of what is,  a second appeal as being:- “whether the question of making a finding in relation to trafficking is one where the Secretary of State’s decision can only be challenged by judicial review or whether it falls within the scope of an appeal.”

It was submitted on behalf of the Appellant  that, on appeal to the First Tier Tribunal against a decision to remove the Appellant, the Appellant was not confined to arguments about asylum but could make any argument he wished which was relevant to the decision to remove. One such argument he should be permitted to raise was that he was (or had been) a victim of trafficking. The First Tier Tribunal could not (or should not) refuse to entertain such evidence because it was relevant to the decision to remove which was the immigration decision which was being appealed pursuant to section 82(2)(g) of the 2002 Act.

The Court of Appeal stated that if the conclusive decision of the Competent Authority was that the Appellant had indeed been a victim of trafficking, it would be very odd if the First Tier Tribunal could not take that into account but had to dismiss an appellant’s appeal against a decision to remove without remitting the matter to the Secretary of State to take into account the decision that such appellant had indeed been a victim of trafficking and may need the assistance required by the Convention. If the First Tier Tribunal is entitled to take into account a decision that an appellant is (or has been) a victim of trafficking it seemed odd that, if a perverse decision has been reached that an appellant has not been a victim of trafficking, the Tribunal cannot consider whether the facts of the case do, in fact, show that the appellant was a victim of trafficking.

SSHD v Abdi [1996] Imm. A.R. 148, is authority for the proposition that a failure by the Secretary of State to apply her own policy is an error of law in the sense that she will have failed to take a relevant consideration into account. If in fact the Appellant  had been trafficked but the Secretary of State ignored that fact she would have failed to apply the relevant policy in relation to victims of trafficking. The mere fact that the Competent Authority had made a decision which on analysis was  perverse cannot prevent the First Tier Tribunal judge from considering the evidence about trafficking which is placed before him; nor could  it, in  the Court’s  judgment, be relevant that no judicial review proceedings had  been taken by the applicant in respect of the Competent Authority’s decision. The First Tier Tribunal  Judge should consider the matter for himself.

It seemed to the Court of Appeal that First Tier Tribunal judges are competent to consider whether the Secretary of State has complied with her policy in relation to trafficking; if asked to consider that question, they should then decide whether she has in fact complied with her policy since that it is (or may be) relevant to her removal decision.

In this context, it was  important to be aware that a decision to refuse asylum is not itself an immigration decision appealable pursuant to section 82(2) of the 2002 Act (any more than a trafficking decision is such a decision). The relevant immigration decision is the decision to remove the appellant under section 10 of the Immigration and Asylum Act 1999 (see s.82(2)(g) of the 2002 Act). It was  in reaching the decision to remove that the Secretary of State must consider relevant matters including (where relevant) whether an applicant for asylum is a victim of trafficking. No doubt, if a conclusive decision has been reached by the Competent Authority, First Tier Tribunals will be astute not (save perhaps in rare circumstances) to allow an appellant to re-run a case already decided against him on the facts. But where, as the present case, it was  arguable that, on the facts found or accepted, the Competent Authority had reached a decision which was not open to it, that argument should be heard and taken into account.

The Court of Appeal allowed the appeal and ordered remission to the First Tier Tribunal for it to consider whether, in the light of the evidence about trafficking, it should allow the Appellant’s  appeal and remit the matter to the Secretary of State for further consideration.

  1. TRAFFICKED WOMEN FROM ALBANIA – A POSITIVE DECISION – ALLOWED ON ASYLUM GROUNDS

AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC), provides in its headnote

a) It is not possible to set out a typical profile of trafficked women from Albania:trafficked women come from all areas of the country and from varied social backgrounds.

b) At its worst the psychological damage inflicted on a victim of trafficking can lead to difficulties in reintegrating into Albanian society and has implications on whether or not it is possible for the victim of trafficking, should she fear persecution in her own area, to relocate.

c) Much of Albanian society is governed by a strict code of honour which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return but also will affect their ability to relocate internally. Those who have children outside marriage are particularly vulnerable. In extreme cases the close relatives of the trafficked woman may refuse to have the trafficked woman’s child return with her and could force her to abandon the child.

d) Those that see themselves outside society, for example, divorced or abandoned women, or others who wish to live abroad, may seek out traffickers in order to facilitate their departure from Albania and their establishment in prostitution abroad. Although such women are not “trafficked women” in the sense that they have not been abducted against their will, there is likely to be considerable violence within the relationships and the psychological affect of that violence may lead to a situation where the pressures which they are under and the lack of freedom they are under means that such women should be treated as trafficked women.

e) The Albanian Government and authorities are taking steps to protect trafficked women who return but such steps are not always effective. When considering whether or not there is a sufficiency of protection for a trafficked woman who is to be returned her particular circumstances must be considered. Not all trafficked women returning to Albania will be unable to access the arrangements and facilities available to enable successful re-integration.

f) Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following: 1)The social status and economic standing of the trafficked woman’s family. 2) The level of education of the trafficked woman or her family. 3) The trafficked woman’s state of health, particularly her mental health. 4) The presence of an illegitimate child. 5) The area of origin of the trafficked woman’s family. 6) The trafficked woman’s age

  1. TRAFFICKED WOMEN FROM MOLDOVIA- POSITIVE OUTCOME- ALLOWED ON ASYLUM GROUNDS

SB (PSG – Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 00002,provides in its headnote:

1.If individuals share a common background which is an immutable characteristic they cannot change and which defines the group by giving it a distinct identity in the society in question which has nothing to do with the actions of the future persecutors, then the group exists independently of the feared future act(s) of persecution. It is not necessary to show general discrimination as an identifying characteristic of the group

2.“Former victims of trafficking” and “former victims of trafficking for sexual exploitation” are capable of being members of a particular social group within regulation 6(1)(d) because of their shared common background or past experience of having been trafficked.

3.The word “and” in regulation 6(1)(d) of the Protection Regulations should be given its natural meaning.

4.In the context of Moldovan society, a woman who has been trafficked for the purposes of sexual exploitation is a member of a particular social group within regulation 6(1)(d), the particular social group in question being “former victims of trafficking for sexual exploitation”. Whether a particular individual is at risk of persecution for membership of that group needs to be decided on the facts of the case

  1. TRAFFICKED WOMEN FROM NIGERIA – NEW COUNTRY GUIDANCE AWAITED

PO (Trafficked Women) Nigeria CG [2009] UKAIT 00046, was added to Upper Tribunal list of reported cases on 23 November 2009. The determination was removed from the Country Guidance list on 22 February 2011- see PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132. Paragraphs 191-192 remain as interim guidance pending further country guidance from the UTIAC:

Ability and Willingness of the Nigerian Authorities to offer Protection to Victims of Trafficking

191.Our consideration of the background materials clearly demonstrates to us that in general the government of Nigeria is both able and willing to discharge its own duty to protect its own nationals from people traffickers. In particular:

(a)The Danish Information Service Report: The Protection of Victims of Trafficking in Nigeria: a Fact Finding Mission to Lagos, Benin City and Abuja, 9/26 September 2007 (April 2008) points out that the government of Nigeria have recognised the problem of traffickers and, since 2003, the legal and institutional foundation for combating trafficking and, equally important, support for victims of trafficking, have been in place in Nigeria.

(b)The National Agency for the Prohibition of Traffic in Persons and other related matters (NAPTIP) is the principal organisation created by the Nigerian government to combat trafficking. The Trafficking in Persons (Prohibition) Law Enforcement Administration Act, 2003 established NAPTIP and was enacted as a direct result of Nigeria wishing to fulfil its international obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

©NAPTIP’s own Legal and Prosecution Department were said in the April 2008 report, to have concluded six cases and another five were said to be pending. 58 victims of trafficking have been rehabilitated, while another 24 were waiting rehabilitation. We accept that with more funds, NAPTIP could do more to help victims, but the same could be said of any government agency with a finite budget.

(d)The US State Department Report suggests that whilst Nigeria is not complying with minimum standards, it is “making significant efforts” to do so and has “demonstrated a solid commitment to eradicating trafficking”. It also spoke of NAPTIP making solid efforts to investigate and prosecute trafficking cases, although the numbers of convicted traffickers remained low. There are clearly several reasons for that, but not, on the evidence before us, any lack of governmental effort or desire.

Risk to Victims of Trafficking in being Re-trafficked on Return to Nigeria

192.It must be born in mind, however, that a claimant may still have a well-founded fear of persecution if she can show that the Nigerian authorities know or ought to know of circumstances particular to her case giving rise to his fear, but are unlikely to provide the additional protection her particular circumstances reasonably require. To that end:

(a)A very careful examination of the circumstances in which the victim was first trafficked must be undertaken and careful findings made. If a victim has been told that she is required to earn a particular sum of money (“target earnings”) for the trafficker or gang, before being free of any obligation to the trafficker or gang, then, if the victim should escape before earning the target sums, there may well be a risk to the victim that on return to Nigeria she may be re-trafficked if found. The extent of the risk of the trafficking will very much depend on the circumstances in which the victim was originally trafficked

(b)It must always be remembered that within Nigeria there are gangs of people traffickers operating who generate enormous sums of money from their activities. The evidence seems to us to be clear that where a victim escapes the clutches of her traffickers before earning the target earnings, then the traffickers are very likely to go to extreme lengths in order to locate the victim or members of the victim’s family, to seek reprisals.

©In the absence of evidence that a trafficked victim has been trafficked by an individual, it should be borne in mind that it is likely that the trafficking will have been carried out by a collection of individuals, many of whom may not have had personal contact with the victim. Within trafficking gangs, individual members perform different roles. One might, for example, be a photographer who takes the photograph which is used within the victim’s passport, whether or not the passport is a genuine one. One gang member may, for example, be a forger who is involved in the preparation of false passports or other documents for use by the victim; one might be a corrupt police official, or a border guard, whose role is to assist in facilitating the victim’s passage in some way.  Gang members may perform any number of different roles but it is essential to bear in mind that if a victim has been trafficked by a gang of traffickers, as opposed to a single trafficker, then the risk of re-trafficking may be greater for someone who escapes before earning the target earnings set by the trafficker,  because the individual gang members will have expected to receive a share of the target sum and will, therefore, be anxious to ensure that they do receive that share or seek retribution if they do not”.

  1. FGM AND WOMEN FROM THE GAMBIA- A POSITIVE OUTCOME- ALLOWED ON ASYLUM GROUNDS

K and others (FGM) The Gambia CG [2013] UKUT 00062(IAC), provides in its headnote:

1.FGM has been practised upon about three quarters of the female population of The Gambia historically. The most recent scientific evidence, based on data from 2005, showed no significant change in its incidence.  There are ongoing campaigns, principally by GAMCOTRAP (Gambia Committee on Traditional Practices Affecting the Health of Women and Children), aiming to reduce and eventually to eliminate FGM. There has been some increase in published opinion in the Gambia against FGM, and there have been local declarations of renunciation, but there has been no scientific evaluation of GAMCOTRAP’s effectiveness in establishing a decline

2.Incidence of FGM varies by ethnic group. Within the four main ethnic groups there are subgroups, within which the incidence may vary – see the table below. In no ethnic group is the practice universal; in some ethnic groups the practice is absent. Ethnic groups are thoroughly interspersed. The country is small and highly interconnected. (Where reference is made to ethnic group we include sub-groups save where specified)

3.The evidence as at November 2012 falls short of demonstrating that intact females in The Gambia are, as such, at real risk of FGM. The assessment of risk of FGM is a fact sensitive exercise, which is likely to involve ethnic group, (whether parental or marital), the attitudes of parents, husband and wider family and socio-economic milieu

4.There are significant variables which affect the risk

(i) the practice of the kin group of birth: the ethnic background, taking into account high levels of intermarriage and of polygamy;

(ii) the education of the individual said to be at risk;

(iii)   her age;

(iv) whether she lived in an urban or rural area before coming to the UK;

(v) the kin group into which she has married (if married); and

(vi)   the practice of the kin group into which she has married (if married).

Also relevant is the prevalence of FGM amongst the extended family, as this may increase or reduce the relevant risk which may arise from the prevalence of the practice amongst members of the ethnic group in general.

5.In assessing the risk facing an individual, the starting point is to consider the statistical information currently known about the prevalence of the practice within the ethnic group that is the relevant ethnic group in the individual’s case, as follows:

    1. If the individual is unmarried and given that ethnicity is usually taken from the father in The Gambia, the relevant ethnic group is likely to be the ethnic group of the father.
    2. If the individual is married to a man from an ethnic group that is different from her father’s ethnic group, then the relevant ethnic is the ethnic group of the husband

The statistics from which the prevalence of the practice of FGM within the ethnic groups in the Gambia is drawn, vary considerably given the lack of detailed research and analysis undertaken in The Gambia. From the material before the Upper Tribunal, those statistics indicate as follows:

Ethnic group Prevalence of FGM/C
Mandinka May be as high as 80-100%
Fula (Overall) 30%
Hobobehs (sub group of Fula) 0%
Jama (sub group of Fula) 0%
Toranks, Peuls, Futas, Tukuleurs, Jawarinkas, Lorbehs, Ngalunkas and Daliankos (sub groups of Fula) Practise but % unknown
Serehule May be as high as 100%
Njefenjefe (within the Serehule ethnic grouping) 0%
Niumikas (within the Serehule ethnic grouping) Practise but % unknown
Jola & Karonikas 90 to 100%
Jola Foni Practise but % not known
Jola Casa 0%
Others Variable
Wolof – those who migrated from Senegal Oriental 0%
Wolof – those who migrated from Sine Saloum Practise but % not known

 

6.The next step is to consider the various other factors mentioned in paragraph 4 above as some may increase the risk, whilst others may reduce the risk. Whist each case will turn on it own facts, the following are of general application

    1. In the case of an unmarried woman, parental opposition reduces the risk. In the case of a married woman, opposition from the husband reduces the risk. If the husband has no other “wives”, the risk may be reduced further. However, it should be borne in mind that parental/spousal opposition may be insufficient to prevent the girl or woman from being subjected to FGM where the extended family is one that practises it, although this will always be a question of fact.
    2. If the prevalence of the practice amongst the extended family is greater than the prevalence of the practice in the ethnic group in question, this will increase the risk. Conversely, if the prevalence of the practice amongst the extended family is less than the prevalence of the practice in the ethnic group in question, this will reduce the risk.
    3. If the woman is educated (whether she is single or married), the risk will reduce.
    4. If the individual lived in an urban area prior to coming to the United Kingdom, this will reduce the risk. Conversely, if the individual lived in a rural area prior to coming to the United Kingdom, this will increase the risk.
    5. The age of a woman does not affect the risk measurably; it is an issue upon marriage. Amongst the Fula, FGM has been carried out on babies as young as one week old. The average age at which FGM is carried out appears to be reducing and this may be due to concerns about the international pressure to stop the practice. Although there are statistics about the average age at which FGM is carried out on girls and women for particular ethnic groups, the evidence does not show that,in general, being above or below the relevant average age has a material effect on risk. It would therefore be unhelpful in most cases to focus on the age of the girl or woman and the average age at which FGM is carried out for the ethnic group of her father (if unmarried) or that of her husband (if married).

7.Thus, it is possible to arrive at a conclusion that the risk faced by an individual is less than, or more than, the rate of incidence of FGM in the ethnic group of the individual’s father (if unmarried) or her husband (if married). The rate of incidence of FGM in an ethnic group must therefore be distinguished from the degree of likelihood of infliction on an individual against her will or against the will of her parents.  Some individuals from ethnic groups with a high incidence may not be at risk, while some individuals from ethnic groups with a low incidence may be at risk.

8.State protection: FGM is not specifically criminalised in The Gambia although it may be covered by the existing criminal law on assault or in The Gambia’s Children’s Act 2005. However, there are no known cases of prosecutions under the general criminal law or under the 2005 Act. There is no reliable evidence to suggest that a female who may be at real risk of FGM can avail herself of effective State protection or that her father or husband could invoke such protection on her behalf

9.Internal flight: As a general matter, an individual at real risk of FGM in her home area is unlikely to be able to avail herself of internal relocation, although this is always a question of fact. Cogent reasons need to be given for a finding that the individual would be able to relocate safely, especially given the evidence that ethnic groups are thoroughly interspersed, the country is small and ethnic groups in different parts of the country are highly interconnected.

  1. FGM AND WOMEN IN SUDAN-POSITIVE OUTCOME- ALLOWED ON ASYLUM GROUNDS

FM (FGM) Sudan CG [2007] UKAIT00060, provides in its headnote:

Significant action is being taken in Sudan, both within government and by NGOs, to combat the practice of female genital mutilation in all its forms. Legal sanctions are, however, unlikely to be applied where a woman has been subjected by her family to FGM.

There is in general no real risk of a woman being subjected to FGM at the instigation of persons who are not family members. As a general matter, the risk of FGM being inflicted on an unmarried woman will depend on the attitude of her family, most particularly her parents but including her extended family. A woman who comes from an educated family and/or a family of high social status is as such less likely to experience family pressure to submit to FGM. It is, however, not possible to say that such a background will automatically lead to a finding that she is not at real risk.

The risk of FGM from extended family members will depend on a variety of factors, including the age and vulnerability of the woman concerned, the attitude and whereabouts of her parents and the location and “reach” of the extended family.

If a woman’s parents are opposed to FGM, they will normally be in a position to ensure that she does not marry a man who (or whose family) is in favour of it, regardless of the attitude of other relatives of the woman concerned.

And the following paragraphs:

“(4) Nature of Particular Social Group in relation to FGM

144.In the present case, the respondent accepted that, if there were a real risk of the third and fourth appellants being subjected to FGM, the Refugee Convention would be engaged, having regard to the opinions of the House of Lords in K and Fornah.  It is nevertheless necessary to categorise the nature of the particular social group into which the appellants fall.  Although the position of women in Sudan appears to have markedly improved in recent years, the evidence as a whole shows that they are the subject of societal discrimination (see paragraphs 119 and 120 above).  Such a conclusion also flows from the evidence of Ms Maguire to the Tribunal in HGMO, as analysed in paragraph 305 of the determination in that case.  The reason why Ms Maguire in effect did not consider that a Sudanese female returnee would be at real risk of persecution on return, was that such a returnee would be regarded by the authorities merely as an adjunct of her husband.  If that husband was a person in whom the authorities had a significant adverse interest, then the female returnee would suffer serious harm.

145.For present purposes, the Tribunal considers that women in Sudan constitute a particular social group and, for the reasons given by the House of Lords in K and Fornah, the infliction of FGM on a Sudanese woman would be persecution for a Refugee Convention reason”.

161.The Tribunal does not consider that any risk arises from the attitude of any future husband of either of the appellants (see paragraph 143 above). Given the first appellant’s abhorrence of FGM, any infliction of it upon either of her daughters is, we find, reasonably likely to have so profound an effect upon the first appellant as to amount to the infliction on her of persecutory harm.  In the light of our finding as to the nature of the particular social group in the present case, it follows that the first appellant is at real risk of persecution for a Refugee Convention reason (Katrinak v Secretary of State for the Home Department [2001] EWCA Civ 832; recital (27) to Council Directive 2004/83/EC).

162.There has been no submission to the effect that the second and fifth appellants (who are male) would be reasonably likely to suffer in the same way, if their sisters were subjected to FGM. The second and fifth appellants, accordingly, are not at real risk of persecution on return to Sudan.

(c) Article 3 ill-treatment

163.In the light of the Tribunal’s findings, the first, third and fourth appellants are at real risk on return of treatment that would be contrary to article 3 of the ECHR. For the reasons set out above, the second and fifth appellants would not be at real risk of such treatment.

176.The determination of the original Tribunal contains a material error of law. This Tribunal accordingly substitutes for it a decision:-

(i)         allowing the appeals of the first, third and fourth appellants on asylum grounds and on human rights grounds (article 3);

(ii)        allowing the appeals of the first, second and fifth appellants on human rights grounds (article 8) and because the decision of the respondent is not in accordance with the law”.

  1. FGM AND WOMEN FROM KENYA A POSITIVE OUTCOME- ALLOWED ON ASYLUM GROUNDS

VM (FGM-risks-Mungiki-Kikuyu/Gikuyu) Kenya CG [2008] UKAIT 00049, provides in its headnote:

1.It is important to determine whether a Kenyan claimant who fears FGM belongs to an ethnic group amongst which FGM is practised. If so, she may be a member of a particular social group for the purposes of the 1951 Refugee Convention

2.Uncircumcised women in Kenya, whether Gikuyu/Kikuyu or not, are not as such, at real risk of FGM.

3.There is evidence that the Mungiki organisation seeks to impose FGM and other forms of violence, on women and children other than those who have been initiated into their sect. In particular, such women and children include the wives, partners, children and other female family members of those men who have taken the Mungiki oath. Insufficient protection is available from the Kenyan authorities for such persons.

4.It may be possible for a woman not wishing to undergo FGM herself, or not wishing her child to do so, to relocate to another community which does not follow the practice of FGM.

5.In general:

  • those who practise FGM are not reasonably likely (particularly in urban areas), to seek to inflict FGM upon women from ethnic groups or sub-groups which do not practise FGM;
  • a woman or her child who comes from, or becomes connected by marriage, partnership or other family ties, to an ethnic group (or sub-group) where FGM is practised will be at real risk only if the evidence shows that she is reasonably likely to be required by her parents, grandparents, or by others in a position of power and influence over her, to undergo FGM or allow her child to undergo it.

6.Internal relocation may be available in Kenya to a woman who is at real risk of forced FGM in her home area if the evidence shows: (i) she is not reasonably likely to encounter anyone in the place of relocation who would be in a position of power and influence over her and who would use that power and influence to require her to undergo FGM, or would cause her presence in the place of relocation to become known to such a person or persons (e.g. the Mungiki); and (ii) that the relocation is reasonable taking into account all the relevant factors including the religious and cultural context, the position of women within Kenyan society and the need for kinship links in the place of relocation in order to sustain such movement successfully. In particular, in the case of a woman from a rural area in Kenya, internal relocation to some other region or urban centre will not be available unless her circumstances are such that she will be able to survive economically (see Januzi v Secretary of State for the Home Department and others [2006] UKHL 5).

7.This guidance supersedes that in FK (FGM – Risk and Relocation) Kenya CG [2007] UKAIT 00041

  1. FGM AND WOMEN FROM SLOMALIA-POSITIVE FINDINGS

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC), provides in its headnote:

“Female genital mutilation

16) The incidence of FGM in Somalia is universally agreed to be over 90%. The predominant type of FGM is the “pharaonic”, categorised by the World Health Organisation as Type III. The societal requirement for any girl or woman to undergo FGM is strong. In general, an uncircumcised, unmarried Somali woman, up to the age of 39, will be at real risk of suffering FGM.

  17)  The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others (particularly relatives) will at some point inflict FGM on her.

And the following paragraphs:

“557.It is, of course, established law that FGM “constitutes treatment which would amount to persecution within the meaning of the Convention”, whatever form of it is practised and that, having regard to the sexually discriminatory nature of the practice, its infliction upon a woman engages the Refugee Convention by reference to the “particular social group” category (K and Fornah v Secretary of State for the Home Department [2006] UKHL 46).  Notwithstanding the interesting evidence about Somali men complying with the decisions that women make, we can see no reason to refuse to find the relevant PSG in Somalia, when it has been found in all the other African countries in which the Tribunal or the higher courts have had occasion to examine the matter.

558.Likewise, we have no difficulty in finding that a Somali mother may suffer persecution and treatment in breach of her own Article 3/15(b) rights if her daughter is subjected to FGM against the mother’s wishes. As the AIT found in FM (FGM) Sudan CG [2007] UKAIT 00060:-

“Given the first appellant’s abhorrence of FGM, any infliction of it upon either of her daughters is, we find, reasonably likely to have so profound an effect upon the first appellant as to amount to the infliction on her of persecutory harm.  In the light of our finding as to the nature of the particular social group in the present case, it follows that the first appellant is at real risk of persecution for a Refugee Convention reason (Katrinak v Secretary of State for the Home Department [2001] EWCA Civ 832: Recital 27 to Council Directive 2004/83/EC).”

559.This point is also borne out in the UNHCR’s Guidance Note on Refugee Claims Relating to Female Genital Mutilation (May 2009):-

“11.   The parent could nevertheless be considered a principal applicant where he or she is found to have a claim in his or her own right.  This includes cases where the parent will be forced to witness the pain and suffering of the child, or risk persecution for being opposed to the practice.

  1. Even where the parents have been in the country of asylum for some time, a well-founded fear on behalf of the child or because of the parents’ own opposition to FGM can arise upon the birth of a daughter post-flight. The fact that the applicant did not demonstrate this conviction or opinion in the country of origin, nor act upon it, does not itself mean that a fear of persecution is unfounded, as the issue would not necessarily have arisen until then.  The birth of a daughter may, in these circumstances, give rise to a sur place claim.  If it is held that the opposition or fear of FGM is a mere artifice for the purpose of creating grounds for asserting a fear of persecution, a stringent evaluation of the well-foundedness of the fear is warranted.  In the event that the claim is found to be self-serving, but the claimant nonetheless has a well-founded fear of persecution, international protection is required.”
  2. The prevalence of FGM in Somalia is, we find, so great that an uncircumcised, unmarried Somali woman, up to age 39, will in general be at real risk of suffering FGM. The risk will obviously be at its greatest where both parents are in favour of FGM. Conversely, where both parents are opposed to it, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand what are, as a general matter, strong societal pressures (from both men and women) in Somalia for the procedure to be carried out on their daughter. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case (such as living in a place where – exceptionally – an anti-FGM stance has taken hold) the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others (particularly relatives) will at some point inflict FGM on her”.

 

  1. FGM AND WOMEN FROM THE IVORY COAST – DISMISSED ON THE FACTS OF THE  CASE

DI (IFA – FGM) Ivory Coast CG [2002] UKIAT 04437:

The Appellant’s claim, was that on her return to Ivory Coast, she would be forced to undergo FGM even though she was 24 years old and she could not  relocate in  the Ivory Coast.  This was because her mother who was leader of the group that performs FGM, had threatened to kill her.  Her mother’s honour  was at stake.

The Tribunal was of the view that the Adjudicator rightly looked at the Appellant’s evidence in the context of the objective evidence and properly accepted that FGM was prevalent and customary.

The Tribunal had two main issues to consider.  The first was  whether the Appellant would  be offered adequate protection against her mother and the people in Yopougon if she was forced to undergo FGM;  Secondly whether she had an internal flight option.

The Tribunal stated that as regards protection, the new law, concerning crimes against women, enacted in December 1998, specifically forbade FGM and made those who perform it subject to criminal penalties of imprisonment for up to five years and a fine. Although eradicating FGM was proving an uphill struggle, the objective evidence indicated that the authorities would use the law to prosecute practitioners if they were brought to their attention. The Tribunal did not find that the practitioners in her village could be considered as agents of persecution because the enactment of the law in December 1998, showed that the government did not condone the practice.  Therefore the law was there to protect the Appellant and  the Tribunal  found that the authorities would be willing and able to use the law to protect her.

The claim that the Appellant could not relocate in Ivory Coast was  not sustainable. There were also credibility issues to contend with.

As to the age range for circumcision being high, the objective evidence leant towards circumcision being performed on young girls or at puberty as part of the right of passage. The Tribunal stated that it might  be that in this Appellant’s case it could still be performed even though she was  an adult, has a child and was living with her partner.  Nevertheless, the fact remained that the Appellant was able to avoid circumcision while she was in Ivory Coast and the Tribunal had not heard any cogent arguments as to why she could  continue to do so.  The  Tribunal find it incredible that the Appellant’s mother would threaten to kill her as a matter of honour.  According to the evidence, when her other daughter was bleeding during circumcision, she called the uncle with whom the Appellant was living, as an emergency, in order to take the daughter to the hospital.  This would suggest an attempt to save her daughter’s life.  It therefore beggared belief that if indeed one daughter had died through circumcision,  the mother would then threaten to kill the other daughter if she returned to Ivory Coast.

Therefore on the totality of the evidence the Tribunal not find that the appellant had established to the appropriate standard of proof that she would be persecuted for a Convention reason if she was returned to the Ivory Coast or that there were  substantial grounds for believing that she would suffer ill treatment in breach of Article 3 of the ECHR.

The Tribunal also found on the evidence before them  that there would be no breach of the Appellant’s physical and moral integrity were she to return to Ivory Coast.  Whilst  the Tribunal  accept that the Appellant had symptoms of PTSD, and  was being treated with anti-depressants and was due to undergo 12 sessions with a ream of psychiatrists, they had no evidence before them  to indicate that such treatment was  not available in the Ivory Coast, or that removal would cause a deterioration of her mental condition.  Her appeal was therefore dismissed.

  1. FGM, FORCED MARRIAGE, DOMESTIC VIOLENCE, ADULTERY AND WOMEN FROM THE IVORY COAST – DISMISSED ON THE FACTS OF THE  CASE

MD (Women) Ivory Coast CG [2010] UKUT 215 (IAC), provides in its headnote:

1.There is a wide variation in attitudes towards women in different parts of the Ivory Coast. In particular there is a strong contrast between traditional rural communities, particularly in the North and Central regions when compared with Abidjan, a relatively cosmopolitan city of mixed ethnicity, along with other urban centres.

2.This variation in attitude impacts on the risk faced by women of FGM, forced marriage, domestic violence, the effects of adultery and discrimination.

3.If in a particular area, a woman faces one or more of those risks, the state is unlikely to offer a sufficiency of protection. In such a case internal relocation may be possible without undue hardship.

4.In the Ivory Coast, women as such do form a particular social group for the purposes of the Refugee Convention. Whether an individual applicant is at risk of persecution by reason of membership of that particular social group will depend on her own particular circumstances including her cultural, social and tribal or regional background.

5.Operational Guidance Notes should not be regarded as country information. They are not produced by the Country of Information Service. They are, in essence, policy statements and as such fall into a different category

And the  following paragraphs:

“Conclusions on risk of persecution and Article 3

  1. We have concluded that women in the Ivory Coast are capable of being members of a Particular Social Group and that the risks they may suffer from FGM, domestic violence and forced marriage are sufficiently serious to amount to persecutory treatment in the absence of a sufficiency of protection, but the risk is not universal and in particular is very much less likely in an urban area such as Abidjan.
  2. There is the option of seeking protection by relocating in another part of the Ivory Coast.
  3. We have already found that women are at risk of treatment serious enough to warrant the description, persecutory and crossing the threshold of Article 3”.

 

  1. OSTRASCISM AND LONE WOMEN FROM PAKISTAN – NEGATIVE OUTCOME- DISMISSED ON ASYLUM GROUNDS

SM (lone women – ostracism) Pakistan [2016] UKUT 00067 (IAC), provides in its headnote:

1.Save as herein set out, the existing country guidance in SN and HM (Divorced women – risk on return) Pakistan CG [2004] UKIAT 00283 and in KA and Others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC) remains valid.

2.Where a risk of persecution or serious harm exists in her home area for a single woman or a female head of household, there may be an internal relocation option to one of Pakistan’s larger cities, depending on the family, social and educational situation of the woman in question.

3.It will not be normally be unduly harsh to expect a single woman or female head of household to relocate internally within Pakistan if she can access support from family members or a male guardian in the place of relocation.

4.It will not normally be unduly harsh for educated, better off, or older women to seek internal relocation to a city. It helps if a woman has qualifications enabling her to get well-paid employment and pay for accommodation and childcare if required.

5.Where a single woman, with or without children, is ostracised by family members and other sources of possible social support because she is in an irregular situation, internal relocation will be more difficult and whether it is unduly harsh will be a question of fact in each case.

6.A single woman or female head of household who has no male protector or social network may be able to use the state domestic violence shelters for a short time, but the focus of such shelters is on reconciling people with their family networks, and places are in short supply and time limited. Privately run shelters may be more flexible, providing longer term support while the woman regularises her social situation, but again, places are limited.

7.Domestic violence shelters are available for women at risk but where they are used by women with children, such shelters do not always allow older children to enter and stay with their mothers. The risk of temporary separation, and the proportionality of such separation, is likely to differ depending on the age and sex of a woman’s children: male children may be removed from their mothers at the age of 5 and placed in an orphanage or a madrasa until the family situation has been regularised (see KA and Others (domestic violence risk on return) Pakistan CG [2010] UKUT 216 (IAC)). Such temporary separation will not always be disproportionate or unduly harsh: that is a question of fact in each case.

8.Women in Pakistan are legally permitted to divorce their husbands and may institute divorce proceedings from the country of refuge, via a third party and with the help of lawyers in Pakistan, reducing the risk of family reprisals. A woman who does so and returns with a new partner or husband will have access to male protection and is unlikely, outside her home area, to be at risk of ostracism, still less of persecution or serious harm.

  1. DOMESTIC VIOLENCE, HONOR KILLING AND WOMEN FROM PAKISTAN- NEGATIVE OUTCOME-DISMISSED ON ASYLUM GROUNDS

KA and Others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC), provides in its headnote:

  • In general persons who on return face prosecution in the Pakistan courts will not be at real risk of a flagrant denial of their right to a fair trial, although it will always be necessary to consider the particular circumstances of the individual case.
  • Although conditions in prisons in Pakistan remain extremely poor, the evidence does not demonstrate that in general such conditions are persecutory or amount to serious harm or ill-treatment contrary to Article 3 ECHR.
  • The Protection of Women (Criminal Laws Amendment) Act 2006 (“PWA”), one of a number of legislative measures undertaken to improve the situation of women in Pakistan in the past decade, has had a significant effect on the operation of the Pakistan criminal law as it affects women accused of adultery. It led to the release of 2,500 imprisoned women. Most sexual offences now have to be dealt with under the Pakistan Penal Code (PPC) rather than under the more punitive Offence of Zina (Enforcement of Hudood) Ordinance 1979. Husbands no longer have power to register a First Information Report (FIR) with the police alleging adultery; since 1 December 2006 any such complaint must be presented to a court which will require sufficient grounds to be shown for any charges to proceed. A senior police officer has to conduct the investigation. Offences of adultery (both zina liable to hadd and zina liable to tazir) have been made bailable. However, Pakistan remains a heavily patriarchal society and levels of domestic violence continue to be high.
  • Whether a woman on return faces a real risk of an honour killing will depend on the particular circumstances; however, in general such a risk is likely to be confined to tribal areas such as the North West Frontier Province (NWFP) and is unlikely to impact on married women.
  • Pakistan law still favours the father in disputes over custody but there are signs that the courts are taking a more pragmatic approach based on the best interests of the child.
  • The guidance given in SN and HM (Divorced women – risk on return) Pakistan CG [2004] UKIAT 00283 and FS (Domestic violence – SN and HM – OGN) Pakistan CG [2006] 000283 remains valid. The network of women’s shelters (comprising government-run shelters (Darul Amans) and private and Islamic women’s crisis centres) in general affords effective protection for women victims of domestic violence, although there are significant shortcomings in the level of services and treatment of inmates in some such centres. Women with boys over 5 face separation from their sons.
  • In assessing whether women victims of domestic violence have a viable internal relocation alternative, regard must be had not only to the availability of such shelters/centres but also to the situation women will face after they leave such centres.
  1. DOMESTIC VIOLENCE AND WOMEN FROM PAKISTAN- NEGATIVE OUTCOME-DISMISSED ON ASYLUM GROUNDS

FS (domestic violence –SN and HM – OGN) Pakistan CG [2006] UKAIT 00023, provides in its headnote,

(1)Operational Guidance Notes (OGNs) provided by the Secretary of State for the Home Department for the guidance of his caseworkers are a statement of the position taken by him at the date they were issued but must be considered in the context of subsequent evidence   about the situation in the country of origin, including the information summarised in subsequent COI Reports; and

(2)The background evidence on the position of women at risk of domestic violence in Pakistan and the availability to them of State protection remains as set out in SN & HM (Divorced women– risk on return) Pakistan CG [2004] UKIAT 00283. It appears that the current intention of the authorities is to improve State protection for such women, although progress is slow. Every case will still turn on its particular facts and should be analysed according to the step by step approach set out at paragraph 48 of SN & HM, with particular regard to the  support on which the appellant can call if she is returned.

  1. DIVORCED WOMEN FROM PAKISTAN

SN & HM (Divorced women – risk on return) Pakistan CG [2004] UKIAT 00283, provides:

“48.The same CIPU Country Report accepts that internal flight options are limited for women, but it does not state that there are no internal flight possibilities and each case will depend on its own particular factual matrix. We find that some support is available in the cities, and we also consider the geographical scale of Pakistan (covering an area of about 307,374 square miles, with a population of 140,470,000); the question of internal flight will require careful consideration in each case. The general questions which Adjudicators should ask themselves in cases of this kind are as follows –

  • Has the claimant shown a real risk or reasonable likelihood of continuing hostility from her husband (or former husband) or his family members, such as to raise a real risk of serious harm in her former home area?
  • If yes, has she shown that she would have no effective protection in her home area against such a risk, including protection available from the Pakistani state, from her own family members, or from a current partner or his family?
  • If yes, would such a risk and lack of protection extend to any other part of Pakistan to which she could reasonably be expected to go (Robinson [1997] EWCA Civ 2089, AE and FE [2002] UKIAT 036361), having regard to the available state support, shelters, crisis centres, and family members or friends in other parts of Pakistan?

49.The appeal should be allowed under the Refugee Convention or Article 3 ECHR only if, on the facts as at the Adjudicator or Tribunal hearing, having regard to the background evidence and jurisprudence, a positive answer can be given to each of these questions”.

  1. FORCED MARRIAGES –WOMEN FROM AFGHANISTAN – A POSITIVE OUTCOME – ALLOWED ON ASYLUM GROUNDS

NS (Social Group – Women – Forced marriage) Afghanistan CG [2004] UKIAT 00328:

One of the arguments put forward by the Appellant was that she was a member of a particular social group of lone Afghan women who have suffered sexual assault, had female children and was without social or family protection.

The Adjudicator found that the Appellant’s account as to past events, including ill-treatment, was credible and that the fears she expressed were genuinely held. The Adjudicator found that the Appellant   had been persecuted in the past in Takhar in Afghanistan, and that there was a real risk that she would be so persecuted again on return, at the hands of non-state agents, albeit that those agents were in de facto control of the Province, but that the ill-treatment had not been for one of the five reasons enumerated in the 1951 Convention relating to the Status of Refugees (the Refugee Convention).

Part of the historical background was that a warlord’s nephews  had decided that he wished to marry the Appellant. She refused. The Appellant was raped and beaten. Shortly after the incident, a friend of the Appellant’s husband advised her to leave the country

The Upper Tribunal noted that the evidence, viewed as a whole showed that the rule of law was yet to be effectively re-established in Afghanistan. The  evidence also showed that women in Afghanistan were  exposed to serious levels of societal discrimination which were  condoned by the authorities or which the authorities did nothing to protect them from. It was  also the case that although some officials did take some steps to seek to prevent forced marriages of women or girl children, where the families in question persisted, then the officials did not prevent the forced marriage from taking place.

In the light of all the evidence, the Upper Tribunal found  that the discrimination experienced by women in Afghanistan did include discrimination in law, despite the constitution that had recently come into force, not least through a lack of protective legislation, and discrimination in access to an impartial, fair and independent police and judicial service.  It was  further found  that the discrimination also included societal discrimination by members of the population, from which the authorities either could  or would not provide protection. The lack of state protection was inherent in the discrimination relied on.

The Upper Tribunal stated however that mere membership of a particular social group was not sufficient to enable a successful claim under the Refugee Convention. There must be some nexus between the persecution and the reason for persecution, that is, the persecution is for reasons of….membership of a particular social group. It was observed that in Shah and Islam Lord Hoffman said “what is the reason for the persecution which the appellants fear?…important to notice that it is made up of two elements. First there is the threat of violence. This is a personal affair, directed against them as individuals. Secondly, there is the inability or unwillingness of the state to do anything to protect them. There is nothing personal about this. The evidence was that the state would not protect them because they were women.”

 The Upper Tribunal found   that the evidence in the case before them  tended to show that the attacks and harassment of the Appellant and her family by the Jamiat-e-Islami militia, took place because of the family’s involvement with, and connections to the Communist Najibullah regime. The credible evidence of the Appellant was that the warlords and their militia wished to destroy her family because of its connections to the former communist regime. The Appellant was a woman alone and exposed to the persecutory harm because the Jamiat-e-Islami had detained her husband. The Afghani authorities in Takhar, who were, and are, those same warlords and their militias, would not protect her because she was an unprotected woman from that family. Indeed they attacked and raped her for the very same reasons. On the evidence that was before the Adjudicator, the Upper Tribunal  found  that the harassment, ill-treatment, and serious harm that was meted out to the Appellant and her family , was not simply common crime, but was motivated, to a significant degree, by animosity due to the family’s connections to the former communist regime, and that it was  to be regarded as a form of intentional destruction of the family, as political enemies who are vulnerable to such harm, after the fall from power of the communist regime and the rise in power of the warlords once more. Those warlords were, and are, the authorities in the area of Takhar, and indeed in most of Afghanistan outside Kabul city. It was  found  that the evidence showed that the ill-treatment of the Appellant and her family was not merely personal, and that political opinion, imputed political opinion as far as the Appellant was concerned as opposed to her husband, was at least an effective cause of the serious harm to which she was subjected. The Upper Tribunal   further found  that after  the Appellant’s husband had been detained, it might be said that there were at that stage at least two Refugee Convention reasons to which a causal nexus had been demonstrated in respect of the serious harm meted out to the Appellant. The first was  the imputed political opinion, as before. The second was her status as a woman who, at that stage, was forcibly separated from her husband and without effective protection from the warlords. Whilst it could  be said that none of the events that took place after her husband was detained would have occurred had there been at least one adult male to protect her, who was not frail or otherwise unable to protect her, as were her father and uncle; it could be said that the lack of effective protection from an adult male or males was at least an effective cause of the serious harm that she experienced by reason of her status as a woman in Afghanistan.

The  attempt to force the Appellant into marriage against her will, including the attendant abuse, could  properly be regarded as having been motivated by circumstances demonstrating a nexus to both an imputed political opinion, as the wife of a man who was regarded as a political enemy of the persecutors (as the Adjudicator found them to be), and to the Appellant’s status as a woman, and therefore a member of a particular social group.   The Upper Tribunal stated that they were are reinforced in  their findings in this regard by  expert opinion.

The Upper Tribunal therefore  found  that the Appellant had shown that she  was  a member of a particular social group for the purposes of the Refugee Convention. She had shown that she had an immutable characteristic, namely that she was a woman. She had shown causal nexus of both political opinion and her status as an unprotected woman, and she had shown that women in Afghanistan are exposed to discrimination of the nature referred to by the House of Lords in the case of Islam and Shah. That social group is “women in Afghanistan.”

The Upper Tribunal also found that the Appellant had a present well-founded fear of persecution for that reason, if returned to Takhar at that time. It was reasonably likely that she would again experience similar ill-treatment to that which she experienced in the past, at the hands of the warlords, who were the de facto authorities in that area, from whom the ATIA authorities could or would not protect her.

The Upper Tribunal stated that they were reinforced in their findings in this regard by the support derived from the expert opinion of Dr Lau. Dr Lau in his report of September 2004, noted at paragraph 8 that the Appellant may be treated as being available for marriage. This would be so even though she continued to regard herself as married, committed to her husband, whom she still believed to be alive, and even though she did not wish to marry another man. As Dr Lau explained, this would be because it is unusual for an adult woman to live without her husband. The customary practice of polygamous marriage endorsed by Islam is justified on the ground that in times of war, widows need to be looked after by a new husband, who however, may already be married. Further, Islamic law regards the abandonment of a wife as a termination of her marriage which enables her to re-marry. He was of the expert opinion that given the detention of her husband, it was quite plausible that she was regarded as available for marriage. He was of the expert opinion that the Appellant’s account in this regard was plausible and her fears of persecution well-founded.

It was noted by the Upper Tribunal that there had been raised no criticism of or challenge to the expert opinions expressed by Dr Lau in his report in relation to Appellant. Accordingly, the Upper Tribunal found that it was appropriate to also accord considerable weight to his opinions.

The Upper Tribunal turned next to the question whether the Appellant had a well-founded fear of persecution in Kabul city, which is the place to which she would physically be returned. Or whether, in the alternative, it would be unreasonable in the sense that it would be unduly harsh to require her to relocate in Kabul city. It was noted  that Dr Lau went on  to express the opinion, which  was supported by the other generic background evidence that was  before them, that the fact that the Appellant was a single woman, without male protection, would expose her to considerable risks including a real risk of serious physical harm from which she would be unable to seek or obtain protection. Whilst the security situation in Afghanistan was  such that no reliable statistics on the position of women in society and incidents of harassment are available, he was  of the opinion that there was  little doubt that the state was  unable to protect women, and that the task of protection of women fell to the male members of her family, especially their husbands. Women who found themselves without the effective protection of their families were  in a very vulnerable and dangerous position. It was  most unusual for a woman to leave the house unaccompanied by a close male relative, and a woman who had not such protection of close male relatives was likely to be threatened and harassed.

The Upper Tribunal  found  that it followed that the Appellant would not be in a position to seek re-establish her teaching or other career in Kabul without exposing herself to a real risk of threats, harassment and even physical assault. She had not worked as a teacher since about 1991, at which time she had a husband to support and protect her and did not have the sole responsibility of having to care for and protect two young girls. She had only about two years experience of teaching before she and her family were obliged to flee Kabul. The fact that she would also need to find and pay for child care to enable her to be in a position to begin to seek work was  an added obstacle.

The Appellant and her two daughters, as homeless returnees, were  reasonably likely to find themselves in serious difficulties, as a lone woman and two female children, in finding accommodation and they might  have to reside in tents or other temporary accommodation, in poor conditions, as winter approached. It was  noted from Dr Lau’s report that there were no women’s shelters in Afghanistan and that a single woman would be at very real and serious risk of sexual assault.

It was noted that the Appellant not only had herself to protect, but also her two young daughters.  It was  found  that it was  reasonably likely that she would be exposed to further risk to herself in efforts to protect them from sexual and other assaults and harassment, and her efforts to provide for their needs generally. It followed that the Appellant’s two daughters were  themselves exposed to similar risks and that as they approached puberty, they too may face the risk of forced marriage. The Upper Tribunal reminded themselves that neither serious sexual assault nor forced marriage had been placed on the statute book as criminal offences and that the Appellant  would not even have a mechanism by which to seek redress for herself or her daughters in the event that they or any of them should experience such serious harm.

 The evidence showed that the Appellant was suffering from chronic PTSD at the time of the hearing before the Adjudicator. Her compromised mental health was  a further factor to be taken into consideration, which increased  the difficulties faced by her, on return to Kabul, and which rendered  her less able than a woman who  was  not recovering from PTSD, to withstand the demands of daily life in Kabul city, in seeking to protect herself and her children.

 The Appellant did not have protective support network in order to be able to live in Kabul in safety and dignity. Whilst it may be the case that this Appellant would be able to re-establish herself in Kabul with her two young daughters, and find work again as a teacher, if she had the protection of a husband, she should not be expected to find a man and marry, in Kabul.

The Upper Tribunal  found it unreasonable, within the meaning given to that term by the court in the case of Robinson, to require her to return to Kabul city.

The Upper Tribunal found the Appellant had shown that she had in the past and continued to have to day, a well-founded fear of persecution in Takhar and elsewhere in Afghanistan outside Kabul city, at the hands of warlords and their militia of the Jamiat-e-Islami, against whom the authorities of the ATIA did not and would not protect her. She had shown that her claim was grounded in one of the reasons adumbrated in Article 1 A2 of the Refugee Convention, namely, her membership of a particular social group. That group is “women in Afghanistan.”

The Tribunal found on   the evidence before them viewed in its totality, that it would be unreasonable, and unduly harsh, to require this Appellant to go to Kabul city.  It was not to be regarded as an alternative place of safety for her. The Appellant had therefore made good her claim and  the Tribunal  found  that she was  a refugee.

SOME CONSIDERATIONS

Although the Appellant in NS was found to belong to a particular social group  and her appeal was allowed,  there was a word of warning in in the case of NS (Social Group – Women – Forced marriage) Afghanistan CG [2004] UKIAT 00328 at paragraph 102 by the Upper Tribunal.  They noted that they  reported  the  decision giving their  findings in relation to the Appellant’s membership of a particular social group. It was stated that it was  important to note that the finding that women in Afghanistan are a particular social group was  based on the situation in that country as it then was, in its state of transition, and upon the intensity and nature of the discrimination faced by women at that point in history. The Upper Tribunal stated that it was  possible, and they  looked forward to that time, that there would be material, durable change for the better, not only for women but for all the people of Afghanistan. The Upper Tribunal made it  clear that it was  also important to note that the facts of the Appellant’s case which were  personal to her were just that, and that each case was  to be considered on its facts, and those facts applied to the relevant law at the time in question.

It has been over a decade since NS was notified and it might be thought claims from Afghani women which are gender specific  might  not have  much chance of success, however   the currently published Operational Guidance Note, Afghanistan OGN v11. Issued June 2013; reissued February 2015 still notes NS as a significant country guidance case and also  helpfully states:

3.12.9 Conclusion. Since the fall of the Taliban the position of women in Afghanistan has improved, but from a very low baseline and the sustainability of the improvements remains uncertain in the longer term. Sexual and gender-based violence against women is endemic.

3.12.10 Women cannot currently rely on protection from the Afghan authorities and it would be unreasonable to expect lone women and female heads of households to relocate internally. Women with a male support network may be able to relocate internally. Caselaw has established that women in Afghanistan are a particular social group in terms of the Refugee Convention; therefore a grant of asylum will be appropriate to applicants in this category who are able to demonstrate a well-founded fear of persecution for reason of their gender”

It is possible to obtain a finding of belonging to a particular social ground as in MD (Women) Ivory Coast CG [2010] UKUT 215 (IAC), but ultimately not succeed on the basis  that the appellant’s fear is not objectively well-founded nor subjectively well-founded nor that the appellant has established that she is at risk of harm as a result of the claimed  forced marriage and  adultery.

Although the appeal was allowed, at paragraph 108 of SB (PSG – Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 00002, the Upper Tribunal made it clear that because of the agreement between the parties as to the existence of a real risk of persecution in this case, their decision should not be taken as a decision to the effect that former victims of trafficking for sexual exploitation are in general at real risk of persecution in Moldova, or that they are at such risk by reason of membership of a particular social group, or that there is in general an insufficiency of protection for former victims of trafficking for sexual exploitation in Moldova, or that former victims of trafficking in Moldova cannot internally relocate within paragraph 339O of the Immigration Rules. The Tribunal stated that they  envisaged that, in the generality of cases, the outcome of the case would depend on these issues, rather than whether there is a particular social group.  The Tribunal stressed that  the facts of the case before them  case were  highly unusual.

CONCLUSION

Clearly having regard to the Tribunal’s  assessments and considerations,  the theme seems to be that each application and appeal is fact sensitive and will  be determined on the basis of the facts of each particular case.

However, in order to put forward a claim that might have some chance of success,  the background evidence needs  to be supportive; the claimant credible; where required  and relevant,   a country expert  or medical expert   should be sourced.

As may be evidenced  by some of the reasoning and considerations of the Upper Tribunal in the reported cases,  the fact that the home office  might refuse a claim, does not necessarily  mean that they are ultimately  correct.

 

 

 

 

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