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


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> AA085032015 [2016] UKAITUR AA085032015 (21 April 2016)
URL: http://www.bailii.org/uk/cases/UKAITUR/2016/AA085032015.html
Cite as: [2016] UKAITUR AA085032015, [2016] UKAITUR AA85032015

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IAC-AH- KRL-V2

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: AA/08503/2015

 

 

THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 12 th February 2016

On 21 April 2016

 

 

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

 

Between

 

EFH

(ANONYMITY DIRECTION MADE)

 

Appellant

 

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent

 

 

Representation :

 

For the Appellant: Mr S Chelvan, Counsel

For the Respondent: Mr D Clarke, Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.              The Appellant is a citizen of Singapore born on [ ] 1983. She entered the United Kingdom on 19 th September 2004 as a student. The genuineness of her entry is not challenged. Student leave was extended until 15 th November 2012. She applied for further leave to remain on 14 th November 2012. Within that application the Appellant stated she was transgendered and lesbian and that her gender was not legally or socially recognised in Singapore. The Respondent's application was refused under paragraph 276ADE of the Immigration Rules. There were no exceptional circumstances justifying consideration of a grant of leave under Article 8 outside the Rules and it was concluded that in the circumstances the Appellant should have applied for asylum at an Asylum Screening Unit.

2.              The Appellant appealed against the decision. Such appeal was based on both asylum and human rights grounds and the appeal came before Judge of the First-tier Tribunal P-J White on 10 th January 2014. The Appellant's appeal was dismissed on all grounds. The judge however noted that the Appellant had been born a male child and had realised in about 2002 that she was psychologically female and since 2004 had presented herself as female and behaved and socialised as such in the United Kingdom.

3.              The Appellant appealed and the appeal came before Upper Tribunal Judge Warr on 5 th August 2014. In a detailed promulgation dated 8 th August Judge Warr concluded that the determination of the First-tier Tribunal Judge was not materially flawed in law and the appeal was dismissed.

4.              On 18 th November 2014 a decision was taken by the Secretary of State to remove the Appellant from the United Kingdom. The Appellant appealed against that decision and the appeal came before Judge of the First-tier Tribunal Rodger sitting at Taylor House on 23 rd February 2015. In a determination promulgated on 26 th February 2015 Judge Rodger allowed the appeal to the extent that it was not in accordance with the law and remitted the matter back to the Respondent so that a new decision could be made. That finding was made after there had been a concession by the representative of the Secretary of State that there had been an error of law in the decision to remove on two grounds. Firstly the Appellant had made her asylum appeal on the grounds that she had a real fear of persecution if she refused to do the compulsory military service which is required for males in Singapore. Judge Rodger acknowledged that this was different from the argument raised in her previous appeal and it had been accepted by the Secretary of State that this had not been dealt with within the refusal letter. Secondly Judge Rodger found there was an inconsistency in the content of the decision letter and the refusal letter.

5.              The Secretary of State thereafter reconsidered the matter, noting that the Appellant applied for asylum and asked to be recognised as a refugee and that the Appellant claimed to have a well-founded fear of persecution in Singapore on the basis of her membership of a particular social group, namely a transgender individual in Singapore. That application was refused by Notice of Refusal dated 18 th May 2015. The Appellant appealed against that decision. That appeal was heard at Harmondsworth on 2 nd November 2015 before Judge of the First-tier Tribunal Jackson. In a decision and reasons promulgated on 19 th November 2015 the Appellant's appeal was allowed on both asylum and human rights grounds. It is the appeal from that decision that comes before me.

6.              On 3 rd December 2015 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. Those Grounds of Appeal contended that the First-tier Tribunal's basis for allowing the appeal on asylum grounds set out at paragraphs 35 to 39 of Judge Jackson's determination gave inadequate reasons for the conclusion reached and that it was maintained that the Appellant had failed to demonstrate that her decision not to serve compulsory military service in Singapore would engage the 1951 Convention. Further it was contended that the finding was inadequately reasoned and failed to have proper regard to the previous determination of the First-tier Tribunal (the decision of Judge P-J White) in which the First-tier Tribunal had dismissed the Appellant's Article 8 appeal and that the inadequacy of reasoning rendered the decision flawed to the extent that it should be set aside.

7.              On 15 th December Judge of the First-tier Tribunal Brunnen granted permission to appeal.

8.              It is on that basis that the appeal comes before me to determine whether or not there is any material error of law in the decision of the First-tier Tribunal. In addition on 27 th January 2016 Upper Tribunal Judge Perkins gave directions advising:-

(1)           both parties are directed to be prepared to address the Tribunal on the question of costs at the end of the hearing on Friday 12 th February 2016 or whenever the case is next heard;

(2)           the Tribunal hearing the appeal will consider any representations made and either make an order for costs (which could be that neither party pays the other's costs) or give directions for further submissions or order a further hearing to consider costs or such further order, if any, that seems fitting.

9.              It is on that basis that the appeal comes before me. There are consequently two extant issues which I have to consider. The first is whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. This is an appeal by the Secretary of State but for the purpose of continuity throughout the appeal process Miss EFH is referred to herein as the Appellant and the Secretary of State as the Respondent. On the appeal as to whether there is an error of law in the decision of the First-tier Tribunal Judge, the Appellant appears by her instructed Counsel Mr Chelvan. Mr Chelvan is familiar with this matter having appeared before Judge Jackson in the First-tier Tribunal. The Secretary of State appears on the hearing of the error of law appeal by her instructed Home Office Presenting Officer Mr Clarke. The Secretary of State is separately represented by Mr Anderson of Counsel so far as the issue relating to costs as set out in the directions order of Upper Tribunal Judge Perkins is concerned. It was against that very extensive historical background that I heard the appeal. Miss EFH was present but bearing in mind the issues did not provide any oral testimony.

 

Submissions/Discussions

10.          Mr Clarke starts by taking me back through the history of this matter (which is set out in detail above) and to the views initially expressed by Judge White. He points out that Judge White at paragraph 39 accepted that if the Appellant was at risk of persecution arising from her gender identity, that would be a reason falling within the ambit of the Refugee Convention. However he points out further that at paragraph 55 Judge White having considered all the evidence with care and concern was satisfied that the Appellant was likely to face some difficulties and may well face some degree of discrimination in Singapore but was not persuaded that the treatment she is at risk of suffering has been shown either in individual instances or cumulatively to reach the level of really serious harm or to have sufficiently serious prejudicial consequences so as to amount to persecution. He therefore submits that at first instance the judge found that living as a man would not bring the Appellant within a level of persecution. Therefore her appeal could not succeed. That view he submits was upheld by Upper Tribunal Judge Warr.

11.          Mr Clarke points out that the referral back to the Secretary of State by Judge Rodger was due to the failure of the Secretary of State to have addressed issues and that the history of the matter was considered by Judge Jackson at paragraphs 34 and 35 of her determination. Mr Clarke points out the judge looked at the asylum appeal on two completely separate bases and that the issues in the instant appeal before me raised the question of whether the refusal by the Appellant to do military service in Singapore engaged the Convention. He submits that a refusal not to do military service would not engage the Convention because by refusing to do so the Appellant would be in the same position as anybody else who seeks to refuse and consequently the causal link with the prescribed social group is broken. He relies on guidance to be found in Sepet and Another v the Secretary of State for the Home Department [2003] UKHL 15. He points out this was a case involving a refusal to perform compulsory military service in the Turkish Army by Kurds on conscientious grounds and that there was a liability to imprisonment if returned to Turkey. He refers me to paragraph 22 therein, pointing out that treatment is not persecutory if it is treatment meted out to all and is not discriminatory. He submits that this authority shows that the causal link has been broken so far as it relates to a social group and that the judge has inadequately reasoned on what constitutes a social group. He submits that this creates a material error of law.

12.          Mr Clarke takes me through a detailed analysis of paragraphs 36 to 39 of Judge Jackson's decision. The Secretary of State challenges the finding at paragraph 36 that the Appellant would refuse to undertake military service on the basis of her gender as a woman, contending that that following Sepet does not mean that she is being discriminated against and further whilst noting the comments made at paragraph 37 and 39 contends that the judge erred in finding the conditions that the Appellant would face were persecutory. He points out that the issue of women not being required to do military service was expressly considered by Judge White at paragraphs 51 and 52 and that he found that the threshold was not reached. Consequently it is the submission of the Secretary of State that Judge Jackson has gone behind the first-tier decision of Judge White (which he submits was approved by Upper Tribunal Judge Warr) and that the judge erred in doing so. Further Mr Clarke takes me to paragraph 28 of the Appellant's Rule 24 response where it is set out that where punishment arises out of an act committed by an individual who refuses to comply with a discriminatory measure, based on a protected characteristic that the individual possesses, which falls within a Refugee Convention (in these proceedings her preoperative gender identity) then prosecution can amount to persecution. He submits that that is wrong and that the measure does not warrant protection and that punishment was not the basis of the causal link. In such circumstances he submits that the basis upon which the judge has considered this appeal is erroneous and he asks me to set it aside.

13.          Mr Clarke thereafter turns to the second ground of the Secretary of State's submission, namely that inadequate reasons have been given pursuant to Article 8. His starting point is paragraph 58 of the decision of Immigration Judge White. He notes that the Appellant's case raises issues as analysed by Judge White which are potentially compelling and compassionate and which undoubtedly are outside the contemplation of paragraph 276ADE and that consequently a full traditional assessment of the Article 8 claim is appropriate. Mr Clarke comments therefore that what is being suggested is that Article 8 arguments must be considered, i.e. would Article 8 rights be considered if the Appellant had to do military service? He submits the judge goes behind the findings of Judge White and that at paragraph 40 of her decision Judge Jackson has allowed the appeal under Article 8 on exactly the same reasons that Judge White refused it, i.e. that the reasons given were nothing to do with military service and that therefore Judge Jackson had failed to give any reason for departing from the decision of Judge White which constitutes a material error of law.

14.          Mr Chelvan states that the Home Office are hypothetically seeking to send a woman back to Singapore to be punished as a man. He acknowledges and appreciates the guidelines in Devaseelan but points out that this is only the starting point and that the First-tier Tribunal was not bound by the guidance and that any asylum claim had to be reconsidered. He submits that Judge White was the starting point and circumstances were being looked at as they were in 2014. Similarly the analysis under Article 8 is only the starting point.

15.          He takes me to the skeleton argument that was before the First-tier Tribunal Judge, in particular paragraphs 23 to 29, submitting that it is accepted by the 2014 First-tier Tribunal determination that the Appellant faces discrimination on the basis of her gender in Singapore which is ignored by the state unless she undergoes forced modification, be it through being forced to "live and be treated as a man" or undergo sex reassignment. He again reiterates paragraphs 35 to 39 of Judge Jackson's decision, pointing out it is important to note that the findings of fact therein are not challenged by the Secretary of State in her Grounds of Appeal and that the central issue is whether the punishment for refusal to undertake military service recorded at paragraph 39 of the determination as being a fine and a jail sentence of an initial fifteen months amount to persecution. And that within paragraph 39 of Judge Jackson's decision she finds that prosecution for refusal to undertake military service amounts to persecution but notes that it is the Secretary of State's position that that is inadequately reasoned.

16.          He contends that gender identity is clearly a protected characteristic within a particular social group Convention reason as identified by Judge Jackson at paragraph 37 and within the earlier 2014 determination. He submits that the Respondent would not be able to live "openly and freely as a preoperative trans-woman in Singapore when undertaking military service and unless she accepts forced modification she will be punished for her actions". He submits that the punishments to be meted out are both a prison sentence and fine which are not insignificant and arise solely out of the Appellant's refusal to engage with forced modification of her protected immutable/innate characteristic. Consequently he submits that the pleadings by the Secretary of State are wholly without merit and he asks me to dismiss the appeal.

17.          He further reminds me of the approach adopted by Judge Rodger - which he submits was correct - but the argument currently being considered is different to that raised in the previous appeal before Judge White and that it had not been dealt with in the original Notice of Refusal. He submits as there is no punishment to the Appellant as a woman she would not be subject to military service and that it is only men who are punished but transgender women who have not gone through surgical intervention would be subject to punishment. He submits that there is agreement all round that discriminatory treatment lies at the heart of an asylum appeal and therefore submits that Mr Clarke's submission is without foundation and merit, for otherwise the Secretary of State would not have conceded to the original remittal as the Convention was not engaged.

18.          Mr Chelvan takes me to paragraph 4 of the Secretary of State's Grounds of Appeal, namely those contending that in order to qualify for asylum persecution must be as a result of a particular social group and the contention that the Tribunal has failed to demonstrate any such causal link. He points out that punishment to the Appellant would be for refusal to carry out military service as the Appellant will be treated as a man in Singapore. He further points out that the Secretary of State accepts that the Appellant is a woman. She consequently falls therein within the UK as a member of a gender social group, namely a preoperative transgender woman. He points out that Judge Jackson acknowledged that this was not the position in Singapore and in Singapore that the Appellant would have two options, either

(a)           radical surgical intervention; or

(b)           to accept that she is a man under Singapore law.

He points out that if the latter is accepted by the Appellant she would have to serve her military service as a man, i.e. living with men and showering with them, etc. This fact he submits is not challenged. The Appellant would therefore be faced with two steps, either revoking her biological man persona or alternatively if not punished it will be because she was treated as a man and she will be punished as a man. Hence the gender discussion that took place and the finding that women are not punished within the military. He submits that all these factors were accepted and grasped by Judge Jackson and therefore firstly there is no material error of law disclosed in the decision and secondly on that basis an application for wasted costs has been made.

19.          He takes me at some length to Judge Jackson's decision and goes through the findings made at paragraphs 34 to 39. He points out that these are the key paragraphs and that there has been no challenge to the findings of fact made therein. He points out that Mr Clarke on behalf of the Secretary of State has accepted the contentions made in paragraph 34 as accurately representing the facts at the date of the hearing. Paragraph 35 is not challenged.

20.          He notes the challenge to paragraph 36 by reference to paragraph 22 of Sephet but points out that the Appellant would be punished as a man when in fact she is a woman, albeit that she has not been treated as such in Singapore and has not had surgical intervention. He submits that this must be discriminatory and that this was a finding that was open to Judge Jackson. He rejects the contention made by the Secretary of State that this is not discriminatory, pointing out that the Appellant is a woman, not a man and that the findings therein of the judge were perfectly open to her.

21.          He next takes me to paragraph 37, pointing out the facts therein are not challenged and that the paragraphs set out the Judge's findings clearly and distinctly; that she has analysed the position thoroughly and he submits that there is no material error of law disclosed.

22.          So far as the position under Article 8 is concerned he submits that the judge has here also carried out a very thorough analysis and that there are no material errors of law. He asks me firstly to dismiss the Secretary of State's appeal and secondly to give due and full consideration to his application for a wasted costs order.

The Law

23.          Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.

24.          It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.

Findings re Material Error of Law

25.          I start by reminding myself that the issue before me is whether or not there is a material error of law in the decision of Immigration Judge Jackson. I have not heard oral testimony and I am not retrying the issue. I find that Judge Jackson's decision does not disclose any material errors of law. It is important that I give my reasons. The core of Judge Jackson's determination is to be found at paragraphs 35 to 39. It is however important to analyse all of the findings of Judge Jackson and to look at them in the context of this matter. Much has been made by Mr Clarke that the decision of Judge Jackson does not in any way concur with the findings of Judge White. When there has been a prior decision the approach to be adopted by the second judge is set out in detail in Devaseelan (Second Appeals - ECHR - Extra-Territorial Effects) Sri Lanka [2002] UKIAT 00702. Judge Jackson has taken full account of the provisions of Devaseelan. Firstly she has gone so far at paragraph 33 of her determination to recite the whole of that decision. Secondly she has then analysed the findings of Judge White (as approved by UTJ Warr) at paragraph 34.

26.          However it is important to note the special features of this matter. The history has been referred to above in some considerable detail. Judge Jackson was aware that the matter was referred back via Judge Rodger to the Secretary of State. Judge Rodger very clearly set out at paragraph 9 the basis of that referral, namely that the Appellant had made her asylum appeal on the grounds that she had a real fear of persecution if she refused to do the compulsory military service which is required for males in Singapore. Judge Rodger importantly noticed that that was a different argument to that raised in the previous appeal and that it had been accepted by the Secretary of State that that had not been dealt with within the refusal letter. Consequently the extant appeal is on a different basis to that which came before Judge White. However Judge Jackson, in a very carefully constructed couple of paragraphs, firstly analysed the position with regard to the Appellant being forced to undertake compulsory military service as a man in Singapore and dismissed the Appellant's appeal. Secondly thereafter at paragraph 35 she went on to consider the alternative claim for asylum, i.e. the new claim on the basis that the Appellant would refuse to undertake compulsory military service. She noted that this was not an issue before Judge White or Judge Warr and there were no findings made by Judge Rodger who properly remitted the case back to the Respondent. It is the analysis of that claim that she then goes on to carefully consider at paragraphs 36 to 39.

27.          I find the decision between paragraphs 36 and 39 to be extremely well constructed and thought through. At paragraph 36 she considers the Appellant's evidence and makes a finding that it was entirely reasonable based solely on the Appellant's gender to undertake military service if returned to Singapore and not on the basis of any conscientious objection to military service per se. That was a finding of fact that was open to the judge.

28.          Judge Jackson goes on to state that the Appellant is recognised by the Secretary of State as a woman and it is not disputed that she would not be recognised as such by any authority in Singapore. Judge Jackson makes a very strong finding, emphasising the words that the Respondent's view that "provision is made for transgender individuals to undertake military service in Singapore" by stating that this does not engage at all with what she accepts would be the position for the Appellant who would be required to live as a man in a male only environment for the period of military service. She thereafter goes on to give examples of behavioural and factual difficulties which constitute persecution. The submission by Mr Clarke that this is not persecution amounts to little more than disagreement.

29.          Thereafter at paragraph 39 Judge Jackson analyses sentencing powers that would avail themselves to the Singapore authorities if the Appellant refused to undertake military service and finds that given that military service is only required for men, she did not consider the Appellant's reason for refusing to undertake this based purely on her gender to be a normal case of draft evasion or conscientious objection. Her conclusions ultimately bearing in mind the likely punishments of fine and imprisonment for refusing to undertake military service amount to persecution for a Convention reason. These are findings of fact firstly that she is entitled to make and secondly but more importantly she has given full reasons for.

30.          In reaching this decision I have given very careful consideration to the detailed submissions made by Mr Clarke. He has valiantly on behalf of the Secretary of State sought to persuade me that the decision of Judge Jackson is erroneous and that the judge has in the Secretary of State's view looked at the matter as one of punishment, rather than one finding that the Appellant is a member of a social group. I disagree with that analysis. The judge has set out very carefully at paragraph 39 the basis upon which she finds the Appellant to be a member of a social group and it has to be remembered that Singapore refuses to treat the Appellant as a woman. Judge Jackson found that Singapore would be punishing the Appellant as a man and that constitutes persecution. To that end the judge's reasoning is perfectly understandable and straightforward. In a very clear and well explained decision she addresses fully these issues and for all the above reasons there is no material error of law and the appeal of the Secretary of State is consequently dismissed.

31.          It is appropriate to briefly refer to Article 8. This has only been briefly addressed by Judge Jackson at paragraph 40 where she states

"I would also have allowed the appeal under Article 8 of the European Convention on Human Rights on the basis that requiring the Appellant to live as a man, even for a period of two weeks a year to undertake military service would be a fundamental breach of her right to private life and expression of her gender identity."

32.          In fairness to Mr Clarke the arguments under Article 8 that are raised are limited in the extreme. He does little more than to seek to rely on paragraph 6 of the Grounds of Appeal. Those grounds contending that the finding was inadequately reasoned and failed to have proper regard to the previous determination in which the First-tier Tribunal dismissed the Appellant's Article 8 appeal. For reasons given above I have already indicated that there has been very careful and proper consideration by Judge Jackson to the decision of Judge White. As Mr Chelvan points out in his submissions Judge Rodger in his determination of February 2015 finds that the decision on Article 8 was defective and needs to be remade and as Judge Jackson describes her decision under Article 8 is for a claim based on breaches of Articles 8 and 10 due to the discrimination that the Appellant would be forced to suffer living as a man to perform military service. In such circumstances I am satisfied that the judge albeit in a brief paragraph has fully addressed this issue and the Article 8 appeal is consequently dismissed, the decision of the First-tier Tribunal disclosing no material error of law.

The Wasted Costs Application

33.          That leaves extant before me the claimant's application for wasted costs. On this application the Secretary of State was represented by her instructed Counsel Mr Anderson. Both Mr Chelvan and Mr Anderson acknowledged that as a starting point for that application it was necessary for me to determine the error of law appeal and only if I found there was no material error of law could the wasted costs application be sustained. That of course I have found above. In such circumstances the correct approach is to firstly note the basis of the application and to note that I have not taken any evidence thereon and to set out directions reserving the matter to myself for a hearing solely with regard to the application for wasted costs.

34.          I note Mr Chelvan's contention that the basis of the application is that the finding I make herein was so obvious that the Secretary of State should not have appealed the decision of the First-tier Tribunal. I further note that both in oral submissions and in written arguments reference is made by the Appellant's legal representatives to allegations of negligence generally in bringing this appeal by the Secretary of State and of specific negligence alleged against the Secretary of State's representative Miss Savage. It is appropriate that the extant issue is dealt with properly and that any party against who allegations of this nature are made is given the opportunity to fully respond. However it does seem to me that that can be addressed by way of the provision of witness statements and that judicial control on this matter would indicate that the correct approach is to give detailed directions and for the issue to be addressed by way of submissions. What however is important is that the Tribunal has before it a full understanding of the case that is to be made out, including the financial claim that is made. Inevitably such an appeal would involve two steps:-

(1)           the showing of an entitlement to a wasted costs order; and

(2)           in the event that a wasted cost order is made the quantification of that amount.

It is clear of course that the Appellant cannot proceed to the second limb of such argument unless she succeeds on the first limb. On that basis I set out directions for the further hearing of this matter with regard to the wasted cost application.

Notice of Decision

35.          The decision of the First-tier Tribunal Judge discloses no material error of law and the appeal of the Secretary of State is dismissed and the decision of the First-tier Tribunal Judge is maintained.

36.          Directions on the Appellant's appeal for a wasted cost order are attached herewith.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

 

 

 

 

 

Signed Date

 

 

Deputy Upper Tribunal Judge D N Harris

 


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