Case No: C5/2008/2319
C5/2008/2319A
Neutral Citation Number: [2010] EWCA Civ 1165
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/03280/2008]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 19th July 2010

Before:

LORD JUSTICE JACOB
LORD JUSTICE HOOPER
and
LORD JUSTICE TOMLINSON
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Between:

	SB (TRINIDAD AND TOBAGO)	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Mr Paul Turner (instructed by Messrs Raja & Co) appeared on behalf of the Appellant.
Mr David Blundell (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Hooper:   

1.	The appellant was born on 24 March 1988 and is a national of Trinidad and Tobago.  She arrived at Gatwick Airport on 13 March 2008.  Subsequently she made a number of claims.  The claim that is in issue in this appeal is her claim that she was entitled to be granted humanitarian protection in accordance with paragraph 339C of the Immigration Rules.  She was refused that protection by the Secretary of State.  She appealed to what was then the Asylum and Immigration Tribunal.  Her appeal was heard by Immigration Judge Freestone who reached this conclusion at the end of her decision:

"The Appellant is in fear of her ex‑partner who is a criminal and gang leader... given my conclusions on credibility, sufficiency of protection and internal relocation as outlined above, I find that the Appellant has shown substantial grounds for believing that she will face a real risk of serious harm in her country of origin and that she is unable or, owing to such risk, unwilling to avail herself of the protection of her country of origin and I come to the conclusion that the Appellant's removal would cause the UK to be in breach of its obligations under paragraph 339C of the Immigration Rules."

She went on to say that in the light of these conclusions she also found that the decision appealed against would cause the United Kingdom to be in breach of the law of or its obligations under Articles 2 and 3 of the European Convention of Human Rights.

2.	That decision was appealed by the Secretary of State and at the first stage Senior Immigration Judge Freeman held that Immigration Judge Freestone had erred in law and he ordered reconsideration.  The matter was reconsidered and a decision adverse to the appellant was reached.  However, there is now no dispute that the decision on reconsideration is susceptible to an appeal and the Secretary of State accepts that it should be sent back for reconsideration.

3.	However, it is argued on behalf of the appellant that in fact Immigration Judge Freestone made no error of law.  If that be right then her decision stands and there is no question of sending this back for reconsideration.  We have therefore only heard argument on that one point.

4.	Senior Immigration Judge Freeman found that Immigration Judge Freestone had erred in law in not referring to two matters.  One of those two matters is not now relied upon by the Secretary of State (the respondent) and therefore I can ignore it.  The other document which Senior Immigration Judge Freeman says that Immigration Judge Freestone ought to have referred to was a report from the United States, the Department of State of the United States government.  I refer to one paragraph there.  It says:

"NGOs charged that police were often lax in enforcing the law.  The Division of Gender Affairs (DGA) in the Ministry of Community Development, Culture and Gender Affairs operated a 24-hour hotline for victims of rape, spousal abuse, and other violence against women, referring callers to eight shelters for battered women, a rape crisis centre, counselling services, support groups, and other assistance."

That paragraph is in a passage of the report dealing with discrimination, societal abuses in respect of women.  In the second paragraph, the report states that many community leaders asserted that abuse of women, particularly in the form of domestic abuse, continued to be a significant problem.

5.	At the outset of his submissions, Mr Blundell appeared to be arguing that the Immigration Judge Freestone had not asked herself the right question.  However, during further debate he accepted, as I shall show in a moment, that she did ask herself the right question.  He says that, having asked herself the right question, she ought to have referred to these eight shelters.  He tells us that reliance was placed upon the existence of these eight shelters by the respondent in the course of the hearing before her, and I for these purposes accept that to be right.  Mr Blundell accepts that at the outset of the decision, she said this:

"6. It was agreed by both parties at the outset that the Respondent had accepted that the core of the Appellant's claim was credible and that she had been the victim of domestic violence.  The main issues were whether the Appellant could be regarded as a member of a social group [not relevant for this appeal], whether there was a sufficiency of protection on her return and whether she was able to live in any other part of Trinidad and Tobago."

6.	Later in the decision the judge said:

“30. The Respondent has accepted that the Appellant has suffered ill treatment at the hands of her ex-partner.  Looking at the totality of the evidence I am satisfied that the Appellant’s ex-partner is a criminal and a gang leader involved in drug dealing and kidnappings who is determined to seek her out to cause harm to her.  Her account in this respect does not contain any discrepancies.  It is supported by evidence form her father and her stepfather, and from the documents from the police authorities in Trinidad.  

31. I am satisfied that the Appellant’s immigration history does not undermine her credibility in those circumstances.  She was a young girl (she was sixteen when she met her ex-partner) trying to get away from the clutches of an abusive and violent boyfriend and wanted to join her mother in the UK.  I accept that she would not be aware that she could claim asylum in those circumstances and I accept the evidence of her stepfather that they were trying to find ways to regularise the Appellant’s status.  It is clear that she was not trying to disappear in the UK because she remained at her mother’s address, which was known to the immigration authorities, until she was arrested.

32. The Appellant and her father reported her ex-partner to the police on a number of occasions at different police stations.  That is confirmed by the letter dated the 4th May 2008.  However despite the confirmation in the letter that the Appellant and her family had been reporting the abuse there is no mention of any action being taken by the police and the violence against the Appellant and her family continued.

33. A restraining order was obtained from the courts in 2005 but the Appellant’s partner evaded service and threatened her against taking such action again.  

34. The Appellant left her ex-partner on a number of occasions but he found her every time and brought her back and the abuse continued.  When she finally left him at the end of 2007 she remained for a while with a friend in Barbados and then returned to stay with a father’s friend and tried to obtain [help] from the Special Anti Crime Unit.  She was offered a place in a women’s refuge but did not take up this offer because it was close to where her ex-partner lived.  I am satisfied that this was a reasonable response and that the offer of a place in a refuge in the locality of her ex-partner does not indicate that the authorities are willing and able to protect the Appellant.

35.  The Appellant and her family have tried to obtain help from the police and from the judicial system but the authorities have either been unwilling or unable to give her protection from her ex-partner.  Accordingly I am satisfied that if the Appellant were returned to her home area she would not have a sufficiency of protection.

36. Trinidad and Tobago is small geographically and by population.  This would make it more difficult for the Appellant to relocate.  There is limited objective evidence and country guidance caselaw relating to Trinidad and Tobago but I am satisfied from the USSD report that drugs and criminal gangs have great influence in the local community.  The Appellant has tried in the past to relocate but has always been found.  Accordingly I am satisfied that the risk of death or serious injury from the Appellant’s ex-partner would not be diminished by the Appellant relocating within Trinidad and Tobago.”

7.	At paragraph 35 it will be seen she is asking herself whether on her return home the appellant would have a sufficiency of protection.  In paragraph 36, having earlier described the character of the man who was her ex‑partner and who has abused her on many occasions and on many occasions has brought her back to her home and continued the abuse, she goes on to say in paragraph 36 that the appellant has tried in the past to relocate but has always been found.  She reaches the conclusion that the real risk of death or serious injury from the appellant's ex‑partner would not be diminished with the appellant relocating within Trinidad and Tobago.

8.	How then would this result in any way differ if she had referred specifically to the eight shelters on the assumption (which I am accepting for these purposes) that stress was laid upon those eight shelters?  I for my part see that it would have made absolutely no difference to the decision in this case.  The fact that there may be shelters which could offer a victim of ordinary domestic abuse some protection would, in my view, and in the judgment of Immigration Judge Freeman, have no impact at all.
 
9.	Having regard to this man's character she was entitled to find that she could not relocate and for those reasons I would allow the appeal.

Lord Justice Tomlinson:   

10.	I agree.  My reading of paragraph 36 of the reasons of Immigration Judge Freestone is that she concluded that the applicant would simply be unsafe at whatever place within Trinidad and Tobago to which she might relocate

11.	For those reasons I agree with my Lord that the appeal should be allowed.

Lord Justice Jacob:   

12.	I agree with both judgments.

Order: Application granted; appeal allowed