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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2022-006707
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First-tier Tribunal No: PA/54453/2021 IA/13370/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 28 April 2025
Before
UPPER TRIBUNAL JUDGE MANDALIA
Between
EN
(ANONYMITY DIRECTION MADE)
Appellants
and
Secretary of State for the Home Department
Respondent
Representation
For the Appellant: Mr M Mohzam, instructed by CB Solicitors
For the Respondent: Ms R Arif, Senior Home Office Presenting Officer
Heard at Birmingham Civil Justice Centre on 2 December 2024
Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, as the appeal concerns a claim for international protection, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.
Decision and Reasons
Introduction
1. The appellant is a national of Namibia. He arrived in the United Kingdom on 26 December 2017 with leave to enter for 6 months. He has remained in the UK and made unsuccessful applications for an EEA Residence Card and an application for leave to remain on human rights grounds. On 11 September 2021, he made a claim for international protection. That claim was refused by the respondent for reasons set out in a decision dated 17 August 2021. The appellant's appeal against that decision was dismissed on all grounds by First-tier Tribunal Judge Shanahan for reasons set out in a decision dated 23 June 2022. Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Boyes on 23 September 2022.
2. The appeal was heard by Upper Tribunal Judge Mahmood, who, for reasons set out in his decision issued on 20 September 2024, set aside the decision of First-tier Tribunal Judge Shanahan "relating to the protection claim only". Upper Tribunal Judge Mahmood said:
"In my judgment, the Judge erred by not providing any or any adequate reasoning as to how there will be a sufficiency of protection with reference to the background material presented. Nor is there any adequate reasoning as to how the Appellant would be able to avoid his uncle pursuing him or with the risks of being found, as he was previously. There is no assessment either of the reasonableness of the internal relocation and with no reference to any case law in support of the Judge's decision. It may well be that much of the difficulty was caused by the failure of the Respondent to have a representative at the hearing before the Judge, but nonetheless it remained for the Judge to deal with all issues that were before her."
3. Having set aside the decision of the FtT, Upper Tribunal Judge Mahmood directed that the decision in the appeal on the protection claim will be remade in the Upper Tribunal. He preserved the findings relating to the protection claim made by First-tier Tribunal Judge Shanahan set out at paragraphs [22] to [32] of the decision.
4. It is against that background that the appeal is listed before me to remake the decision.
5. The appellant's claim is summarised in paragraph [3] of the decision of the FtT:
"The Appellant fears return to Namibia because of a land dispute with his uncle. The Appellant's case is that his uncle has throughout his life abused him and persecuted him because he was born with a split lip. The Appellant's mother adopted her sister's son after the sister died. This uncle took the nephew to his farm to work on the land. However, the nephew sold the land without the uncle's consent. He then went into hiding but was later discovered hanged. The uncle blamed the Appellant and his mother and demanded that they pay him the money the nephew made on the sale of the farm. Neither the Appellant nor his mother could afford to make such a payment. The uncle arranged for the Appellant to be beaten on a number of occasions which resulted in his hospitalisation on one occasion for two weeks. The Appellant reported the assaults to the police but they were unable to take the matter further because of a lack of evidence against the uncle. The Appellant then went into hiding in a nearby town for one year. He worked as a taxi driver during that time but only at night and avoided popular places. Eventually he was able to save enough to leave the country. He fears his uncle who had threatened to kill him; he has ties to the Government and is rich and influential. He would be able to find the Appellant in Namibia and carry out his threats."
The Preserved Findings made by FtT Judge Shanahan
6. Before the FtT, the appellant relied upon documents sent to the appellant's partner by her maternal aunt in Namibia, that had not previously been before the respondent. They are referred to at paragraph [10] of the decision of the FtT. The first is a witness statement from Joesph Cloete, a Police Officer said to have been involved in complaints made by the appellant against his uncle. The second is hospital records and a health card.
7. It is useful to begin by setting out the preserved findings made by FtT Judge Shanahan set out in paragraphs [22] to [32] of the decision. The judge found:
i) The health records obtained by the appellant are contained within a booklet and disclose entries in 2014 and 2015 consistent with the appellant having been assaulted. For example, on page 37 it specifically refers to his assault history. The records appear to be genuine and as such confirm the appellant's claim that he had been assaulted, although it does not confirm who was responsible for the attacks. (para 22)
ii) The witness statement of Joseph Cloete attests to the complaints made by the appellant in 2014 and 2015; (para 23)
iii) The appellant's health records indicate the assaults suffered by the appellant and from the unchallenged police statement it is reasonably likely that the appellant was attacked as claimed; (para 24)
iv) The Appellant did try to live elsewhere in Namibia (Swakopmund) before coming to the UK but was nonetheless found by his uncle; (para 25)
v) It is not implausible that the appellant's mother should continue to live with the uncle; ( para 26)
vi) The appellant's uncle may be an individual who has some measure of influence and power in his locality; (para 27)
vii) The appellant's credibility is undermined, to some extent, by his previous attempts to remain in the UK, specifically his use of a false Belgian passport and his marriage of convenience. The appellant's immigration history undermines his credibility. He did not claim asylum until his human rights claim was refused and removal directions were set. He has been legally represented since at least June 2018 and his explanation that he was unaware of the asylum process was rejected (para 28 to 30)
viii) Nevertheless, the core of the appellant's account has been consistent and at the lower standard reasonably likely; ( para 31)
ix) The Appellant does not fall within the Convention reasons and is not entitled to protection under that convention; (para 32)
The Issue
8. Mr Mohzam submits the issue in the appeal before me is whether there is a sufficiency of state protection available to the appellant and whether the appellant can internally relocate. The evidence relied upon by the appellant is set out in a consolidated bundle filed and served by the appellant's representatives on 21 November 2024 that comprises of 246 pages.
The Hearing of the Appeal Before Me
9. Although the appellant attended the hearing, I was informed by Mr Mohzam that the appellant was not going to be called to give evidence. As I was not going to hear evidence from the appellant, by way of clarification I asked Mr Mohzam whether although not set out as a preserved finding in the decision of Upper Tribunal Judge Mahmood, there is any issue about what is said by FtT Judge Shanahan regarding the reach of the appellant's uncle in paragraph [34] of the decision of the FtT. The judge said:
"Firstly, I have considered the evidence the Appellant has given about his uncle's influence. While I have accepted that he may have some influence there is little sufficient evidence that he is so influential or powerful to be able to know the Appellant has returned or to locate him if the Appellant lives elsewhere. I accept that the Appellant's account is he found him previously in Swakopmund but it is also the case that at that time he was looking for him and there would now be no reason for the uncle to be aware of his return to another part of Namibia."
10. Mr Mohzam confirmed the appellant does not take any issue with what is said by the judge in that paragraph, but that must be read alongside the finding at paragraph [27] that "the uncle may be an individual who has some measure of influence and power in his locality."
11. I also noted that the judge recorded at paragraph [35] of the decision of the FtT that the appellant "has worked in Namibia and has lived in at least three different areas, Windhoek, Okakarara and Swakopmund (Swako)". As the appellant was not going to be giving evidence I invited Mr Mohzam to draw my attention to the evidence before me regarding the various places that the appellant had lived.
12. Mr Mohzam referred to the appellant's witness statement dated 29 April 2021 in which he confirms he was born in Windhoek and that he had lived there for most of his life before eventually leaving Namibia, and that he would often commute between Windhoek and Okakarara where his family village is located. During his interview, the appellant had confirmed that he lived in a village called Okotjituldu. In his statement dated 26 November 2021 the appellant said:
"I tried to live in Swako and I was also driving a cab one evening whilst I was driving I was ambushed by a large group of people who were masked. The people took the car and everything..."
13. Mr Mohzam submits the evidence is that the appellant was living in Swako when he was assaulted. Mr Mohzam referred to the SEF interview in which the appellant said that after the 'court cases' ended at the end of 2016 (Q. 153) he had spent the whole of 2017 working hard and saving to leave the country (Q.156). The appellant went on to claim in interview that he had remained in Namibia for about a year after the court case was completed and he did not have any problems with his uncle during that time because he was in hiding. (Q.157 and 158). The appellant confirmed that he left Namibia in December 2017 (Q.164). The appellant said he was able to avoid being detected by his uncle during the year that he spent in hiding because he tried not to go to the places where he had been attacked. He was in Swako and was renting a room. He continued to work as a taxi driver in Swako. (Q.171 to 175). When asked how he was able to avoid detection by his uncle whilst he was working as a taxi driver, the appellant said: Q.176)
"I was not going to the well know places where he could trace me and I changed the way I went and sometimes I would do a night shift and sometimes late and that's the way I decided to hide from him and not to reach everyone and stay in the areas that were well less known"
14. Mr Mohzam referred to the background material before me concerning sufficiency of state protection set out material published by the Immigration and Refugee Board of Canada on 8 August 2012; 'Namibia: Crime situation; police and state response including effectiveness; availability of witness protection', at sections 2.1, 2.1.1, 2.2 and section 3 that address the Namibian Police, Police Corruption and Misconduct, the Windhoek Police and the Judicial system.
15. As far as internal relocation is concerned, Mr Mohzam refers to the facts concerning 'The Republic of Namibia' as set out in the respondent's decision. He submits that with a population of 2.5 million, it is a small country. The biggest city is Windhoek with a population of just over 268,000 and Swako has a population of only 25,000. He submits the appellant's uncle had been able to find the appellant previously when the appellant lived in Swako and he would be able to find the appellant again.
16. In reply, Ms Arif adopts the matters set out in the respondent's decision concerning 'sufficiency of protection' and 'internal relocation'. Se submits the background material relied upon by the respondent is more recent than the report from the Immigration and Refugee Board of Canada published on 8 August 2012 that is relied upon by the appellant. Ms Arif submits the appellant was able to remain in Swako for a year after the 'court case' had ended, and there is no evidence that the appellant's uncle is still looking for the appellant and has any interest in the appellant now. She submits that even if the appellant could not return to his home area because of any local influence his uncle may have, there is no evidence to establish that it would be unduly harsh for him to internally relocate elsewhere in Namibia.
Decision
17. The appellant has appealed under s82(1) of the Nationality, Immigration and Asylum Act 2002 against the decision of the respondent to refuse his claim for asylum and humanitarian protection. The appellant bears the burden of establishing his claim to the lower standard. There is already a finding that the appellant does not fall within the Refugee Convention.
18. The appellant made his claim for asylum on 11 September 2021. That is, before the 'commencement date' for the relevant sections of the Nationality and Borders Act 2022 ("the 2022 Act"). The appeal is therefore to be assessed without reference to the statutory changes set out in sections 31-36 of the Nationality and Borders Act 2022. The issue is whether the appellant qualifies for humanitarian protection or leave to remain on Article 3 grounds. The criteria to be met for an individual to be granted humanitarian protection was set out in paragraph 339C of the Immigration Rules, which as at the time of the respondent's decision said:
" Grant of humanitarian protection
339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and
(iv) they are not excluded from a grant of humanitarian protection.
339CA. For the purposes of paragraph 339C, serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
19. In reaching my decision I have considered all of the evidence presented to me, whether I refer to it specifically or not. I have also had regard to the submissions made by both Mr Mohzam and Ms Arif and I have regard, in particular, to the material highlighted by them before me. I do not consider it necessary to address everything that is said. I have had in mind throughout, the preserved findings that I have set out at paragraph [7]. I proceed on the basis that there is a finding that the core of the appellant's account is accepted and that appellant was attacked as he claimed. The appellant's uncle may be an individual who has some measure of influence and power in his locality. The appellant did try to live elsewhere in Namibia (Swakopmund) but was nonetheless found by his uncle at that time.
20. The fact that on he preserved findings, the appellant has already been subject to serious harm is to be regarded as a serious indication that there is a real risk of suffering serious harm, unless there are good reasons to consider that such serious harm will not be repeated. Although the preserved findings regarding past events point towards an indication of the real risk of future harm, I must consider whether there are good reasons to consider that such harm will not be repeated. To that end, as Mr Mohzam accepts FtT Judge Shanahan concluded that there is insufficient evidence that the appellant's uncle is so influential or powerful to be able to know the appellant has returned or to locate him if the appellant lives elsewhere. FtT Judge Shanan went on to say that although the appellant's uncle found him previously in Swakopmund, at that time, he was looking for him and there would now be no reason for the uncle to be aware of his return to another part of Namibia.
21. It is clear that on the evidence, the appellant was able to report matters to the police. I have considered whether the appellant will be at risk in his home. In his witness statement the appellant claims he was born in Windhoek and that "he had lived there for most of his life before eventually leaving Namibia". He claims that he "would often commute between Windhoek and Okakarara where his family village is located". During interview, the appellant said that he lived in a village called Okotjituldu. The evidence before me regarding the appellant's home area is vague. The geographical distance between Windhoek to Okakarara is over 290km. I have therefore considered whether there is a sufficiency of protection for the appellant in Windhoek or Okakarara.
22. The required minimum standard of protection is often referred to as the Horvath standard - Horvath v Secretary of State for the Home Department [2001] 1 AC 489 - in which the House of Lords held that the standard to be applied is not to eliminate all risk but a practical standard, which takes proper account of the duty which the state owes to its citizens. It was accepted that certain ill-treatment may still occur even if the government is willing and able to prevent it, although serious discrimination or other offensive acts committed by part of the population may constitute persecution if they are knowingly tolerated by the authorities or if the authorities refuse, or are proved unable, to offer effective protection. A claimant in those circumstances may qualify for protection.
23. The report published by the Immigration and Refugee Board of Canada on 8 August 2012 that is relied upon by Mr Mohzam draws upon the US Department of State's Country Reports on Human Rights Practices for 2011 regarding the structure of the Namibian Police and refers to other background material, which show the police lack the resources, training and personnel to effectively deter street crime and to fully respond to an investigate reported crimes. Equally there is evidence in Country Reports that the police and its leadership has cooperated and helped in corruption and human rights violations investigations. There is reported to be concern over corruption within the police force but also evidence that over 160 police officers had been discharged between January and July 2012; some of the fired officers reportedly collaborated with criminals or were "involved with crime syndicates", and 25 other officers were on suspension for "indiscipline". The report refers to the Police Chief Inspector of Namibia indicating that since 2007, 105 officers had been suspended from the police and 9 had been dismissed due to various offenses, including "corruption, pointing of firearms, rape, extortion, murder, attempting to defeat the course of justice, fraud and theft of exhibit money" As far as the judicial system is concerned, the report sates that sources report Namibia's judicial system is inefficient and is subject to long delays.
24. In her decision the respondent refers to more recent background material at paragraphs [42] to [45], including background material from the US State Department, 2020 Country Report on Human Rights Practices: Namibia 31 March 2021. The background material relied upon by the respondent demonstrates the Namibian government has effective mechanisms to investigate and punish abuse and corruption and continues to do so. The government took steps to prosecute or administratively punish officials who committed abuses, whether in the security services or elsewhere in the government.
25. As the respondent noted, on his own account, the appellant approached the authorities on multiple occasions resulting in court cases on two occasions. In the end, those court cases came to nothing. Judge Shanahan recorded the appellant's claim that his uncle is an influential man "who previously worked for the government". He does not now work for the government and is a 'non-state actor'. Although the appellant's uncle has been found to be "an individual who has some measure of influence and power in his locality", the extent of that power and influence remains unclear. Having considered the background material, I am satisfied that even in the background material relied upon by the appellant dating back to 2012, positive steps were being taken to tackle corruption amongst the police. There is in the respondent's decision more recent evidence of the government taking effective measures to investigate and punish abuse and corruption. Even if the appellant's uncle has some local influence, the evidence establishes that there is a functioning police force and although the judicial system in Namibia may be inefficient and is subject to long delays the authorities in Namibia are in general able to provide citizens with effective protection to the appropriate standard set out in Horvath. I find therefore that there is sufficient protection available to the appellant to the required standard, in Windhoek and Okakarara, and indeed elsewhere in Namibia.
26. In any event, even if the uncle has some measure of influence and power in his locality such that the appellant cannot return to his home area, it is in in my judgment open to the appellant to internally relocate. The respondent states in her decision that based on the individual circumstances of the appellant's claim and the background information referred to in the decision, it is reasonable to expect the appellant to relocate to another area of Namibia, such as Rundu or Walvis Bay. The appellant's response as set out in his witness statement dated 26 November 2021 is imply that he cannot relocate anywhere else in Namibia because he has tried before when he went to Swakopmund. He claims he does not have any other financial means to establish himself in a different area and that his uncle will use his wealth and influence to locate him.
27. As I have said, FtT Judge Shanahan concluded there is insufficient evidence that the appellant's uncle is so influential or powerful to be able to know the appellant has returned or to locate him if the appellant lives elsewhere. It is accepted that the appellant's account is that his uncle found him previously in Swakopmund, but the judge said it is also the case that at that time the appellant's uncle was looking for him and there would now be no reason for the uncle to be aware of his return to another part of Namibia. I accept and find, as Ms Arif submits, there is no evidence before me that the appellant's uncle is still looking for the appellant or has any on-going interest in the appellant.
28. On any view of the evidence there is nothing in the facts which establishes even on the lower standard, that the appellant's uncle is a man with anything other than a degree of local power. There is scant evidence of the extent of the measure of influence and power he holds even in his locality. The fact that he has any sway in one part of the country is no indication that he holds the sort of power and influence which would enable him to pursue the appellant into another area of Namibia. In reaching that conclusion I do not require the appellant to corroborate his account; I require him to set out an account which justifies international protection. The former is objectionable in refugee status determination, the latter is not. The facts asserted by the appellant do not, I find, suggest that his uncle is someone with power and influence throughout Namibia.
29. In summary, I do not consider there to be any reason why the appellant would not be safe in the areas identified by the respondent, such as Rundu or Walvis Bay. The difficulties with the appellant's uncle now occurred some years ago and there is no current suggestion of the appellant being pursued by his uncle. The respondent confirms in her decision that freedom of movement is a constitutionally guaranteed right generally observed in practice. On the findings made by the FtT there is simply no reason to think that the appellant's uncle would have either the wherewithal to discover that the appellant had returned to Namibia, or the inclination to pursue him in areas such as Rundu or Walvis Bay.
30. I must therefore consider whether it would be unduly harsh for the appellant to relocate to Rundu or Walvis Bay. I take account of the fact that he has never lived there. The appellant's evidence is that he worked as a Taxi driver in Namibia and he confirms in his statement dated 26 November 2021 that the work is well paid. He was able to live in Swakopmund for a period of about 12 months before he left Namibia without detection by his uncle and was able to work and support himself living in rented accommodation throughout that period.
31. Having considered the background evidence as a whole, I consider the position to be as follows. The appellant is a fit and healthy young man who has experience of working in Namibia as a taxi driver and supporting himself. I find that the appellant would be able to establish himself in other parts of Namibia, including Rundu or Walvis Bay without suffering undue hardship.
32. I therefore conclude that there is sufficient protection available to the appellant in Namibia, but even if he is at risk in his home area, the appellant could relocate safely and reasonably to Rundu or Walvis Bay. On any view of the evidence, I find, internal relocation provides a good reason for concluding that the serious harm which befell the appellant in the past would not be repeated.
33. The appeal is therefore be dismissed on protection grounds.
34. I record that no alternative arguments were pursued before me on Article 3 grounds.
Notice of Decision
35. The decision of the First-tier Tribunal having been set aside, I remake the decision on the appellant's appeal by dismissing it on international protection grounds.
V. Mandalia
Upper Tribunal Judge Mandalia
Judge of the Upper Tribunal
Immigration and Asylum Chamber
4 April 2025