BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

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


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2025000106 [2025] UKAITUR UI2025000106 (6 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025000106.html
Cite as: [2025] UKAITUR UI2025000106

[New search] [Printable PDF version] [Help]

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI- 2025-000106

(PA/55367/2022)

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 6 th of May 2025

 

Before

 

UPPER TRIBUNAL JUDGE BRUCE

DEPUTY UPPER TRIBUNAL JUDGE CONNAL

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

AND

 

ID (GUINEA)

Respondent

Representation :

 

For the Appellant: Mr Mullen, Senior Home Office Presenting Officer

For the Respondent: Mr Winter, Advocate instructed by Latta & Co Solicitors

 

Heard in Edinburgh on 9 April 2025

Anonymity

 

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

DECISION AND REASONS

 

1.               The Respondent is a national of Guinea born in 2002. On 2 December 2024 his appeal was allowed on protection and human rights grounds by the First-tier Tribunal. The Secretary of State now has permission to appeal against the decision. This appeal is only concerned with the protection grounds upheld by the First-tier Tribunal, in particular whether the Respondent can be said to be a member of a 'particular social group'.

 

The Decision of the First-tier Tribunal and Matters in Issue

2.               The basis of the Respondent's claim for protection was as follows. His father was relatively wealthy, and owned a large estate. He had two wives. In 2016, when the Respondent was just 14, his parents were killed in a car accident. His younger sister was sent away to live with a grandmother, but he and his brother were required to remain in the family compound with his father's first wife, whom he refers to as his stepmother. She, and those around her, physically abused the boys, forcing them to work long hours and punishing them if they refused to do so. Expert evidence produced to the Tribunal confirmed that this kind of situation is not unusual in Guinea. In polygamous families, the children of other wives are, without the protection of blood relatives, vulnerable to such exploitation and abuse. The Respondent managed to secretly save enough money to send his little brother away. Sometime later a friend of his father's, who was then living in Germany, arranged a passport and visa for the Respondent, and paid for his travel to the UK. The expert evidence before the Tribunal was that the Respondent would, if he returned to Guinea, be subject to stigmatisation by society due to him violating the social norms of his tribe, by disobeying and escaping his stepmother. There would be an expectation that his stepmother should severely physically punish him "to reinstate the social balance". The expert further considered it likely that if he sought to avoid the family, the Respondent would likely find himself destitute, and extremely vulnerable to traffickers and/or his stepmother and her family.

3.               The First-tier Tribunal accepted all of this, and allowed the appeal on both protection and human rights grounds. In doing so it expressly accepted the Respondent's claimed age, that he is a vulnerable witness because of his experiences, young age and mental health issues, and that as a child he cannot be held responsible for actions of the family friend who fraudulently obtained a passport and visa on his behalf. None of those findings are challenged in this appeal. Rather, the focus of the Secretary of State's case is the First-tier Tribunal's decision to proceed on the basis that the Respondent has made out a claim under the Refugee Convention on the basis that he is at risk of persecution for reasons of his membership of a particular social group. It is submitted that the First-tier Tribunal has misdirected itself in the following respects:

i)                In failing to find that the Respondent would not have a distinct identity or would be treated differently by surrounding society because of any claimed characteristic. The grounds go on to question whether there was any objective - that is to say country background - evidence before the Tribunal capable of demonstrating that male victims of domestic abuse in Guinea are treated or viewed differently by society;

ii)              In failing to provide any adequate reasons for why the Respondent's fear of his stepmother amounted to an "innate characteristic that singles him out for different treatment by the rest of society".

 

Error of Law: Discussion and Findings

4.               The relevant law is set out by the Upper Tribunal at paragraphs 90-111 of EMAP (Gang Violence), Convention Reason) CG [2022] UKUT 335 (IAC). In summary, the law has developed two tests to determine whether a claimant can be said to be a member of a 'particular social group' under the Refugee Convention. The first, we can call the 'innate characteristic' test. When members of that group share an innate characteristic, or common background that cannot be changed, or they share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it, they form a particular social group. The second, we can call the 'social visibility' test. Here the group has a distinct identity in the relevant country, because the members are perceived as being different by the surrounding society.

5.               In EMAP the Tribunal explored the evolution of these two tests, and observed how as a matter of fact they will quite often overlap. Gay men, for instance, have the innate characteristic of their homosexuality, but in many societies are also perceived as being different by the people around them. There has been significant legal debate over whether a claimant must meet both of these tests in order to qualify under the Refugee Convention, or whether only one will do. We need not rehearse all of that here. It suffices to say that in any claim for asylum made in this country after 28 June 2022, both tests will need to be met, since that is what parliament has decided: see section 33(2) Nationality and Borders Act 2022. In any claim that pre-dates the commencement of this statutory provision, in the UK we will apply the common law, that is to say the formulation preferred by their Lordships in Fornah (FC) v Secretary of State for the Home Department [2006] UKHL 46: that meeting either one of the tests would be sufficient.

6.               The Respondent in this case claimed asylum on 4 November 2019. This case is not therefore one to which section 33 NABA 2022 applies. He need only demonstrate that he meets one or other of the relevant tests: he must either show that he has an 'innate characteristic' or that he is part of a group that has 'social visibility' in Guinea.

7.               The Secretary of State's first ground is entirely concerned with whether the 'social visibility' test is met. For the Respondent, Mr Winter points out that this is not relevant, since the basis of the First-tier Tribunal's decision was that the Appellant has the 'innate characteristic' of being a member of his family. Whilst in certain circumstances family groups can have social visibility in the society from which they come (see for instance paragraph 104 EMAP), he is not here required to demonstrate that. Having considered the dicta in Fornah, and having had regard to the fact that this is an appeal to which NABA 2022 does not apply, Mr Mullen very realistically accepted that he could no longer pursue ground (i).

8.               The second ground is slightly more problematic. At first glance it is concerned with whether the Respondent in fact has an 'innate characteristic', but properly understood it is simply an extension of the central challenge under ground (i). We say that for two reasons. The first is the formulation in the grounds itself: that the Respondent does not have an "innate characteristic that singles him out for different treatment by the rest of society". The second is that there is no challenge to the assertion that the Respondent is a member of his own family. Nor is there any challenge to the facts as found by the First-tier Tribunal that he suffered persecutory ill-treatment as a result. Nor, we would add, is there any challenge to the First-tier Tribunal's conclusions that that risk is ongoing.

 

Decisions

9.               The decision of the First-tier Tribunal to allow the appeal on human rights grounds is not challenged and is upheld.

10.           The appeal against the decision of the First-tier Tribunal to allow the appeal on protection grounds is dismissed. The First-tier Tribunal decision to allow the appeal on protection grounds is therefore to stand.

11.           There is an anonymity order in this protection appeal.

 

 

Upper Tribunal Judge Bruce

Immigration and Asylum Chamber

30 th April 2025

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010