EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Carloway Lord Clarke Lord Hardie	[2012] CSIH 65 XA41/11 OPINION OF THE COURT delivered by LORD CARLOWAY in application for leave to appeal by OCO Applicant; against a decision of the Upper Tribunal (Immigration and Asylum Chamber) _______________

Act: Bryce; Drummond Miller LLP

Alt: Lindsay QC; Office of the Advocate General

26 July 2012

[1] The applicant is a Nigerian citizen. She is said to be well educated, being a former teacher of mathematics and head teacher. She has three children aged 7, 6 and 4 with her husband. Her husband is a pastor in, and perhaps the founder of, a gospel ministry. He entered the United Kingdom as a student, along with the applicant, on a student visa in November 2007. The applicant's leave was valid until 31 January 2008 and was renewed until 31 October 2009. She claimed asylum on 13 April 2010.

[2] The applicant's account at interview, and before the First Tier Tribunal, was that her husband had subjected her to violence. He had accused her of being a witch. He had threatened to take her back to Nigeria and kill her there. He had, according to the applicant, killed his two previous wives. The account of her husband being previously married, far less of his having killed his former wives, was not believed. However, the Tribunal did accept that the applicant had been a victim of violence at the hands of her husband and that she had separated from him because of that in late 2010. The Tribunal noted, having regard to the country information, that domestic violence is generally accepted in Nigeria and that there was, in that respect, inadequate state protection. The Tribunal also accepted that the applicant had been labelled as a witch by her husband and that witch hunting was prevalent in her home state of Edo. The Tribunal was prepared to proceed on the basis that, although the applicant's husband was still in the United Kingdom, he had told his relatives in Nigeria that the appellant was a witch. The Tribunal held that, if she returned to Nigeria, she was likely to be the subject of discrimination and possible harm. The Tribunal held also that it would be unduly harsh for the applicant to relocate with her children in Nigeria. She had no family in any other area of Nigeria and was at risk of being discovered as a result of, amongst other things, the reach of her husband's church.

[3] The decision of the First Tier Tribunal was successfully appealed by the respondent to the Upper Tribunal on the basis that there had been little evidence of the reach of her husband's church in Nigeria and no evidence to support the Tribunal's finding that the risk to the applicant extended throughout the country. The Upper Tribunal held that the applicant would be no worse than many other women in Nigeria, who flee their husbands, and that the First Tier Tribunal had failed to have regard to the fact that she would be far better off than many women in Nigeria. There had been no adequate reason, according to the Upper Tribunal, for excluding internal relocation. The Upper Tribunal refused leave to appeal on a similar basis as it had refused the appeal, notably that there was no evidence of a risk to the applicant throughout Nigeria or that internal relocation would be unduly harsh.

[4] The current application for leave to appeal is made on two grounds: first, there had been no error of law in the First Tier Tribunal's finding in fact that it would be unduly harsh for the applicant to relocate elsewhere in Nigeria and an adequate reason had been given for that finding; secondly, the Upper Tribunal had erred in holding that the First Tier Tribunal had reached the view that the risk to the applicant existed throughout Nigeria. There had been no such finding in fact on the part of the First Tier Tribunal.

[5] The essential elements of the decision of the First Tier Tribunal are contained in paragraph 38 of its determination. It reads as follows:

"I am satisfied that it would be unduly harsh for the appellant to relocate to another area of Nigeria. She would be a lone parent with three children. That fact would bring her to the attention of others. With regard to freedom of movement of women I refer to paragraphs 24.22 and 24.28 of the Country of Origin and Information Report. The evidence suggests that it would be difficult for the appellant and her children to relocate to another area of Nigeria and I am satisfied that it would be unduly harsh to expect the appellant and her children to do so. The appellant has no family support in another area of Nigeria. There is also the risk that she would be discovered through the reach of her husband's church, although there was no detailed evidence of the extent of the church's reach. The appellant's brother however, did say that the church had extended into Lagos."

The court considers that the Upper Tribunal erred in holding that the First Tier Tribunal had reached a conclusion that the risk to the applicant extended throughout Nigeria. There was simply no such finding in fact. So far as internal relocation is concerned, the First Tier Tribunal gave clear reasons in paragraph 38 as to why it was unduly harsh for the applicant to relocate. She was a single parent with three young children. She had no family support elsewhere in the country. There was at least a risk that she would be discovered as a result of her husband's position in the church. Although another tribunal might have reached a different decision on the evidence, it cannot be said that this Tribunal's decision of fact amounted to an error of law. It was based on the evidence and adequately reasoned in the written determination.

[6] In resisting the application, and maintaining that the Upper Tribunal had been correct in its conclusions on both aspects of the application for leave to appeal, the respondent referred R (Umar) v SSHD [2008] EWHC 2385 Admin and R (Obasi) v SSHD [2007] EWHC 381 Admin However, when these cases are examined, the court does not consider that they are of material assistance in relation to the different circumstances of the applicant as a single parent with three children.

[7] It was accepted by the respondent that, if the court perceived that there were arguable grounds for appeal in terms of the test in Hoseini v Secretary of State for the Home Department 2005 SLT 550, since the point was such a narrow one the appropriate course of action in this particular application would simply be for the court to allow this appeal and to reinstate the decision of the First Tier Tribunal. The court does consider that there are such grounds. Accordingly it will accede to that motion, grant leave to appeal, hold the application for leave to appeal to be the appeal, allow the appeal and reinstate the decision of the First Tier Tribunal.