KC (Gambia) v The Secretary of State for the Home Department

In an asylum appeal, assessment of sufficiency of state protection and internal relocation requires a broad, practical evaluation of the claimant’s accepted evidence, personal circumstances, expert evidence, country information and country guidance. General evidence of a functioning police force, population size or tribal affiliation cannot replace an assessment of the protection and relocation actually available to the individual. The claimant must provide clear evidence of insufficient protection, but the tribunal must not impose an additional burden through unsupported assumptions. An appellate tribunal may intervene only on a proper error of law and must give effect to accepted evidence when remaking a decision. Further evidence on a second appeal must satisfy the requirements identified in [1954] 1 WLR 1489.

KC, a Gambian citizen, claimed asylum on the basis that her family would force her to become an FGM practitioner after her mother’s death, exposing her to serious harm if she refused. The First-tier Tribunal accepted her account and allowed the appeal on Refugee Convention grounds, alternatively granting humanitarian protection under paragraph 339C of the Immigration Rules.

The Upper Tribunal allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s determination and dismissed KC’s appeal after remaking the decision. The issues before the Court of Appeal were whether the Upper Tribunal had erred in finding inadequacy of reasoning on state protection and internal relocation, whether it had properly remade the decision, and whether further evidence should be admitted.

Appeal allowed. The Upper Tribunal had no proper basis for setting aside the First-tier Tribunal’s determination, and the First-tier Tribunal’s decision was restored.

1. First-tier Tribunal’s reasoning. The First-tier Tribunal’s conclusions on sufficiency of protection and internal relocation were clear and intelligible. They were soundly based on KC’s evidence, her husband’s evidence, Dr Kea’s expert evidence, the country information and the country guidance in [2013] UKUT 62. The tribunal had correctly directed itself and had not placed an impermissible burden of proof on the Secretary of State.
2. State protection and internal relocation. The assessment had to be broad and practical. It required proper consideration of the accepted evidence concerning KC’s family, the risk of identification and tracing, the likely protection available to her personally, and the country material. The First-tier Tribunal had not confused the risk of identification with persecution, or the risk to a potential FGM victim with the risk faced by a person expected to perform FGM. General assumptions about the size of the Gambia, KC’s tribe or the existence of a functioning police force did not answer the individualised assessment required by the Immigration Rules.
3. Remaking the decision. In remaking the decision, the Upper Tribunal failed to give proper effect to accepted evidence and substituted unsupported general conclusions for the First-tier Tribunal’s findings. The arguments in the Respondent’s Notice did not disclose an error of law.
4. Further evidence. Obiter, the further evidence would not have been admitted. Applying [1954] 1 WLR 1489, material predating the Upper Tribunal hearing had not been shown to be unavailable with reasonable diligence and had not been shown probably to influence the result. The issue did not arise because the appeal succeeded on the first ground.

The First-tier Tribunal’s determination of 11 July 2016 was restored. The Secretary of State was ordered to pay KC’s appeal costs.

• Court of Appeal (Civil Division) — Appeal allowed. The First-tier Tribunal determination promulgated on 11 July 2016 was restored: [2018] EWCA Civ 2847.
• Upper Tribunal (Immigration and Asylum Chamber) — On 20 October 2016, allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision, remade the decision and dismissed KC’s appeal.
• First-tier Tribunal — On 11 July 2016, allowed KC’s appeal on Refugee Convention grounds, alternatively under paragraph 339C of the Immigration Rules.
• Upper Tribunal (Immigration and Asylum Chamber) — In July 2015, allowed KC’s earlier appeal, set aside the original First-tier Tribunal decision and remitted the matter for rehearing.
• First-tier Tribunal — In February 2015, dismissed KC’s asylum, humanitarian protection and Article 8 appeals.