Background

In Secretary of State for the Home Department v Harsh Lata [2023] UKUT 163 (IAC), Ms Lata, an Indian national, entered the UK with her children as a visitor in December 2011 and sought asylum in 2015, asserting fear of her former husband. Her application was refused and her appeal was dismissed [1&2]. Her elder son was removed to India but subsequently secured entry clearance as a spouse, permitting him to return to the UK – where he currently resides [7]. Her younger son claimed asylum in September 2017, having turned 18, but was unsuccessful [8].

The interest of the case for students of law and religion is that Ms Lata submitted further representations in January 2020 against the refusal of her application, asserting that she could not return to India because of her conversion to Christianity. She had started attending church in January 2018 and had been baptised in April 2019. The Secretary of State accepted that her further submissions constituted a fresh claim, but refused to recognise her as a refugee and grant her leave to remain [9].

Before the First-tier Tribunal, the Secretary of State questioned the genuineness of Ms Lata’s conversion to Christianity. Alternatively, it was submitted that there was no risk to her if she relocated to Goa, which has a large Christian population:

“No reference was made by counsel for the Secretary of State in his closing submission to either son being able to relocate to India with their mother. Indeed, the Secretary of State’s recorded position was that the children could keep in touch with their mother and visit her in India on occasion” [11].

The lower tribunal had found Ms Lata to be a genuine convert to Christianity who would practise her religion openly on her return to India and look to inform others about Christianity. She would be vulnerable if returned because of a lack of family support and she “would face persecution from non-state agents consequent to her religion, with no sufficient State protection being available to her”. Further, there was “no internal relocation alternative available in Goa, as [Ms Lata] would be lost in an unfamiliar area of India, would not enjoy access to the support that she requires and would be vulnerable to such an extent as to make relocation unduly harsh” [12]. The Secretary of State appealed.

The judgment

The Secretary of State contended that the FtT had materially erred in law by failing to consider whether one or both of Ms Lata’s sons could accompany her to India [16]. Though not expressly stated in her decision letter, the Secretary of State’s position had been that the starting point for the FtT should properly have been that the younger son, now an adult, could return to India with his mother [18]. The Upper Tribunal also observed that

“the Secretary of State’s position in her decision letter was that she did not accept HL to have genuinely converted. There was no consideration of internal relocation and, consequently, no express consideration was given to whether the sons could relocate to Goa with their mother” [19: emphasis added].

The Upper Tribunal was satisfied, on consideration of events leading up to the hearing before the FtT, that the Secretary of State had not expressly identified as an issue before the FtT that one or both of Ms Lata’s sons could accompany her to Goa to ensure that internal relocation to Goa would not be unduly harsh [29]. Further:

“It is trite that the hearing before the FtT is not a lap in the warm-up for a subsequent appeal in which the party’s case can be differently articulated. Parties are expected to advance their cases to their best advantage, permitting a judge to decide between two competing sets of submissions that identify the full extent of the parties’ positions” [31].

The UT concluded that the Secretary of State’s present reliance upon an earlier judicial finding that it would be in the interests of Ms Lata’s younger son, while a minor, to return to live with his mother in India had not been part of her case before the FtT. The Robinson approach – derived from the judgment in R (Robinson) v Secretary of State for the Home Department & Anor [1998] QB 929, under which permission to appeal to the UT should be granted on a ground that was not advanced by an applicant for permission only if the judge was satisfied that the ground identified had a strong prospect of success – in the jargon, “Robinson obvious” – applied only in favour of the individual seeking asylum: “not in favour of the Secretary of State, except in an identified exceptions such as exclusion or the statutory presumptions as to criminality”. Those exceptions did not arise in the present case [35]. Appeal dismissed [36].