Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03083/2015

THE IMMIGRATION ACTS

Heard at Bradford Upper Tribunal
Decision & Reasons Promulgated
On 26th July 2016
On 8th August 2016

Before

upper tribunal DEPUTY judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

a m t
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Mr Tetty, Counsel

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As a protection claim, it is appropriate to continue that direction.

DECISION AND REASONS

1. The Secretary of State appeals with permission against the First-tier Tribunal (Judge Turnock) which in a decision promulgated on 14th April 2016 allowed the Respondent's appeal against deportation, under Article 3 ECHR.
2. For the sake of clarity, I shall refer throughout this decision, to the Secretary of State as "the Respondent" and to AMT as "the Appellant" reflecting their respective positions before the First-tier Tribunal.
3. This is an appeal which has generated much litigation. There have been two hearings before the First-tier Tribunal (decisions promulgated 30 July 2015 and 14th April 2016), an Upper Tribunal hearing (decision promulgated 10th February 2016) and several applications for permission to appeal.
Background
4. The Claimant is a citizen of Jamaica born on 27th January 1970. She arrived in the UK on 18th October 2000 as a visitor. She subsequently made application to remain as the spouse of a British citizen which was ultimately refused and she became appeal rights exhausted in 2005.
5. On 11th March 2005 she was convicted of conspiracy to supply class A controlled drugs (heroin and crack cocaine) and sentenced to four years' imprisonment. She applied for asylum on the basis that she would be at risk on return to Jamaica from co-accused against whom she had given evidence and who would either themselves or through their network system, seek reprisals against her and her family members. In respect of her asylum claim the appellant was interviewed on 3 occasions, the last one being on 21st November 2014.
6. On 11th December 2012 before her last asylum interview, she was convicted on two counts of conspiracy to supply class A controlled drugs and sentenced to three years and six months' imprisonment. A notice of liability to automatic deportation was served and a further asylum interview conducted (the 21st November interview). The Respondent then made a deportation order dated 4th February 2015.
7. The Appellant appealed against the making of the deportation order on the basis that she was entitled to be granted refugee status and her rights under Articles 3 and 8 of the ECHR would be breached by her removal. The appeal came before the FtT (the 30th July 2015 decision)
First FtT Hearing
8. The FtT took evidence from the Appellant and gave consideration to the certificate issued by the Secretary of State under the provisions of Section 72 of the Nationality, Immigration and Asylum Act 2002. It concluded that the Appellant was not excluded from consideration as to whether she was entitled to protection of the Refugee Convention and discharged the certificate. The judge however dismissed the asylum claim because he was not satisfied that the evidence presented established that informers against gangs in Jamaica, could be considered to fall within the category of a particular social group such as to bring them within the Refugee Convention.
9. He went on to consider therefore whether the Appellant had shown that she would be at Article 3 risk from non-state agents, from which the state would not be able to provide reasonable protection and accordingly whether the appeal should be allowed under Article 3 of the ECHR. He found that there was such a risk and allowed the appeal on Article 3 grounds.
10. The judge also considered whether the Appellant's Article 8 ECHR rights would be breached. For the purposes of this decision although the appellant has 7 children, it is correct to say that only 3 of these children weigh heavily in this decision. The first is J1 now 13 years of age and who is a UK national and in local authority care, J2 now 5 years old and who is a Jamaican national and J3 now 3 years old who is also a UK national. The Appellant is the sole carer for J2 and J3 and it has always been her case that if deported she would take J2 and J3 with her. In the light of his finding that the Appellant was at Article 3 risk, the judge concluded that it would be unduly harsh on all 3 children to remove her, but particularly with regard to her younger children. He found that the risk amounted to very compelling circumstances over and above the factors set out in paragraph 398/and S.117C of the Rules. Therefore he also allowed the Appellant's appeal under article 8 ECHR.

Permission to Appeal Decision of 10th July 2015
11. The Respondent sought permission to appeal on three grounds summarised below.
The FtT had reversed the burden of proof in concluding that the Claimant's appeal should be allowed under Article 3. The judge had required the Secretary of State to produce information as to the current whereabouts of the co-accused, to say whether they had been deported to Jamaica, and to show whether they were related to various Jamaican gangs.
The judge's approach was inconsistent with the country guidance case of AB (Protection - criminal gangs - internal relocation) Jamaica CG [2007] UKAIT 00018. It was said that the judge had not properly turned his mind to whether there was viable internal relocation option available and without the Appellant being admitted into a witness protection programme.
The judge had erred in finding that there were very compelling circumstances in respect of Article 8. The findings were premised on the flawed Article 3 decision that the Claimant would have to live under the witness protection programme when there was no evidence of persecution in her home area.
12. Permission was granted and an error of law was found. In reaching its decision the Upper Tribunal said the following:
"22. In very many ways this is an absolutely outstanding determination. The judge has done an exceptional amount of work on this case. He clearly took a great deal of care in analysing the evidence, and was clearly frustrated that key facts could not be established.
23. I have carefully considered Miss Khan's submission that the judge allowed the appeal both on the basis that the Claimant's co-accused were linked to the Shower Posse and in Jamaica, and on the basis that that had not been established. However, that is simply not clear from the text of paragraph 125.
24. Moreover in saying that the Secretary of State should have responded appropriately, by which I presume he meant by providing evidence in relation to the deportation of the co-accused, the judge clearly reversed the burden which always remains with the Claimant to prove her case, i.e. that she would be at risk from them in Jamaica.
25. Furthermore the judge has not based his assessment of real risk upon findings of fact but upon a number of surmises. It would have been open to him to reasonably conclude that [P] and [D] were deported to Jamaica since they were recommended for deportation and had served ten year sentences. Equally it would be open to him to conclude that [Mc], having been sentenced to six years, was in all likelihood deported. However, that is not how he phrased his decision.
26. So far as Ground 3 is concerned, if the judge erred in his assessment of risk, his view of whether there were very compelling reasons why the Claimant's removal would breach her Article 8 rights and those of her children is flawed.
27. There is less merit in Ground 2. The judge assessed the evidence in relation to the witness protection programme and was entitled to conclude at paragraph 139 that on the basis of the country information provided there were considerable doubts as to whether she would be admitted and if she were, whether it would provide adequate protection for her. He was entitled to conclude that in the absence of admittance to the programme relocation would not provide adequate protection.
28. Mrs Petterson was not in a position to assist with the remaking of this decision without her file. I canvassed with the parties whether the appropriate course, unusually, would be to remit this matter back to the same judge and neither had any objection.
29. In view of the amount of work that the judge has already put into this case, and his familiarity with it, the most economical course would be for this case to be remitted back to him to make an assessment of risk on return on the basis of the facts that he has already made. He needs to clarify whether it is his view that the co-accused have been deported to Jamaica. If the Secretary of State chooses not to provide any evidence about deportation at the next hearing that could be a reasonable inference. He also needs to say whether it makes any difference to his decision that they have any connection to the Shower Posse. If it does make a difference, then it is for the Claimant to prove that connection.
30. This matter is remitted back to Judge Turnock. There is no challenge to his conclusions on the asylum claim, nor to his findings of fact which are preserved, namely that the Claimant was at risk of reprisals in 2006 but there is no evidence of threats to members of her family in Jamaica since then and none to her."
The Second FtT Decision 14 April 2016
13. The matter came before Judge Turnock once more on 31st March 2016 for a further hearing. The judge properly directed himself in the terms set out by the Upper Tribunal. After further consideration he found that the Appellant would be at risk on return to Jamaica, on account of Article 3 ECHR rights being violated.
14. The Respondent once again sought permission to appeal the decision. This was initially refused in the FtT in a decision issued on 10th May 2016. In refusing permission Designated Judge Manuell said the following:
"1. The Appellant's appeal against the refusal of her protection claim raised after a deportation order had been made against her was again allowed on Article 3 ECHR and Article 8 ECHR grounds (following remittal to him for clarification of certain issues by the Upper Tribunal) by First-tier Tribunal Judge Turnock in a decision and reasons promulgated on 14 April 2016. The Appellant asserts that she is at risk of serious harm from criminal gangs in Jamaica if returned there, in part from having been an informer.
2. The Respondent's lengthy onwards grounds dated 27 April 2016 were in time. In summary the grounds contend that the tribunal reversed the burden of proof and engaged in speculation, failed to apply country guidance, erred in its approach to Article 8 ECHR (family life) and gave inadequate reasons.
3. The current proceedings have become somewhat tangled and it is easy to see why the Secretary of State is displeased by the judge's decision to allow the appeal. That decision may well be thought generous given the Appellant's deplorable criminal record. Nevertheless, there was no appeal against the remittal to the same judge by the Upper Tribunal (my emphasis) and it would have been odd for the judge not to have followed his previous assessment of the risks he considered the Appellant faced if returned. But ultimately the complaints against the decision amount to a sustained expression of disagreement. The judge's Article 3 ECHR findings were open to him and were based on objective evidence. Any excessive generosity or indeed legal error in relation to the Article 8 ECHR family life claim could not affect the sustainable decision to allow the appeal under Article 3 ECHR and hence the Appellant's ultimate success. No arguable material error of law has been identified."
15. The Respondent renewed her application to the Upper Tribunal. It was granted in the following terms:
"1. The Respondent seeks permission to appeal against the decision of FtTJ Turnock to allow the Appellant's appeal under Article 3.
2. The application is granted because it is arguable that the judge did not adequately reason the internal relocation decision (see AB (Protection - criminal gangs - internal relocation) Jamaica CG [2007] UKAIT 00018). (See [58] of the decision of the FtT).
3. It is arguable that the judge did not identify compelling circumstances in the context of 398 (c). It is arguable that the judge's assessment of unduly harsh was made without regard to the Appellant's criminal history (See MM [2016] EWCA Civ 450).
4. The ground relating to risk on return to home area is not as strong; however, I grant permission on all grounds."
Thus the matter comes before me to decide whether the decision of Judge Turnock discloses an error of law requiring the decision to be set aside and remade.
Error of Law Hearing Before Me
16. Before me Mr Diwnycz appeared on behalf of the Respondent and Mr Tetty on behalf of the Appellant. I clarified with the parties at the outset of the proceedings that what was before me was a narrow issue which in summary amounts to the following:
Did Judge Turnock make adequate finding in his second decision, to justify his conclusion that the Appellant would be at risk on return to Jamaica and that risk would amount to an Article 3 risk?
If the answer to the above question is "yes", is it then the case that the Article 3 risk identified would amount to compelling circumstances in the context of Section 398(c)?
17. Both representatives were in agreement that those two questions pose the specific issues before me. I am grateful to Mr Diwnycz for confirming that if I were to resolve the Article 3 issue in the Appellant's favour, then it would be accepted that the other grounds effectively fall away. Mr Diwnycz did not seek to dissuade me that the terms of the grounds seeking permission against the 14th April 2016 decision appear to be an attempt to reargue that which had already been dealt with by Judge Taylor in her decision of 10th February 2016. It was agreed therefore that the permission given against Judge Turnock's second decision was limited, in the way I have set out above.
18. I heard submissions from both representatives. Mr Diwnycz confined his submissions to those set out above. Mr Tetty relied upon a Rule 24 response and highlighted the following points. He submitted that Judge Turnock in reaching his conclusions on the Article 3 risk to the Appellant, took into account the current country guidance case of AB. That outlined the power and influence and violence of gangs in Jamaica. He said that the judge had spent a great deal of time in his first decision considering the risk to the Appellant should she be deported to Jamaica. He had made clear findings that the Appellant had given evidence against her co-accused including violent gang members known as "P" and "D". It was the view of the police, certainly at that time, that the Appellant was at risk of reprisals from her co-defendants.
19. The judge reported at [54] of his second decision that it has now been established that the Appellant's co-defendants P and D were deported to Jamaica following the completion of their lengthy sentences following conviction for drug offences. The prosecution relied on the Appellant's evidence to gain those convictions.
20. Judge Turnock, made a further finding saying that it was as a result of the Appellant's evidence against them which ensured both P and D served lengthy prison sentences. He relied upon police information that their intelligence indicated that both P and D have access to firearms and are no strangers to violence.
21. The judge also found that the country guidance information led him to conclude that gang culture is much more prevalent in Jamaica than in the UK. Therefore he was satisfied that P and D have shown themselves to be violent gang members who would revert to that culture in Jamaica. The judge was satisfied that P and D will have access to a gang network in Jamaica and would be able to trace the Appellant without any real difficulty once they learned she was in the country. He relied upon the Appellant's evidence that another of her co-accused "Mc" has a relative who is a big noise in the Jamaican gang culture.
22. The judge further considered and found that he could not be satisfied that the Appellant would be admitted to a witness protection programme in Jamaica and therefore given the necessary protection she needed. In these circumstances, Mr Tetty submitted, it was clearly open to Judge Turnock to find that the Appellant would be at Article 3 risk and the judge's decision should stand.
Consideration and Findings
23. I find I am satisfied that the decision of Judge Turnock contains no error of law requiring it to be set aside. I now give my reasons for this.
24. The Appellant appeals against the making of a deportation order by the Respondent under Section 32(5) of the UK Borders Act 2007 - "automatic deportation", on the grounds that she has been convicted of a serious offence resulting in a term of imprisonment of three years six months.
25. The Appellant's appeal is on the basis that she falls within Exception 1 to Section 33(2) of the 2007 Act because to deport her to Jamaica, would amount to a breach of her rights under Article 3 ECHR.
26. I find that Judge Turnock in assessing this claim, firstly properly directed himself to the relevant statutory framework. There is no misdirection there.
27. Secondly the judge carefully proceeded to set out (in both decisions) the evidence which was before him. There was a great deal of evidence, but the judge spent considerable time setting out that evidence which in both decisions spreads over several detailed paragraphs. The evidence included the oral evidence of the Appellant together with documentary evidence.
28. Following an error of law being found in his first decision the judge proceeded in his second decision to set out fully the UT's findings and reasons and then directed himself on the task which was now before him.
29. A proper reading of the decision shows that the judge turned his mind to establishing that which he had been directed to do. He established that the Appellant's co-accused P and D were deported to Jamaica [54] and this led him to conclude that they are still there. I see nothing wrong with that finding based as it was on the evidence before him.
30. The judge then took into account, the evidence of P and D's past history, and this led him to the conclusion that both P and D are men of violence who are capable of causing life-threatening injuries to others. They have connections with gang members in Jamaica. This led him to conclude that there is a strong likelihood that P and D had not changed their ways. Again that was a finding that was reasonably open to the judge.
31. The judge then took into account that " Mc", another co-accused of the Appellant and of P and D, remains in the UK, but nevertheless has real connections with the violent gangs in Jamaica through a relative. This network would inevitably place the Appellant at great risk of reprisals. Accordingly piecing this information together, the judge concluded that there is a real risk that the Appellant's return to Jamaica and her whereabouts would soon be known once she arrived there. This would then place her at Article 3 risk [58]. I see nothing to show that the judge's sequential findings were in any way perverse or irrational (indeed it has not been suggested by Mr Diwnycz that they are) and therefore they were findings fully open to him.
32. The judge then went on to outline and assess whether there would be meaningful protection for the Appellant by way of a witness protection scheme. He examined the country guidance case, looked at the Country Information Report, but preferred to place reliance on a report by an expert - Dr Scott Long. The judge noted that Dr Long in his words, is "closely familiar with the human rights situation in Jamaica" [135].
33. Following Dr Long's report, the judge concluded as he was entitled to do, that the Appellant would not find meaningful protection from the authorities in Jamaica - the widespread reported corruption of the Jamaican police force, together with the fact that the Appellant participated in a foreign crime, would mean that witness protection was not a viable option for her. I find it was fully open to the judge to make those findings and there is nothing to show they are irrational or perverse.
34. In short I find that Judge Turnock has given a full and careful decision with reasons based on the evidence which was led before him. This is a sustainable decision and nothing that I have heard, merits overturning the decision for legal error.
35. As I set out earlier in this decision, it was agreed by both representatives that if I were to find that Judge Turnock has made sustainable findings on the Appellant's Article 3 risk, then it would follow that I would be bound to find in favour of the Appellant in her appeal against the deportation order and that the decision of the First-tier Tribunal must stand. For the foregoing reasons I do so find.

Decision

The appeal of the Secretary of State against the decision of the First-tier Tribunal dated 31st March 2016 (promulgated 14th April2016) is dismissed. The decision of the First-tier Tribunal therefore stands.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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

Signed C E Roberts Date 05 August 2016

Upper Tribunal Deputy Judge Roberts