Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03828/2008

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 October 2016
On 14 October 2016

Before

UPPER TRIBUNAL JUDGE WARR

Between

ts
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms C Bayati of Counsel instructed by S Satha & Co
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sri Lanka born on 28 October 1977. He appeals the decision of the respondent made over six years ago on 22 May 2008 to remove him and to refuse his asylum claim. On 3 April 2008 the respondent had found that the appellant was a person in respect of whom removal directions may be given under Section 10 of the Immigration and Asylum Act 1999 on the basis that he had used deception.

2. The background to the appellant's arrival in this country is that he applied in February 2004 for an entry clearance to come to the UK as a working holidaymaker. Although the application was initially refused, it appears that he successfully appealed the decision and he arrived in the United Kingdom on 27 April 2006. His working holidaymaker visa was due to expire on 6 April 2008. On 3 April 2008 he applied for asylum.

3. The appeal as can be seen has had a lengthy history. It first came before an Immigration Judge on 15 September 2008. The judge dismissed the appeal. There was a reconsideration hearing on 25 March 2009. While the Tribunal identified a material error of law in the decision of the Immigration Judge, it substituted a decision dismissing the appellant's appeal on all grounds for the reasons given in the decision. There was an application for permission to appeal to the Court of Appeal. The appeal was disposed of by consent proceedings on 8 October 2010. A fresh hearing was directed. There was then a lengthy delay before the matter in fact came to the Upper Tribunal. On 30 June 2015 the Tribunal directed there should be a Case Management Review hearing on 21 July 2015 at the Harmondsworth Hearing Centre.

4. The appellant's appeal then came before the Tribunal on 12 January 2016 when the hearing was adjourned until 3 February 2016.

5. The narrow issue taken before me at the hearing relates to a jurisdictional point. It was argued before the First-tier Judge that the removal decision that had been made in respect of the appellant was unlawful. This argument was raised before the First-tier Judge at the hearing on 12 January 2016 when the appellant was represented by Ms Allen. At the adjourned hearing the appellant was represented by Ms Bayati, who appeared before me. The relevant part of the decision of the First-tier Judge reads as follows:
"4. The first hearing before me was on 12th January 2016. On that occasion Ms Allen submitted that I had no jurisdiction to hear the appeal as the removal decision made on 22nd May 2008 was unlawful. The appellant had been served with Form IS151A on 3rd April 2008. That form indicated that the relevant immigration officer was satisfied that the appellant had used deception in seeking leave to remain. In the specific statement of reasons, it is recorded that the appellant had entered the UK on a valid working holiday visa. The appellant had said that he had problems in Sri Lanka before leaving the country and he failed to disclose this to the ECO and also to the IO at the time of arrival in the UK.
5. Ms Allen submitted that the appellant had entered the UK lawfully and was not an overstayer. Events had deteriorated whilst he was in the UK and he had then decided to claim asylum. There had been no verbal deception. That was consistent with the account given by the appellant in his asylum interview. The appellant had been quite clear that he had not said that he intended to claim asylum in the UK. The appellant had made a subject access request to the respondent for his file. He had not received a response.
6. Ms Bell provided me with a copy of the Form IA126E which was completed by an immigration officer when the appellant claimed asylum on 3rd April 2008. That form includes a section entitled, 'Illegal Entry Contention'. The form indicates that the appellant was interviewed under caution on the same date. It continues,
'The subject admitted to the interviewing officer that on arrival, when questioned by an Immigration Officer, stated that he had come to the United Kingdom to work. However, it had been his true intention to claim asylum once in the United Kingdom, deceiving the Immigration Officer on the control'.
7. Ms Bell also provided me with a file minute completed by Sonya Poulter who had decided that the IS151 decision should not be withdrawn. She had made enquiries with the Immigration Officer who conducted the interview. That officer had confirmed that the tape recording of the interview would have been destroyed; probably around 2012. The IS126E was an official record of a caution interview.
8. I considered that it was more likely than not that the tape of the interview of 3rd April 2008 had been destroyed given the length of time since that interview. I took into account that the form IS126E had been completed at the time of the interview. That form clearly records that the appellant's intention when he entered the UK was to claim asylum. On the balance of probabilities, I was satisfied that the respondent had demonstrated that the appellant used deception in seeking leave to remain in the UK and that the removal decision was therefore lawful. I determined that I had jurisdiction to hear the appeal.
9. Ms Allen then made an application to adjourn the hearing to enable the appellant to provide evidence in order to update his case. She said that the bundle of evidence did not include a copy of an interview with the appellant in 2011 nor did it contain a number of documents submitted to the case owner including documents submitted for the hearing before the Court of Appeal. Ms Bell opposed the application. Initially I indicated that I was not prepared to adjourn the case. Clear directions had been set at the Case Management hearing on 27th August 2015 that, on receipt of the Home Office bundle, the appellant's representative should notify the Home Office in writing of any documents they consider to be missing from the Home Office bundle within 28 days. A further direction was made that the appellant's representative should serve an appeal bundle not less than 5 days before the hearing.
10. On reflection I considered the fact that the appellant had only been served with a copy of the file minute at the hearing. Although his representatives should not have assumed that the hearing would not be effective and although I considered that the appellant had had ample time to prepare his case, I considered that in order to be scrupulously fair to the appellant, I should allow an adjournment in order to allow him time to submit any further evidence on which he sought to rely. I adjourned the hearing until 3rd February 2016 before me.
11. On 3rd February 2016 Ms Bayati applied for a further adjournment of the case. She said that the appellant maintained that the immigration decision was not in accordance with the law. She said that the appellant lived with a relative who had extensive health needs. The appellant had attempted to obtain a report from an independent social worker (ISW) in order to assist the Tribunal. An ISW had been identified who could prepare a report by the 22nd February 2016. Ms Bell opposed the application.
12. I considered that no new evidence had been put before me to persuade me to alter my decision of the 12th January 2016 that I had jurisdiction to hear the appeal. There was ample evidence before me to show the health condition of the appellant's relative. The appellant and his witness were also in a position to give me oral evidence on the point. I considered that I could determine the appeal fairly without adjourning the case for the provision of an ISW's report. I therefore refused the application for an adjournment and proceeded to hear the appeal".
6. In response to the arguments advanced by Ms Bayati, the judge stated as follows in the concluding paragraphs of her decision:
"79. I have set out above at paragraphs 4 to 8 the reasons why I concluded at the earlier hearing that the immigration decision was a lawful decision. Ms Bayati maintained that the decision was not in accordance with the law. In her skeleton argument she referred to the job offer that had been received by the appellant. I attach little weight to that letter. No evidence was provided to me of any job applications made by the appellant. The letter is addressed to the appellant care of his address in Sri Lanka whilst he was living in the UK.
80. When the appellant completed his application for a working holidaymaker visa he said on his application that he intended to see the country, take employment and complete his CIMA finals. No evidence was provided before me to show that the appellant had taken the opportunity to undertake appropriate work experience as he had suggested in his application. When cross examined on this point the appellant said that he had not taken up his CIMA studies in the UK; he said it was not necessary as a working holidaymaker.
81. When he was asked why he had made reference to CIMA in his application, the appellant said that it was very costly to do it and the college said he needed a student visa to do it. The appellant provided no evidence to suggest that he had made any enquiries with colleges or prospective employers to enable him to progress his CIMA studies. On the evidence before me I find that the immigration decision was made in accordance with the law".
7. The judge dismissed the appeal on all grounds.

8. There was an application for permission to appeal. The grounds are acknowledged to be extremely lengthy by Ms Bayati who settled them. The first seventeen paragraphs of the grounds deal with the issues that were raised before me. The remaining grounds (paragraph 18 to 39) take issue with other aspects of the determination including the judge's factual analysis. Permission was granted on all grounds by the First-tier Tribunal on 4 April 2016. It was said that it was arguable that the judge had erred in law in finding that the Home Office form IS126E represented "sufficient evidence to show the appellant was an illegal entrant who used deception to gain entry to the UK and hence the respondent's removal decision was lawful".

9. The appeal was listed for a Case Management Review before Upper Tribunal Judge Storey on 25 May 2016 to consider the application for disclosure by the respondent of the file details held by her relating to an interview with the appellant on 3 April 2008 at Croydon. The judge refused the application and ruled that the appellant was barred from continuing to pursue the matter relating to disclosure of the file particulars of the 2008 interview at the next hearing.

10. The decision of Judge Storey had to a certain extent been overtaken by subsequent disclosure by the respondent prior to the hearing before me. An additional difficulty was that neither party had had sight of the decision of Judge Storey prior to the hearing. Counsel had obtained her copy from the appellant and I adjourned the proceedings briefly to give Mr Bramble the opportunity to read it.

11. Mr Bramble drew to my attention that in paragraph 5 of the decision (having dealt with the disclosure issue) the judge had continued as follows:
"As it happens, I consider that the judge's treatment of the matter of whether the respondent had made a lawful decision to treat the appellant as an illegal entrant in 2008 was unimpeachable. But it was not in fact a matter which was justiciable before him [sic]. The only matter that was before the judge, following the terms of the consent order made by the Court of Appeal and the subsequent remittal to the First-tier Tribunal, was whether to allow or dismiss the appellant's appeal against the respondent's decision to remove the appellant having refused his asylum claim".
12. Mr Bramble raised the issue as whether this was appropriately a matter to be dealt with at the Case Management Review. Mr Bramble further acknowledged that the burden was on the Secretary of State to make good the allegation of deception which rested on the key sentence "However it had been his true intention to claim asylum once in the United Kingdom, deceiving the Immigration Officer on the control".

13. Mr Bramble asked rhetorically if there was no typed or tape record of the interview, was what was said sufficient to satisfy the burden of proof resting on the Secretary of State. If the evidence was insufficient, then the judge had erred in finding that deception had been made out.

14. Counsel took me to the screening interview that had taken place on the same day with the same Immigration Officer. The appellant had said that he was currently working in Piccadilly Circus and was suffering from various medical conditions including vitiligo and headaches. He had used his own passport to enter the country and he had passed through immigration control. When asked what his reason was for coming to the UK he is recorded as having said:
"I came here on a working holiday visa and I was working.
Due to the problems in Sri Lanka, there is massive fraud among the Sinhalese.
I want to go back to Sri Lanka, but I cannot go now and I want temporary protection".
When asked briefly to explain why he could not return to Sri Lanka he replied "I may be disappeared or tortured or killed if I go back now". Counsel also referred to the appellant's answer to question 72 at his asylum interview when he was asked when exactly had he decided to claim asylum. The appellant's answer is lengthy but it is recorded that he had decided to claim asylum after/on "20 February 2008" having visited the Immigration Advisory Service in January 2008.

15. Ms Bayati referred to the Immigration Advisory Service letter of 14 April 2008 where the appellant's advisors had responded to the allegation of deception and had stated as follows:
"From interviewing our client, we think that Ms Nair misunderstood our client's instructions. [Our client] at the time he applied for a working holidaymaker visa, in February 2004, had not had any threats made against him at this time. The threats made against him and communicated to his parents were made subsequently to him leaving Sri Lanka, and at the time he made his entry clearance application he was not in fear of his former colleagues who he reported to his management. We hope that on the basis of this information, that this section upon the IS151A, we have referred to can be disregarded".
16. Counsel said there had never been any response to this letter. The threats made against the appellant had arisen after his departure from Sri Lanka. The initial application for the entry clearance had been in 2004 and it had been granted in 2006. What had been said by the Immigration Officer to support the allegation of illegal entry was not correct. It was simply founded on an inference drawn by the officer. There was no evidence to support the conclusions that he had been party to deception when applying for the entry clearance or on entry.

17. The Immigration Advisory Service had raised an issue about the matter of deception at the time. There had been no response to the letter. The First-tier Judge had been in error in stating that the form "clearly records that the appellant's intention when he entered the UK was to claim asylum". All that was recorded was an inference drawn by the officer.

18. Mr Bramble noted that Ms Nair had dealt with both the screening process and the notice that had been issued alleging deception. What was said later at the full interview was more difficult. One should look at the documents at the time of the decision. Was it sufficient to rely on what was said in the decision bearing in mind the screening interview in the absence of any evidence of notes or tape recordings? If the allegation had not been sufficiently made good to prove the case "it stops there". If what the judge had said in paragraph 8 (that the form "clearly records that the appellant's intention when he entered the UK was to claim asylum") was in fact simply an inference drawn by the officer, was the judge entitled on the balance of probabilities, bearing in mind that the burden lay on the Secretary of State, to find as she did?

19. At the conclusion of the submissions I reserved my decision. I have carefully considered the arguments on the point that has been raised in relation to the deception issue.

20. As a preliminary matter, I take into account that Judge Storey barred any point being taken in relation to disclosure of the file particulars of the 2008 interview. However, since that decision there has been disclosure and the matter is to that extent water under the bridge.

21. The matter before Judge Storey was a Case Management Review hearing and I do not consider that his observation in paragraph 5 was intended to bind the Tribunal at the full hearing. In relation to what was said by the Court of Appeal in the consent order, I see nothing in that order that would limit the issues before the Tribunal. The matter was listed for hearing afresh.

22. Quite apart from the issue of disclosure, the appellant had taken a point on the legality of the respondent's decision in the grounds of appeal. The only matter at issue at the CMR hearing was the disclosure issue and while disclosure was refused that aspect has since become academic.

23. In relation to the powers of a Tribunal, it clearly has power to determine its own jurisdiction. This was not a case which was considered on its merits by the Court of Appeal - it was simply allowed and remitted to be heard afresh. The argument about deception and whether the respondent's removal decision was lawful was one that was accepted as having been arguable when the First-tier Tribunal granted permission to appeal and accordingly it is a point properly at issue before the Upper Tribunal. It was not submitted in the respondent's response that there was not jurisdiction to deal with the matter.

24. In this case the burden rests on the Secretary of State to make good her allegation of deception. The appellant's admission that he came to the United Kingdom to work was not inconsistent with coming to the United Kingdom as a working holidaymaker. The judge's finding that it was clearly recorded that the appellant's intention when he entered the UK was to claim asylum is not made out on the limited material available. The form records that a caution was administered. There is no tape record or other note of the interview. The material is simply insufficient to support the judge's conclusion that the form clearly recorded the appellant's intention. What is set out on the face of it is no more than an inference drawn by Ms Nair.

25. This was not a point taken years later - the Immigration Advisory Service raised concerns in their letter of 14 April 2008, clearly taking issue with the allegation of deception. The advisors never had the courtesy of a response to their letter in which they invited the respondent to disregard the allegation of deception.

26. Mr Bramble acknowledges there is no tape or other record of the interview. It appears from paragraph 7 of the determination that the tape would have been destroyed some four years after the interview. This was notwithstanding the letter written by the Immigration Advisory Service to which the representatives never had a reply.

27. Counsel submitted that the judge had misdirected herself on the facts in concluding that the form clearly recorded the appellant's intention when he entered the UK was to claim asylum. On the material before me the respondent has failed to make good the allegation. It is not demonstrated that the appellant made the admission about his intentions as claimed. Had the Immigration Advisory Service's letter been responded to and had a tape or transcript been provided, the matter could have been clarified. Mr Bramble acknowledges that the screening interview and the respondent's decision was taken on the same day and conducted by the same officer and regard could properly be had to that. There it is recorded, as I have said above, that the appellant came on a working holiday visa and worked and there does not appear to be any suggestion of deception in what he said, it does not indicate that the appellant came to the United Kingdom with the intention of claiming asylum. He came on a working holiday visa "and I was working". He refers to the problems in Sri Lanka and the fraud there and wanting to return to Sri Lanka "but I cannot go now and I want temporary protection". It is important to note that the appellant uses two different tenses when describing his history. He makes no admission that he intended to claim asylum and posed as a working holidaymaker. In paragraph 10.2 when asked why he could not return to his home country he said "I may be disappeared or tortured or killed if I go back now".

28. I was also referred to the answer to question 72 at the appellant's full interview but Mr Bramble points out that this was at a later date and the screening interview and the decision was recorded by the same officer and accordingly merits more consideration than what was said at a later date. Having regard to what was said at the screening interview and all the material circumstances in order to make good the allegation it would have been necessary to point to an admission made at the interview. While the judge notes that the form had been completed at the time of the screening interview, the screening interview does not advance the respondent's case that the appellant had practised deception. The screening interview says clearly that the appellant entered the UK as a working holidaymaker to work.

29. Neither party invited me to place reliance on what the judge stated at paragraphs 79-81 of the determination. There she maintains the position that she had earlier taken. The grounds of appeal take issue with her observations about the CIMA course: the appellant had considered such a course in 2003 but he would have had to come on a student visa rather than a working holidaymaker visa. In any event, there was nothing in the evidence at the adjourned hearing or the judge's reasoning thereon that would have filled the evidential gap in the respondent's case and, as I say, neither party referred to it.

30. It follows that the central plank on which the respondent's case rests falls away. As Mr Bramble pithily put it, if the allegation was not made out "the case stops there".

Decision:

31. The decision of the First-tier Judge was materially flawed in law. I re-make it. The allegation of deception has not been established and it falls to the respondent to revisit the decision on a lawful basis. The appeal is allowed to the extent indicated.

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 him 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.

TO THE RESPONDENT - FEE AWARD

The First-tier Judge made no fee award and I make none.

Signed Date 12 October 2016

G Warr, Judge of the Upper Tribunal