Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04842/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision and Reasons Promulgated
On 31 August 2016
On 13 September 2016

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
JUNIOR ANTHONY BAILEY
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ouattara
For the Respondent: Mr G Harrison

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Nicol promulgated on 21 December 2015 which the Appellant's appeal against the decision of the Respondent to remove the Appellant from the UK following the decision to refuse the Appellant's claim for asylum
Background
4. The Appellant was born on 22 April 1987 and is a national of Jamaica.
5. The Appellant came to the UK in 2000 as a visitor aged 13. Applications for leave were made in February 2002 and July 2002 and they were refused. In November 2005 the Appellant was arrested as an overstayer and served with notice of liability to removal. He absconded until July 2012 when he was arrested for a burglary for which he was sentenced to a term of 10 months imprisonment.
6. He claimed that in 2004 his mother gave evidence in a criminal trial against members of a gang who were charged with supplying Class A Drugs. They were convicted and deported back to Jamaica. His mother was also sentenced to 4 years' imprisonment as a result of her role in the conspiracy to supply drugs. He claimed that he would be at risk on return to Jamaica from the members of the gang. He had been assaulted in the UK on two occasions as a result of his mother giving evidence against the gang.
7. The Appellant has a child, Jai, in 2010 by his then partner Fiona Brown. That relationship broke down. The Appellant then married a British citizen Nicola Bailey on 18 February 2014 and they have a child.
8. On 25 March 2013 the Appellant applied for asylum.
9. On 16 March 2015 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons:
(a) It was accepted that the Appellants mother had given evidence against a criminal gang.
(b) It was not accepted that the Appellant was assaulted or threatned in the UK as a result of his mother giving evidence in a criminal trial as his evidence was vague and the link to the gangs was speculation.
(c) The Appellants credibility was undermined by him delaying 6 years in claiming asylum.
(d) There was no evidence to support the Appellants claim that the gang members were located all over Jamaica or how they would identify the Appellant.
(e) The Appellants sister lives in Jamaica and has had no problems.
(f) Given the passage of time since the Appellants mother gave evidence there was no reason to believe they would still be interested in him. There is a functioning police force in Jamaica from whom the Appellant could seek assistance as his sister had done when unidentified men shot at her.
(g) The Appellant did not meet the requirements of leave to remain in the UK as a partner under Appendix FM as his relationship with Fiona Brown had apparently broken down and the evidence in relation to Nicola Bailey did not support the claim that it was a beguine and subsisting relationship.
(h) In relation to Family life as the parent of a child the evidence of his relationship with Jai did not suggest that he had access rights and was taking and continued to take an active role in his upbringing.
(i) The best interests of Jai were taken into account.
(j) In relation to private life there were no very significant obstacles to the Appellant integrating back into Jamaica.
(k) There was no reason for a grant of leave outside the Rules.
The Judge's Decision
10. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Nicol ("the Judge") dismissed the appeal against the Respondent's decision.
11. Grounds of appeal were lodged which argued:
(a) The Judge was not entitled to reject the asylum claim on the basis of the adverse credibility findings he made.
(b) The Judge did not give adequate reasons for rejecting the genuine nature of the Appellants relationship with his wife.
(c) The Judge was not entitled to make any adverse credibility finding on the basis of his wife's entitlement to tax credits or council tax reduction.
(d) The Judge applied the wrong test in relation to the relocation of the Appellants British citizen wife and children.
(e) The Judge was not entitled to reject the Appellant and his wife's evidence about their daughter and his four step children.
12. On 29 January 2016 First tier Tribunal Judge Osbourne gave permission to appeal
13. At the hearing I heard submissions from Mr Ouattara on behalf of the Appellant that he relied on the grounds of appeal and grant of permission.
14. On behalf of the Respondent Mr Harrison submitted that :
(a) He relied on the Rule 24 notice of 5 February 2016 that this was a mere disagreement with the negative outcome of the appeal.
(b) It was a detailed decsion.
(c) The Judge considered the best interests of the children and the findings he made were sustainable
The Law
15. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
16. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration judge concludes that the story told is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration. In Mibanga v SSHD [2005] EWCA Civ 367 Buxton LJ said this in relation to challenging such findings:
"Where, as in this case, complaint is made of the reasoning of an adjudicator in respect of a question of fact (that is to say credibility), particular care is necessary to ensure that the criticism is as to the fundamental approach of the adjudicator, and does not merely reflect a feeling on the part of the appellate tribunal that it might itself have taken a different view of the matter from that that appealed to the adjudicator."
Finding on Material Error
17. Having heard those submissions I reached the conclusion that the Tribunal made no material errors of law.
18. In a carefully written decision the Judge made a number of detailed and well balanced adverse credibility findings against the Appellant that were open to him on the evidence before him. He noted that the Appellants mother had given evidence and served her sentence and did not appear to have suffered any repercussions of giving that evidence and had in fact refused to participate in the witness protection scheme (para 47). He noted that there was no evidence from the Appellants mother in support of his claim. The Judge note that the Appellants evidence of the threats was vague and inconsistent (para 48) and he noted that no incident was ever reported to the police.
19. The Judge found the Appellants credibility was also undermined by his failure to claim asylum until 2013 (paras 53 and 55).
20. The Judge carefully analysed the evidence that the Appellant gave in his asylum interview and the application together with the oral evidence about his relationships with Ms Brown and his wife and identified inconsistencies at paragraph 52 which undermined his credibility.
21. In the light of these findings it was a matter for the Judge as to the weight he attached to each of them and therefore open to him to reject the Appellants claims that he was at risk on return to Jamaica.
22. In relation to the Appellants Article 8 claim whether under the Rules or outside the Rules the Judge made a detailed analysis at paragraphs 60-65. The Judge had already indicated in general terms that he did not find that the Appellant was a reliable and credible witness and he was entitled to take that into account in determining whether he found his evidence to be reliable as to whether he had a family life with either Ms Brown or Nicola Bailey. He found that inconsistencies in their evidence undermined the claim of family life and set out those inconsistencies (para 60)
23. The Judge made clear that he was taking into account the best interests of the children at paragraph 61. He found that the Appellants evidence as to his relationship with Fiona Brown and the contact he had with their child was unreliable. Indeed he found that the Appellants evidence was that he needed a court order to see this child and had not attempted to obtain one and that the child lived with his mother.
24. He had concerns about the reliability of the Appellants claims about his relationship with his wife given his general credibility findings but noted that it would be open to them if the relationship was genuine to return to Jamaica and make an application to return as the spouse of Mrs Bailey which was I am satisfied a finding that was open to him. He also noted that Mrs Bailey and her children could , if they chose, return to Jamaica with the Appellant and while he stated they would not face any threat I am satisfied that he was simply stating that this was a choice that was open to them and there was nothing in the circumstances as he had found them to be that made that an unreasonable option. He concluded that the best interests of the children would not be harmed by the Appellant returning to Jamaica and I am satisfied on the evidence this was a finding open to him.
25. The Judge also took into account those factors he was obliged to consider under paragraph 117B(6) given that
26. I remind myself of what was said in Shizad (sufficiency of reasons: set aside) Afghanistan [2013] UKUT 85 (IAC) about the requirement for sufficient reasons to be given in a decision in headnote (1) : "Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge."
27. I was therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
28. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
29. The appeal is dismissed.

Signed Date 11.9.2016
Deputy Upper Tribunal Judge Birrell