Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00328/2010

THE IMMIGRATION ACTS

Heard at Bradford
Determination Promulgated
On 2 April 2013
On 24 June 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

AGUINAlDO DE ALeMEIDA De JESUS
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss S Khan, instructed by Ison Harrison Solicitors
For the Respondent: Ms J Donnelly, a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant, Aguinaldo De Alemeida Do Jesus, was born on 24 October 1970 and is a male citizen of Angola. The appellant had appealed against a decision of the respondent dated 29 March 2010 to deport him from the United Kingdom under section 32(5) of the UK Borders Act and Section 3(5) of the Immigration Act 1971. His appeal against the respondent’s decision was heard by a panel of the First-tier Tribunal which, in a determination promulgated on 23 September 2010, dismissed the appeal on all grounds. The appellant appealed to the Upper Tribunal which granted permission on 17 December 2010. By a decision dated 14 March 2011, Upper Tribunal Judge Hanson found that the First-tier Tribunal had erred in law such that its determination fell to be set aside. He set aside the determination and did not preserve any of the findings of fact. Judge Hanson did not remake the decision and on 5 March 2013, Principal Resident Judge Southern made a transfer order. The resumed hearing eventually took place at Bradford on 2 April 2013. It is regrettable that the appeal has taken so long to reach a resumed hearing.
2. The burden of proof in the appeal is on the appellant and the standard of proof is whether there is a real risk that he would suffer, respectively, persecution or treatment contrary to the ECHR (in particular, Articles 2 and 3) if he were to be returned to Angola. The appellant also appeals on Article 8 ECHR grounds. The standard of proof in the Article 8 appeal is the balance of probabilities.
3. I considered each item of evidence and weighed it accordingly before considering the evidence as a totality. Before making any findings of fact in reaching any conclusion as to the credibility of the appellant’s account, I considered all the evidence including the expert reports of Dr Salisbury and Dr George. I sought to distinguish the “core” parts of the appellant’s account from peripheral parts of the evidence and to examine risk of return to Angola in the context of the background material relating to that country.
4. The appellant claims to fear persecution in Angola as a result of his political opinion. He claims to have been a member of the Angolan government’s Rapid Intervention Police (RIP) which was responsible for internal state security. His responsibilities included protecting government officials and members of the opposition UNITA party. In December 2003, members of the appellant’s RIP unit received an arrest warrant. The commander of the appellant’s group within the RIP (Commander Da Cunha) was arrested and it was announced on radio and television that he had been planning to overthrow the government with the assistance of police force officers. The appellant arranged to live with his girlfriend’s family in a northern province of Angola but, before he could escape, a group of masked men entered his apartment and arrested him. The appellant thereafter remained in prison until 1 March 2009 although he was never charged or tried for any offence. He was eventually released from prison after the payment of a bribe by his brother. In prison, the appellant claimed that he was tortured and subjected to degrading treatment, including sexual abuse. The appellant left Angola using a false passport and flew to the United Kingdom via Lisbon. Following his arrival in the United Kingdom, he was charged with using a false document, an offence to which he pleaded guilty and was sentenced at Lewes Crown Court on 19 March 2009 to twelve months’ imprisonment. On 13 April 2009, the appellant expressed an interest in the Facilitated Returns Scheme. He was accepted on that scheme but subsequently withdrawn from it when he claimed asylum on 15 September 2009, more than six months after he had entered the United Kingdom (3 March 2009).
5. The appellant adopted five written statements as his evidence-in-chief. He also adopted a number of photographs which appear in his bundle. These photographs show the appellant with the woman who is now his wife together with his stepson (his wife’s natural son) Emanuel. The respondent does not dispute that the appellant is in a marriage and subsisting relationship with his wife and stepchild. Both the appellant’s wife (Conceicao Joachim Jorge – hereafter referred to as Ms Jorge) and Emanuel (who is aged 10 years) are both British citizens. Ms Jorge was born in Angola.
6. Cross-examined by Ms Donnelly, the appellant was asked about the physical condition he was in by the time he reached the United Kingdom. He said he was “very very bad”. He had suffered from malnutrition as well as having been physically abused in detention. He said that he had not seen a doctor when he had arrived in the United Kingdom and he had received no medical treatment whilst in detention.
7. The appellant said that his wife did not know much about his life in Angola. He said, “we are more into our religion. We do not want to focus on what has happened in the past”. His wife had had problems with her child’s father so she had run away.
8. The appellant was asked about his involvement with the Rapid Intervention Police Force. He said that he had taken part in a “crash course” so that he could be admitted as an officer within three months. He had never fired a weapon with which he had been equipped.
9. The appellant agreed that he had attended the Angolan Embassy in London with a view to voluntary return. He thought that the visit had been to discover whether or not he was an Angolan citizen. He had not objected to the interview.
10. The appellant was asked about his departure from the prison. He said that this had taken place in secret. His family members had arranged it and had paid the guards at the entrance of the prison. He said, “whoever is there on duty simply paid them and walked out normally”.
11. He was asked by Miss Donnelly what he had planned to do when he entered the United Kingdom. He said that he had been assisted by an agent. He thought, following his arrival that he would “find work or apply for asylum”. The appellant had discussed asylum with an Angolan man he had met in prison in or about June or July 2009. He was asked why he had therefore delayed until September 2009 before claiming asylum. The appellant said, “I know I could have applied in prison but I was told I had to finish six months first”.
12. The appellant married Ms Jorge on 10 September 2011 in a civil ceremony. Their daughter, Victoria, was born on 10 October 2012. He said that his stepson, Emanuel, continues to require support at school and that he is “not at the level of his average classmates”. His behaviour problems are “improving”.
13. I heard evidence from Ms Jorge, the appellant’s wife. She adopted her written statement as her evidence-in-chief. She is a naturalised British citizen although she has not yet received a passport. She said that Emanuel’s biological father lives in Angola and she has no contact with him. She said that the appellant had assisted her greatly in helping to bring up Emanuel but his behaviour problems had diminished as a consequence.
14. The Tribunal reserved its determination. I find that the appellant is not a witness of truth. I do not accept as reliable his account of past events in Angola. I have reached that finding after examining the appellant’s evidence in detail and in the context of the background material relating to Angola and also the expert report of Dr Edward George. I am aware of the expertise of Dr Jorge as regards Angola and as set out in his report. I am aware that Dr George is of the opinion for finding that the arrest warrant and summons produced by the appellant are genuine documents. I have considered Dr George’s evidence in the context of all the evidence before the Tribunal (see Mibanga (2005) EWCA Civ 367) but also applied the principles of Ahmed [2002] UKIAT 00439 when considering the authenticity of the documents produced and the reliability of their content. However, for the reasons that I have set out below, my examination of the totality of the evidence leads me to believe that the appellant’s account is not accurate and consequently that documents which he has produced are not genuine.
15. I find that there is a significant disconnect between the treatment which the appellant claims that he suffered whilst in prison in Angola and his physical condition upon entering the United Kingdom. The appellant was arrested in March 2009 when he attempted to enter the United Kingdom using a false passport. He was sentenced to twelve months’ imprisonment very soon thereafter (19 March 2009); within a month of his sentence, he had already expressed an interest in returning to Angola voluntarily. He said in oral evidence that his intentions upon coming to the United Kingdom were “to find work or claim asylum”. I find those stated intentions to be unusual to say the least, given that the appellant claims to have barely have escaped with his life from appalling prison conditions in Angola where he was severely ill-treated. I do not accept that the appellant would have entered a foreign country and immediately considered looking for illegal for work or, soon after his arrival, express an interest in returning to Angola if he had genuinely suffered the ill-treatment which he claims.
16. I also find that it is not reasonably likely that the appellant’s family would have allowed him to languish for so long in appalling conditions in detention when the procedure for paying bribes to enable him to leave prison appears to have been so simple and straightforward. As the appellant said in his oral evidence, all that was required was for his family members to pay the guard who happened to be on duty and the appellant could then leave at will. The appellant has given no satisfactory explanation as to why he was left to suffer in prison by his family or why, having had reason to hold him without charge for so long, the Angolan authorities should have been so willing to release him. I find that the account of the appellant’s arrest, detention and release from detention, coupled with his conduct after he entered the United Kingdom, is such as to diminish very severely the reliability of his evidence.
17. I also accept Miss Donnelly’s submission that the appellant’s description of his recruitment into the Rapid Response Force is not credible. The background material indicates that the response force was an elite division of the police and I do not consider it reasonably likely that the appellant would have been recruited and rushed through training for the force in the manner he described. It is perhaps significant that an identity card which the appellant had sought from Angola has never arrived or been produced.
18. I also find that it is extraordinary that the appellant should have expressed a wish to return voluntarily to Angola and to change his mind when he became aware that he could claim asylum. That evidence does not sit easily with his claim to have wished to claim asylum when he entered the United Kingdom and he has not explained satisfactorily why he relied upon the unreliable advice of another Angolan man to the effect that he had to be in the United Kingdom for six months before he could claim asylum.
19. The appellant has produced evidence from Dr Salisbury regarding the scars which he has and also in respect of his claimed diagnosis of post-traumatic stress disorder (PTSD). I am well aware that medical and other experts can assist the Tribunal in assessing credibility but I do find that the weight of Dr Salisbury’s evidence (and that of Dr George) has being diminished by the fact that they have been told an untruthful account by the appellant. Dr Salisbury considered some of the appellant’s scars to be “highly consistent” with his account of ill-treatment but the doctor has failed to consider other possible causes of the injuries in any detail. Assessing the evidence as a whole, I find that the appellant’s scars were not caused in the manner in which he claims.
20. I find that the appellant’s account is further diminished by the evidence adduced by the respondent regarding his weight and physical condition. When the appellant was at HMP Canterbury he was weighed and examined on 6 April 2009. Dr Salisbury in his report [1.14] records that “[the appellant] experienced a lot of back pain during this work and also became profoundly depressed. He had lost his memory. His weight dropped to 45 kilograms and he lost the will to live”. HMP Canterbury recorded that the appellant weighed 76.20 kilograms a little over a month after he arrived in the United Kingdom. I do not consider it reasonably likely that the appellant can have put on more than 30 kilograms in weight between the time he left prison in Angola and April 2009. The evidence from HMP Canterbury indicates, in my opinion, that the appellant was in much better physical condition than he claims to have been. It is evidence which further undermines his credibility as a witness.
21. I find that the appellant is an Angolan citizen who has fabricated his account of having been a member of the Rapid Response Force in Angola. I find that he has not been imprisoned or ill-treated in Angola as claimed. I find that he has come to the United Kingdom for reasons wholly unconnected with the fear of persecution or ill-treatment in Angola.
22. I have to consider whether this appellant, bearing the characteristics which I find that he possesses, can be safely returned to Angola at the present time. In order to address that question I have had regard to the background evidence relating to the country. This appellant will present to the authorities and, indeed, any other group or individual within Angola as nothing more or less than a failed asylum seeker. He has no political or criminal profile. I can find no evidence to show that he would be at risk either at the point of his arrival in Angola or subsequently living in his home area of that country. Consequently, his Articles 2/3 ECHR and Refugee Convention appeals are dismissed. Having regard to the same factual matrix, I find that the appellant is not entitled to a grant of humanitarian protection.
23. I have also considered Article 8 ECHR. The appellant’s circumstances have changed since the date of his last appeal to the First-tier Tribunal. I accept (as did Mr Diwnycz on behalf of the respondent) that the appellant is in a genuine subsisting relationship with Ms Jorge, that he is the father of Victoria (who is now aged 8 months) and the stepfather of Ms Jorge’s son, Emanuel. Ms Jorge and Victoria are British citizens. The outcome of the appeal on Article 8 grounds depends upon the Tribunal’s assessment of the proportionality of the immigration decision to remove the appellant. Mr Diwnycz did not argue that it would be reasonable for Ms Jorge or the children to accompany the appellant to Angola (see ZH (Tanzania) 2011 UKSC 4). Indeed, having regard to Section 55 of the Borders, Citizenship and Immigration Act 2009 and considering the best interests of the children as a primary consideration, I find that the appellant is an active father and stepfather and that his presence in the lives of the children is of considerable benefit to them. It is not in the best interests of any of the children (including Emanuel) to be separated from the appellant. His removal to Angola would, in my opinion, constitute a very serious interference with the enjoyment of family life of the appellant, his wife and the children.
24. It is also important, however, that I seek to identify the public interest concerned with the appellant’s removal. The respondent seeks to remove the appellant for the legitimate aim of preserving public order and preventing crime and maintaining a system of immigration control. I do not seek to diminish the seriousness of the appellant’s offence but it was not an offence of violence or of a sexual nature nor did it involve the sale or use of drugs. The appellant has not committed any further offence since he was released from prison. I find that the appellant is likely to have used a false passport to facilitate his entry to the United Kingdom because he had come to seek work here and was aware that he did not have a legitimate reason (including that of seeking asylum) to enter. I am aware that he may now and only by virtue of his relationship with Ms Jorge and the children gain the right to remain here. However, if he is granted leave to remain and work in this country, then equally any incentive to commit a similar would be removed entirely. Consequently, I find that his risk of re-offending is low. I find it is likely that, if he is granted permission to remain in the United Kingdom, the appellant will seek legitimate work with a view to supporting his family. On balance, therefore, I find that the interference which would be caused by the appellant’s removal to Angola to the private and family lives of the appellant himself and his other family members would be disproportionate. Consequently, I allow the appeal on Article 8 ECHR grounds.
DECISION
25. This appeal is dismissed on asylum grounds.
26. This appeal is dismissed on Article 2/3 ECHR grounds.
27. This appellant is not entitled to a grant of humanitarian protection.
28. This appellant’s appeal is allowed on Article 8 ECHR grounds.

Signed Date 2 June 2013

Upper Tribunal Judge Clive Lane