Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01024/2010

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 2 May 2013
On 3 June 2013

Before

MR JUSTICE MCCLOSKEY
UPPER TRIBUNAL JUDGE KOPIECZEK

Between

adam nyami

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Kotak (of counsel) instructed by Kesar and Company Solicitors

For the Respondent: Mr Avery (Home Office Presenting Officer)

DETERMINATION AND REASONS

INTRODUCTION

1. Under challenge in these proceedings is the Respondent’s Notice of Decision dated 25th November 2010 that section 32(5) of the UK Borders Act 2007 applies to the Appellant. Thereby the Respondent has determined to deport the Appellant to Nigeria on the ground that he was convicted on 27th February 2009 of possession and/or use of a false instrument, namely a fabricated passport. By its earlier decision promulgated on 9th November 2012, this Tribunal determined that the decision of the First-tier Tribunal should be set aside and would be remade in this forum. [The Decision and Directions of this Tribunal dated 9th November 2012 are annexed hereto.] When relisted for this purpose on 16th January 2013, the hearing was adjourned to enable some further evidence to be obtained on behalf of the Appellant.

2. In its earlier decision, this Tribunal found that the Respondent’s Notice of Decision and the Determination of the First-tier Tribunal were vitiated by a misunderstanding of the case made by the Appellant, particularly relating to the early phase of his life and upbringing. As a result, the assessment of the Appellant’s case as incredulous was unsustainable. This Tribunal also held that the First-tier Tribunal had failed to take into account certain “country” evidence. At that stage, the main focus was on the Appellant’s asylum claim. The conclusion was that the decision of the First-tier Tribunal was vitiated by error of law and should be set aside in consequence. It was further decided that the decision would be remade in this forum.

3. At earlier stages, the Appellant’s case was advanced on various grounds. Ultimately, however, it was based exclusively on his rights under Article 8 ECHR. This entails a sharp refocussing of the issues to be determined.

THE EVIDENCE: A SUMMARY

4. The Appellant did not testify at the hearing before us. The Tribunal did, however, hear evidence from the Reverend Evans, who ministers to an evangelical congregational church in the locality where the Appellant resides. The Reverend was an impressive and persuasive witness. He recounted that the Appellant has been a member of his church congregation for some 3 ½ years. He normally attends church services twice on a Sunday and on one weekday night at fortnightly intervals. He visits the Reverend around twice a week in the church office. He is supported by the congregation, which has “become his family to care for him”. He is provided with basic necessities (food and money) when required. He has social interaction with church members. His mood is low and depressed at times. He is neglectful of his personal care. He continues to study the Bible. The Reverend Evans testified that the Appellant would have great difficulty in surviving without the support and comradeship of the church circle .

5. The evidence includes several expert reports. These establish that the Appellant suffers from a severe to profound hearing loss. There is a related speech impediment and an associated difficulty in engaging in conversational speech. He also suffers from a cognitive impairment with moderate learning disabilities. His literacy skills are very limited. Mr Sellwood, Chartered Educational Psychologist, has expressed the following opinion:

“Without such experience of independent living, Mr Niyami is at risk of exploitation …..

[He] should be seen as a person with two significant disabilities, hearing loss and cognitive deficit. These interact with each other to significantly inhibit learning and independent living.”

A psychologist, Dr McNulty, has found the Appellant’s expressive and receptive language skills to be “very poor”. The symptoms described by him were consistent with “unusual levels of psychological distress”. He suffers from a range of abnormal psychological difficulties. His English is described as very crude and his vocabulary limited. The account given by the Appellant to Natalia Dawkins, author of a trafficking report, confirms the strength of his attachment to and dependence on the Reverend Evans’ church and its congregation. Based on the history provided by the Appellant, Ms Dawkins has formulated the following opinion:

“It is my view that returning Mr Niyami to either Sudan and/or Nigeria will exacerbate his vulnerability [with an] increasing risk of destitution and possible further exploitation. Mr Niyami explained that he does not have any family or social connections in Nigeria or Sudan, that he does not know how to do anything apart from domestic servant work. He fears that because he is from Sudan and hearing impaired, a return to Nigeria would mean he would be once again treated as a slave.”

Ms Dawkins opined that from childhood through adolescence and until his arrival in the United Kingdom the Appellant had been trafficked for the purpose of domestic slavery and had been exploited accordingly.

6. In his witness statement, the Appellant (inter alia) details his connections with and reliance on the local church. He describes his church and faith activities and his interaction with church members. He states:

“I would miss the church and the people very much ……

The church is my family, who help me a lot.”

His evidence on this issue chimes with that of the Reverend Evans and squares with what is documented elsewhere.

FINDING AND CONCLUSIONS

7. The final framework of this appeal has been reduced to one of comparatively narrow dimensions, having regard to the Appellant’s reliance on Article 8 ECHR and nothing else.

8. We have considered all of the evidence carefully and critically. It is common case that the Appellant has been residing in the United Kingdom since 2nd November 2008. We find that he previously spent most of his life in The Sudan, where he has no family and had no established family life in any real sense. His period of residence in Nigeria, the country to which the Respondent proposes to deport him, was of some eight years duration at most. The Appellant’s case has been documented in several places since his arrival in the United Kingdom. The accounts thus recorded undoubtedly exhibit certain imperfections and wrinkles. Taken together, they exhibit some lack of harmony and consistency. However, in our evaluation of all the evidence, we consider it important to have particular regard to the Appellant’s profound hearing loss, his psychological difficulties and his significant cognitive impairment. We believe that these have been the cause of communication difficulties which, in turn, have generated certain discrepancies more apparent than real. Furthermore, we observe that the Appellant’s account of his life in the United Kingdom is corroborated by the evidence of the Reverend Evans, which we accept. On balance, we believe the essential core of the Appellant’s story. We are satisfied that it is not contaminated by anything contrived, invented or exaggerated.

9. Having regard to the decisions of the House of Lords in Razgar – v – Secretary of State for the Home Department [2004] UKHL 25 and Huang – v – Secretary of State for the Home Department [2007] UKHL 11, we propose to adopt the following approach:

(a) Would the deportation of the Appellant from the United Kingdom to Nigeria interfere with the exercise of his right to respect for his private or family life?

(b) If “yes”, does such interference have consequences of such gravity as to engage the operation of Article 8?

(c) If “yes”, would such interference be in accordance with the law?

(d) If “yes”, would this interference be necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the protection of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others?

(e) If “yes”, would such interference be proportionate to the legitimate public end sought to be achieved?

10. The parties’ respective representatives were united in their approach. There was no dispute that the deportation of the Appellant to Nigeria would interfere with his established private life in the United Kingdom. The legitimate aims invoked by the Respondent in its Notice of Decision were “the prevention of disorder and crime and the maintenance of an effective immigration control”. There was no challenge to the legitimacy of these aims in principle.

11. The parties were agreed that, in this particular case, the central question is that of proportionality. Thus a balancing exercise is required of the Tribunal. On the one hand, there is the general right of states to control the entry and residence of non-nationals through a regime of restrictive immigration rules and requirements. On the other hand, where the actual or proposed conduct of the state entails interference with a person’s right to respect for private or family life, this is permissible only where proportionate to the legitimate aim in play. This exercise will frequently require consideration of issues such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of his family or private circle and the prevailing cultural traditions and conditions in the country of origin: per Lord Bingham in R (Ullah) – v – Special Adjudicator [2004] 2 AC 323, paragraph [20]. We remind ourselves further that Article 8 cases are intensely fact sensitive, frequently requiring “difficult evaluative exercises”: per Lord Bingham in EB (Kosovo) – v – Secretary of State of the Home Department [2008] UKHL 41, paragraph [12].

12. It is proposed to deport the Appellant to Nigeria. We find that his links with that country are tenuous. He is a Sudanese national who has spent most of his life in The Sudan. He has no family, friends, social circle, community or roots of any kind in Nigeria. We consider it telling that the evidence indicates that the Appellant had only one acquaintanceship of note in Nigeria. We find that this amounted to nothing more than a limited association which has not given rise to any continuing communications since the Appellant’s arrival in the United Kingdom. There is no indication of any enduring relationship. Furthermore, the lack of any strong emotional or other attachment is illustrated by the Appellant’s willingness to travel to this country with a view to remaining here permanently. Taking into account also the passage of time, we further find that this acquaintanceship is unlikely to be revived in the event of the Appellant’s deportation to Nigeria. Furthermore, we find that if returned there he will be exposed to a significant risk of the exploitation, ill treatment and slavery which characterised the first 35 years of his life, until arrival in the United Kingdom. He would arrive in Nigeria friendless, jobless and as a foreign national suffering from significant physical, psychological and cognitive disabilities.

13. We find that the Appellant is heavily dependent on his church congregation. This is a source of substantial material, psychological and social support to him. Most of his private life is immersed in this circle. Furthermore, the congregation has become his ‘family’. He is a needy and dependent member of a helpful and supportive group of human beings. We find that this dependence has increased with the passage of time. His interaction with the church congregation has become a central and indispensable part of the Appellant’s life. The Appellant’s private life in the United Kingdom is well established and continues to develop. This would be extinguished permanently, with no realistic possibility of a comparable substitute, in the event of his deportation to Nigeria. Furthermore, the evidence suggests clearly that the Appellant will continue to develop as a person if he remains in the United Kingdom, whereas regression is likely in the event of deportation. The contrast between the two scenarios under contemplation is acute and unmistakable. In summary, we consider that to deport the Appellant to Nigeria would interfere profoundly with his well established private life in the United Kingdom.

14. We address the other factors in the balance, having regard to the legitimate aims invoked by the Respondent. We acknowledge that the Appellant’s offence of attempting to enter the United Kingdom using a false passport was one of some gravity and engages the legitimate policy aim of maintaining firm and effective immigration control by, inter alia, punishing offenders and deterring the individual offender and others from further offending. However, we note the absence of any suggestion that the Appellant is likely to engage in any form of criminality in the United Kingdom and, having regard to all the evidence, we are satisfied that there is no realistic prospect of this eventuating. Furthermore, while the Notice of Decision mentions the prevention of disorder, this has the appearance of a boilerplated formulation. It has no evidential foundation and was not developed in submissions on behalf of the Respondent. As regards the aim of the prevention of crime, we consider that in this particular case sufficient deterrence is provided by the prosecution, conviction and imprisonment of the Appellant.

15. Having regard to the facts found and the assessment set out above, we consider that in the measurement of proportionality, the balance tips in favour of the Appellant. Thus we conclude that to deport the Appellant to Nigeria would be disproportionate and would, therefore, infringe his rights under Article 8 ECHR.

THE TRAFFICKING ISSUE

16. In her presentation of the Appellant’s case, Ms Kotak (of counsel) urged the Tribunal to find that the Appellant had been a victim of people trafficking in contravention of the European Convention on Action Against Trafficking in Human Beings (“The Trafficking Convention”). This is a Council of Europe measure, signed by the United Kingdom Government in 2007 and ratified in 2008. It entered into force on 1st February 2008, having received the necessary ten ratifications. It has been ratified by the vast majority of the Council of Europe Member States. Article 10 provides:

“Each party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure …..”

Where the relevant authority has identified a victim of trafficking, the person concerned may qualify for a residence permit under Article 14. The Convention is a comprehensive measure, focusing particularly on the protection of victims of trafficking and the safeguarding of their rights. It is also designed to prevent and deter trafficking and to prosecute the perpetrators thereof. It embraces all kinds of exploitation, sexual exploitation, forced labour and kindred abuses, whether national or transnational and irrespective of whether related to organised crime. It also establishes an independent monitoring mechanism for the purpose of securing compliance with its provisions by the Parties.

17. In the United Kingdom, the Respondent is the competent authority for the purposes of the Convention. By its decision of 27th August 2010, the Respondent determined that there were no reasonable grounds for believing that the Appellant is a victim of trafficking. The decision was made by the Criminal Case Work Directorate (Liverpool) of the UK Border Agency. This decision was entirely independent of the impugned deportation decision. It was based on an assessment of (inter alia) the circumstances of the Appellant’s journey to and entry into the United Kingdom, including the factors of age and sponsor. It is clear that an important ingredient of this decision was the rejection of the Appellant’s assertions of slavery on the ground that they were not considered credible.

18. Our evaluation of this argument is as follows. In the first place, there is no right of appeal to this Tribunal against the Respondent’s trafficking decision: see Part V of the Nationality, Immigration and Asylum Act 2002. Secondly, the Trafficking Convention cannot be invoked as a freestanding source of rights, obligations and legal effects and consequences in domestic law, as it is an unincorporated international treaty. Thus the long established principle that treaties are not self-executing in municipal law applies. This principle was expressed unambiguously by Lord Phillips in Ahmed – v – HM Treasury [2010] 2 AC 534, at paragraph [109], in the following terms:

“Treaties entered into by the United Kingdom do not take direct effect. Treaties are entered into by the Government under the Royal Prerogative, but unless and until Parliament incorporates them into domestic law, they confer no powers upon the executive nor rights or duties upon the individual citizen”

This is frequently described as the principle in the International Tin Council case
( [1990] 2 AC 418). A corollary of this principle is that a failure by a public authority to take into account the provisions of an unincorporated international treaty is not of itself a ground for impugning the exercise of a discretionary power: R v the Ministry of Defence, ex parte Smith [1996] QB 517, page 558 (Per Sir Thomas Bingham MR). It is, of course, established that unincorporated international instruments have a role in certain contexts, a paradigm example being the presumption that Parliament does not intend to legislate contrary to the United Kingdom’s international obligations: see most recently Assange – v – Swedish Prosecution Authority [2012] UKSC 22, paragraph [122] (Per Lord Dyson). Furthermore, a decision may be impugned where a public authority purports to apply an unincorporated international treaty provision but errs in doing so: R – v – Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839, page 867 (per Lord Hope). However, none of these principles avails the Appellant in the instant case. Moreover, in the present context, the measure of international law in question was more than simply taken into account: it was the subject of a specific application by the Appellant and ensuing decision by the designated organ of the State. In passing, we observe that the Trafficking Convention is one of over 200 treaties adopted by the Council of Europe since its inception in 1949, the vast majority whereof belong exclusively to the domain of international law (the ECHR and some of its Protocols being the most notable exceptions in the United Kingdom).

19. Finally, we consider that it would have been open to the Appellant to challenge the Respondent’s trafficking decision by an application for judicial review. The Tribunal was informed that such challenges have occurred. However, he did not pursue this remedy. We are of the opinion that backdoor challenges to trafficking decisions made by the Respondent under the Trafficking Convention are not permissible in appeals of the present kind. They lie outwith the competence of the First-tier and Upper Tribunals. Whether the trafficking decision will, or can, be reopened in the light of this Determination is not a matter for this Tribunal.

20. For this combination of reasons, we consider the Appellant’s argument on this discrete issue misconceived.

DISPOSAL

21. We remake the decision of the First-tier Tribunal by allowing the appeal under Article 8 ECHR for the reasons explained in paragraphs [8] to [15] above.

Signed:

Bernard McCloskey Date: 15 May 2013

Mr Justice McCloskey,

High Court of Justice of Northern Ireland

ANNEX

Representation:
For the Appellant: Ms Marisa Cohen (of counsel) instructed by Winson Solicitors LLP
For the Respondent: Mr. L. Tarlow, (Home Office Presenting Officer).

DECISION AND DIRECTIONS

Framework of this Appeal

1. This appeal has its origins in the Notice of Decision of the UK Border Agency made on behalf of the Secretary of State for the Home Department (“the Respondent”). This decision took the form of an order deporting the Appellant from the United Kingdom pursuant to Section 5(1) of the Immigration Act 1971 and Section 32(5) of the UK Borders Act 2007. Thereafter, the sequence of events was as follows:

(i) The Appellant appealed to the First-Tier Tribunal, unsuccessfully.

(ii) He then appealed to the Upper Tribunal on the ground that the first instance Tribunal had erred in law in refusing his application for an adjournment in circumstances where he was unrepresented and had intimated an intention to attend an imminent medical appointment for the purpose of having a hearing aid fitted. The Respondent’s representative conceded that the Appeal was meritorious and, by its decision promulgated on 12th September 2011, the Upper Tribunal allowed the appeal and remitted it to the First-Tier Tribunal for a fresh hearing.

(iii) A further hearing before a freshly constituted First-Tier Tribunal ensued, on 23rd February 2012. By its Determination promulgated on 1st June 2012, the First-Tier Tribunal dismissed the appeal on asylum grounds; concluded that the Appellant did not qualify for humanitarian protection; and dismissed the appeal under Article 8 ECHR. The Respondent’s deportation order was, accordingly, affirmed.

(iv) On 22nd June 2012, permission to appeal to this Tribunal was granted, in the following terms:

“In an otherwise detailed determination … the panel omits any mention of the Appellant’s written submissions on nationality and findings of fact dated 27th February 2012 … It is at least arguable that the panel did not take [these] into account …

Not to have considered those important submissions is arguably an error of law … All the issues raised in the grounds are arguable.

2. The grounds to which the aforementioned grant of permission to appeal to this Tribunal refers are the following:

(i) The First-Tier Tribunal misdirected itself in law in making certain findings in relation to removal to The Sudan.

(ii) The Tribunal made irrational findings in respect of the Appellant’s credibility.

(iii) The Tribunal made irrational findings in respect of the Appellant’s nationality and removal.

(iv) The Tribunal failed to take into account evidence relating to the risks attendant upon the Appellant’s return to Nigeria.

(v) The Tribunal committed a material misdirection in law in relation to jurisdiction.

This latter ground was expressly abandoned at the outset of the hearing of this appeal.

Formulation of the Appellant’s Case

3. One commences with a generalisation. In a large number of cases of this genre, the way in which the person claiming asylum under the Refugee Convention and/or humanitarian protection under paragraph 339C of the Immigration Rules and/or protection under the regime of the Human Rights Act 1998 (frequently invoked provisions being Articles 2, 3, 4, 5 and 8 ECHR) assumes substantial importance in the ensuing decision making process and decisions of the Respondent. This continues through the appeals process which ensues in so many cases. In short, what the individual claimant said, or what was said on his behalf, from the moment of his or her arrival in the United Kingdom until the writing of the final chapter is very often a matter of unmistakable importance.

4. This truism applies with full force to the present case. In the Notice of Decision, the Respondent purported to rehearse the various claims and assertions made by and on behalf of the Appellant from time to time, to construe and analyse them, to utilise them as key tools in assessments of credibility and consistency and to make findings and conclusions accordingly. In these circumstances, it is not less than essential to examine the various formulations of the Appellant’s case. While we have considered these in full and have conducted this exercise with care, we confine ourselves to setting out in this part of the judgment some of the salient aspects thereof.

5. One begins with certain uncontested facts. The Appellant arrived in the United Kingdom on 2nd November 2008, having flown there from Amsterdam. He was unaccompanied. He claimed asylum on this date. He was arrested on suspicion of possessing a false identity document, namely a fabricated passport and this generated his subsequent conviction on 27th February 2009 (supra). This conviction became the impetus for the proposed deportation of the Appellant which, in turn, has stimulated the series of Tribunal hearings rehearsed in paragraph [1] above. From the date of his arrival in the United Kingdom the Appellant has been the subject of certain inquisitorial and investigative steps, including interviews, by the Respondent. In particular:

(i) In the “screening interview” dated 2nd November 2008, it is recorded that he did not know his age; he did not know his last permanent address in his asserted country of origin, The Sudan; he had left the Sudan with his ‘master’ five years previously, travelling via Uganda to Nigeria; his journey to Amsterdam and the United Kingdom had been organised by his master; his master’s name is “S. Brown” and he has known him from the age of seven years; he knew nothing about Nigeria; his master informed him that if he came to the United Kingdom his life “would be saved”; he had no family in Nigeria; the “rebel” had killed his parents; he could not remember his date of birth; his master had procured his Birth Certificate for him; he could not explain the fighting in The Sudan; and its bordering countries were The Congo, Tanzania and Egypt.

(ii) In his “Formal Statement” he said:

“I chose to come to the UK as I wanted to seek asylum so I could escape all the fighting that is going on in Sudan. I feel that if you deport me back to Sudan I will be in great fear of my life. I feel that it is my human right to seek asylum in this country”.

(iii) When the Appellant was interviewed for the purpose of compiling the “Statement of Evidence Form”, he asserted, in terms, that he was applying for asylum on the basis of an alleged risk to his life which he linked in some unspecified way to his sale as a slave to a man called ‘John’ claiming to be his uncle. He dated his story from 1983 when, he said, the war began. He asserted that following a further sale transaction, he subsequently became enslaved to one Mr. Brown. He suggested that Mr. Brown was having unspecified problems with “a group of people” demanding his release and that he had expressed a preference to remain with Mr. Brown “… as this group would kill me”. His professed reason for fear of returning to The Sudan was “the problem Mr. Brown created… some people see him as doing bad business …”: this, he asserted, had consisted of the provision of unparticularised information to unidentified Islamic Front Militants, stimulating a desire to destroy Mr. Brown, his household and servants (including the Appellant). Next, he asserted that his reason for leaving Nigeria was “because my master wanted me to be free” and he would have been “bullied” if Mr. Brown had left him there and would also have been at risk of further enslavement to one ‘Abraham’. In response to a specific question, he asserted that in the event of returning to The Sudan he “…would be killed … [would] … fall into the hands of the Government and would be sent back into slavery again …”.

6. It is clear from various materials that during his initial sojourn in the United Kingdom the Appellant was represented by Berri’s Solicitors. They represented the Appellant in connection with the proceedings in Isleworth Crown Court. In this context, they prepared a document entitled “Proof of Evidence”. This was clearly drafted by one of the firm’s solicitors (Mr. Nayager, a consultant solicitor). This contains the following salient passages:

“I was born in Sudan on 17th July 1973, my parents passed away (I don’t know when) and my Uncle John brought me up …

My Uncle John lived with a white man called Mr. Smith Brown and was employed doing domestic work for him. I lived with my uncle and the white man in Sudan for years …

I did not know Mr. Smith Brown’s nationality; he spoke English …

In Sudan my uncle eventually passed away (I cannot remember when or how old I was). Before my uncle died he gave me my Birth Certificate. When my uncle died I continued living with the white man, he took over the role of an adoptive parent. I took over my uncle’s role doing domestic chores …

The white man changed his business and needed to live in Nigeria and wanted to take me with him as he was my sole guardian. I had no family left or anywhere else to live in Sudan …

I think I was in my twenties around the time we moved to … Abuja, which is a town in Nigeria. I then continued living with the white man for years, I carried on doing my domestic tasks for him. The white man got me a private tutor to teach me reading and writing. I was never allowed out of the house on my own. The white man told me that my life was in danger.”

The document ends at this point. It is to be considered in conjunction with a document, evidently compiled by his solicitors, entitled “Brief Instructions of Adam Naiyame”, dated 15th January 2009, which contains the following noteworthy passages:

“The white man was getting very old and decided to go back to his country of origin. I don’t know where that was. The white man told me that he would make sure I went to a country which was safe and where I could claim asylum.”

In the next passage, the Appellant acknowledges that he was neither involved in nor the subject of any of the “political troubles” in Nigeria. He then claims that Mr. Brown (“the white man”) arranged his travel, transported him to an airport in Nigeria and schooled him in what to say.

7. One of the documents belonging to this discrete phase is a letter dated 9th March 2009 from Berri’s Solicitors to the Appellant, then in prison. This letter recalled the Appellant’s change of plea to one of guilty, on 27th February 2009 and his ensuing sentence to 12 months imprisonment. It noted that the Appellant’s “immigration solicitors” were Messrs. Howe & Company. In a separate letter bearing the same date, Berri’s Solicitors wrote to Howe & Company, advising them of the Appellant’s conviction and ensuing sentence and continuing:

“Mr. Niyami would still like to pursue his asylum claim failing which he would wish to return to Nigeria. Mr. Nyami would need assistance with the Home Office and the Nigerian High Commission to make his return to Nigeria possible as he has a Sudanese Birth Certificate.”

The Respondent’s Notice of Decision alludes to a third letter written by Berri’s Solicitors on 9th March 2009, containing the following passage:

“… Mr. Nyami has informed us that if his asylum claim were not successful he would wish to return to Nigeria. The reason is that both his parents were Nigerian nationals. They have both passed [sic] now. Mr. Nyami was born in Sudan and has a Sudanese Birth Certificate and lived in Nigeria for many years before he came to the UK. Mr. Nyami has no family or other ties in Sudan, but has a partner and support in Nigeria, which he came to see as his home country …”.

There is yet another letter written by Berri’s Solicitors which, surprisingly, does not feature in any of the sources in which one would expect to find it – in particular, the Notice of Decision, the various materials (written submissions, grounds of appeal et alia) compiled by this Appellant’s present legal representatives and the several Tribunal decisions to date. This letter, which is dated 25 February 2009, states:

“I write in relation to the above matter and further to our meeting yesterday. I confirm that we are trying to list your matter for change of plea on Friday 27th February 2009 so you can get as much credit as possible on your sentence, however credit will be reduced accordingly as it was not entered at the earliest opportunity …

The reason you are being advised to change your plea is because of the new instructions you gave your advocate and I at the legal visit, which is essentially your life was not in danger in Nigeria and therefore you are not a genuine refugee under the definition provided under Section 31 Immigration and Asylum Act 1999, therefore the defence cannot apply to you.”

[Emphasis added].

8. In the course of the series of Tribunal proceedings in which he has been involved the Appellant has made two written witness statements. The first is dated 16th August 2011. The main focus of this statement is the disadvantages to which he claims to have been subjected at the original first instance appeal hearing (paragraph [1], supra). In it he also provides some context for the written representations made by his former legal representatives, Berri’s Solicitors. The Appellant claimed that he did not remember everything he said to his solicitors while in prison and that he was “very depressed” there. He then recounts a consultation with his counsel on the morning of his trial:

“I said to him … that they should send me back to where I come from, either Holland or Nigeria, because I cannot return to Sudan. He said they cannot send me to Holland. He asked me if I have anyone in Nigeria and I told him I have a partner called Mary. Mary is a lady who used to provide items to my master and who said she would marry me if I was set free. We did not have an affair but she made this promise to me. …

I have lost her number …

I never said that my parents are from Nigeria. I am sure of this. They were from Sudan …

I did not know that Berri Solicitors were writing to the Howe office. I did not see a copy of this letter until my current legal representative has shown it to me. The first I knew of it was when the Howe office were talking about it at my hearing.”

This witness statement is signed and dated. Notably, it contains no assertions by the Appellant of linguistic, intellectual, medical or cultural complications affecting or infecting communications between Berri’s Solicitors and him.

9. The Appellant’s second witness statement, also signed by him, is dated 9th February 2012. This contains the following material passages:

“[1] In my earliest memory I was living in Juba, Sudan, with John and the white man, Mr. Smith Brown …

[4] John was a black man, like me. He told me that my parents sold me to him because my father owed money to him. I do not remember how old I was when I separated from my parents, but I might have been about five. I must have been young because I do not remember it …

[6] In 1983 John went to try to find my parents to give me back to them … he was not able to find my parents because the war broke out and my father was killed and my mother was taken into slavery …

[8] From as far back as I remember I lived in Juba, in May Street, in Mr. Brown’s house. May Street is a big street. I remember that there was a hospital and a Catholic Church, but I do not remember anything else. I did not go out much and it was a long time ago …

[9] I do not know what nationality Mr. Brown was. He was white man and he spoke English…

[11] John worked for Mr. Brown and so did I. Mr. Brown treated me as a slave. I was his property …

[23] Mr. Brown told me he had some problems …

[24] John died in 1999 …

[25] After John died Mr. Brown told me that he had paid money to John for me and that I was his slave …

[26] About one year after John died, Mr. Brown said he was going to Nigeria. He said he was not safe in Juba …

He told me that it would not be safe for me if I did not go.”

According to this statement, the Appellant and Mr. Brown then travelled separately to Nigeria, where their previous personal relationship and arrangements continued and Mr. Brown “… said that he was leaving and he would take me to a place where I would be free …” and arranged for the Appellant to receive some classes in English. The Appellant’s second witness statement ends in the following terms:

“[34] I am scared of being sent to Sudan or to Nigeria. I would be on my own. I have nobody there. I am scared that I would be forced to work as a slave again and that I will be treated badly.”

In the final passages, the Appellant eulogises the better life that he enjoys in the United Kingdom.

10. As recorded in paragraph [1] above, Judge Osborne, in granting permission to appeal, questioned whether the First-Tier Tribunal had taken into account “the Appellant’s written submissions on nationality and findings of fact dated 27th February 2012.” This is a reference to a document entitled “Appellant’s Written Submissions on Nationality and Findings of Fact”. This was a written submission, prepared and signed by Ms Cohen (of counsel), following the first instance hearing conducted on 23rd February 2012. It is dated 27th February 2012. At the hearing, this Tribunal was alerted to a documentary fax transmission record, dated 28th February 2012, indicating that this further submission was received by the Field House Upper Tribunal secretariat on this date. We find that this occurred and we further find, by inference and in the absence of any contrary evidence, that the written submission was then brought to the attention of the members of the First Tier Tribunal and considered by them. Having regard to the terms in which permission to appeal to this Tribunal was granted, it is important to appreciate the context within which the further written submission by counsel for the Appellant was compiled. According to paragraph 1, its impetus was … an enquiry from the Tribunal members –

“…….as to the Appellant’s case if the Panel were unable to reach a finding as to his nationality on the evidence available”.

The submission advanced the contention that the Tribunal would have to consider three issues:

(i) Whether the Appellant is a national of Nigeria.

(ii) If not, whether the Appellant could acquire Nigerian nationality.

(iii) In any event, whether the Appellant could be lawfully removed to Nigeria, given his claims for protection.

It is apparent from the submission that at the first instance hearing an issue had arisen, firstly, about whether “South Sudan” was a separate country and, secondly, one to which the Respondent could remove the Appellant. Counsel’s submission contended that such removal could occur only pursuant to a fresh immigration decision. The remainder of this submission makes clear that the only “removal” issue of which the Tribunal was seised was the Respondent’s proposal to remove the Appellant to Nigeria.

The Deportation Decision

11. Having outlined above the various formulations of the Appellant’s claims and assertions in his quest to obtain appropriate protection from the United Kingdom Government, it is appropriate to turn to the text of the Respondent’s Notice of Decision. This recites that the impetus for the proposed deportation of the Appellant from the United Kingdom was his conviction of the offence of possessing and/or using a false instrument, which generated a sentence of 12 months imprisonment. As noted above, the actus reus of this offence was the deployment by the Appellant of a false passport in his attempts to secure entry to the United Kingdom on 2nd November 2008 and he duly pleaded guilty. His conviction and sentence triggered Section 32(5) of the UK Borders Act 2007 which, in essence, makes provision for automatic deportation in such circumstances. The Notice of Decision recorded that the Appellant’s resistance to deportation was threefold:

(i) He was claiming asylum on the basis of an assertion that he had a well founded fear of persecution, consisting of a real risk of unlawful killing and/or torture or inhuman or degrading treatment, in The Sudan.

(ii) He was also claiming humanitarian protection under paragraph 339C of the Immigration Rules.

(iii) Thirdly, and finally, he was contending that to deport him to The Sudan would infringe his rights under Articles 4, 5 and 8 ECHR.

12. The Notice of Decision recorded the Appellant’s assertion that he was born on 3rd May 1973 in Nyala, Sudan and is a national of this country. It then rehearsed his life story, beginning with his assertion that he had been engaged to work as a slave in “a big house” in May Street, Juba. The Appellant, according to the decision, linked the beginning of his slavery with the outbreak of war in 1983 (when he was, on his case, aged ten years), following which he had two successive masters until around 1999/2000, when his second master took him to an agent in Uganda for the purpose of travelling to Nigeria. This duly materialised, following which the second master joined the Appellant in Nigeria, where his enslavement continued for “about 5 – 7 years” until 2008, when both left Nigeria (in November 2008), flying to Amsterdam and becoming separated permanently at the airport there. The Appellant complied with previous instructions given to him, which enabled him to fly from Amsterdam to the United Kingdom. [There is no dispute that the Appellant made this flight and arrived in the United Kingdom on 2nd November 2008]. The decision continues:

“Because you have no family in Sudan you would be killed, you will fall into the hands of the Government and will be sent back into slavery …”.

According to the decision, the Appellant had made the case that he had been a slave to one Mr. Brown from the age of five years; that his problems dated from the outbreak of internal war in 1983; that he then stayed with an uncle (John) as his slave; and that Mr. Brown then paid John for the Appellant, whereupon he became Mr. Brown’s slave. It is appropriate to highlight at this juncture the statement in paragraph [18] of the Notice of Decision:

“Your claim that you was [sic] taken by your Uncle John as a slave in 1983 and that he later sold you on to Mr. Brown as a slave from the age of five is not accepted”.

13. In paragraph [17] of the Notice of Decision one finds a key passage:

“However, there are many discrepancies in your claim and it is considered that there are issues within your account that cannot be accepted and as such you have failed to establish that you are a genuine refugee in need of international protection”.

This is followed by a further rehearsal of certain aspects of the Appellant’s case, as portrayed by the Respondent. In paragraph 18 of the Notice of Decision, the factual error noted in [21] infra is repeated, giving rise to the following conclusion:

“It is therefore concluded that your claim of being a slave is not accepted and that your claim for asylum is not based on factual events”.

Next, the decision adverts to the Appellant’s Birth Certificate, which represents that he was born on 17th July 1973 in the Kalma Refugee Camp. This assertion is rejected resoundingly, on the basis that the European Country of Origin Information Report for Sudan states that this camp was not established until February 2004. The decision then rejects the Appellant’s assertion that he was Mr. Brown’s domestic slave, giving rise to the Respondent’s refusal to accept the Appellant’s assertion that he would be at risk on account of certain problems generated by Mr. Brown having given unspecified information to Islamist Front Militants.

14. In the next part of the decision, the Respondent adverts to a letter from the Appellant’s former solicitors stating that the Appellant’s parents were both Nigerian nationals and indicating that Nigeria would be his preferred country of return. This letter further asserted that the Appellant has “a partner and support in Nigeria”. This prompted the Respondent to embark upon a consideration of whether the Appellant could acquire Nigerian nationality. Following an analysis of certain provisions of the Constitution of Nigeria, the Respondent provided an affirmative answer. The Respondent concluded that the Appellant is Nigerian, rather than Sudanese. The decision then questioned the credibility of the Appellant’s alleged historic links with The Sudan. The text continues:

“The fact that you failed to provide a consistent account throughout the asylum process strongly suggests that you did not leave Sudan or Nigeria for the reasons claimed. It is considered that your own versions of events are so inconsistent to the point of not retaining any credibility”.

The Deportation Decision: A Brief Analysis

15. In summary, the Appellant’s claims for asylum and humanitarian protection were founded on a life story spanning a period of approximately thirty years, beginning at the age of around five and founded on the rock of the twofold assertion that he had been born on 17th July 1973 and that his place of birth was The Sudan. The Respondent, in its Notice of Decision, highlighted various aspects of the Appellant’s story (as understood and portrayed by the Respondent), purported to find certain discrepancies and inconsistencies and concluded, in consequence, that the factual matrix advanced by the Appellant was not believable, impelling to a rejection of his claims for protection. On any showing, the crucial element in the Respondent’s Notice of Decision is the assessment and finding that the Appellant’s story is incredulous. This assessment and finding are inextricably linked to the Respondent’s expressed understanding and portrayal of his story, as expressed in the text of the decision.

The First-Tier Tribunal Decision

16. The impressively substantial quantity of documentary materials considered by the Tribunal is listed in paragraph [35] of the Determination. This included a series of official reports relating to The Sudan, written medical evidence and some of the other materials identified expressly or by implication in the foregoing paragraphs hereof, including the Appellant’s (admitted) false passport and his Sudanese Birth Certificate. In addition, the Tribunal heard evidence from the Appellant and the Reverend Evans. In paragraph [76], the Tribunal describes the Appellant’s evidence as “vague and sparse”, while simultaneously acknowledging his hearing loss, his learning difficulties and cultural differences. It found that the Appellant’s Birth Certificate was demonstrably false: see paragraph [78]. His claims of Sudanese nationality were seriously questioned: see paragraphs [79] - [81]. In paragraph [82], it is stated:

“… whilst the Appellant claimed to have been born in 1973, with war commencing in Sudan in 1983, when he had been handed over to his Uncle John for money by his parents he would have been 10 years old but he claimed that he had been 5. This is an important inconsistency and goes towards the core of credibility”.

[Emphasis added].

This is, self-evidently, a finding of substantial importance. It is not difficult to trace its origins to the Respondent’s less than accurate Notice of Decision.

17. The Tribunal concurred with the Respondent’s assessment that the Appellant was not a Sudanese national: see paragraph [83]. The Tribunal preferred the written representations from the Appellant’s solicitors to his contrary assertions: see paragraph [87]. Continuing, the Determination states:

“We note that he claimed that he had been living in Nigeria prior to entering the EU and that he had travelled out of (sic) a Nigerian airport. We also note that he claimed that he was in a relationship with a woman called Mary in Nigeria. Such evidence does have a ring of truth to it.

[88] We do not consider that it is plausible that Mr. Brown whom the appellant claimed had kept him enslaved would subsequently wish to grant freedom to the Appellant to such an extent that his master would pay for his travel to the UK and organise false papers so that he could exit Nigeria”.

On the issue of Nigerian citizenship the Tribunal concluded:

“[89] … there is no evidence before us that the appellant has resided in Nigeria for at least fifteen years and we therefore find that the appellant cannot avail himself of Nigerian citizenship under this provision”.

The Determination continues:

“[90] Our assessment of the evidence in the round is that the appellant is Nigerian”.

His claim that he is of Sudanese nationality was expressly rejected in the same paragraph.

18. The immediately ensuing passages in the Determination embody certain key findings:

“[97] We have found that the appellant is not a credible witness …

We have considered all the evidence in the round. We are concerned as to the lack of credibility in his account …

We do not consider on the totality of the evidence that it is reasonably likely that the appellant has been trafficked to the UK from Nigeria, or indeed Sudan.

[98] We find that as the appellant is not a credible witness that he has not established that he is at risk of serious ill treatment on return to Sudan or Nigeria so as to engage the Refugee Convention or Article 3 ECHR …

whilst he states that he will not be supported in Nigeria he travelled from that country where he claimed that he had lived and where he had the support of Mary”.

From this latter passage one extracts a discrete finding that, prior to leaving Nigeria, the Appellant knew and had a certain relationship with this lady. From this it is appropriate to infer that, contrary to other assertions made by him and on his behalf, his situation in Nigeria was not – and, in the event of deportation to that country, would not necessarily be – one of lonely isolation. The remaining paragraphs of the Determination consider in particular the Appellant’s Article 8 ECHR claim. The appeal was dismissed on all grounds.

Consideration and Conclusions

19. The assessment in the Respondent’s Notice of Decision and in the Determination of the First -Tier Tribunal that the Appellant’s claims for protection are characterised by and imbued with significant discrepancies and inconsistencies must be scrutinised with care. We remind ourselves that the central function of this Tribunal is to determine whether the Determination of the First-Tier Tribunal is contaminated by an error of law. The framework for determining whether an error of law has occurred is constituted by the Appellant’s four grounds of appeal. We turn to consider each in turn.

First Ground : the Removal Issue

20. It is argued that the First-Tier Tribunal misdirected itself on law on this issue. True it is that the Tribunal considered the question of whether the Appellant could be lawfully returned to The Sudan. We are of the opinion that this was an inappropriate diversion, since the decision under challenge made clear, notwithstanding the imperfections of its text, that the Respondent was proposing to deport the Appellant to Nigeria. It seems likely that this diversion was stimulated by the varying formulations of the Appellant’s case (supra) and the submissions of the Respondent’s representative at the first instance hearing. Whatever the full and true explanation for this “excursus” is, we conclude without hesitation that the Tribunal committed no material error of law in this respect. The Respondent, as a matter of law, is, at this point in time, restricted to deporting the Appellant to Nigeria and nowhere else.

Second Ground: Irrational Credibility Findings

21. We have, in paragraphs [11] – [18] above, set out and juxtaposed certain salient passages in the Respondent’s Notice of Decision and the First-Tier Tribunal’s Determination. The main argument advanced by Ms Cohen on behalf of the Appellant to this Tribunal was that both agencies fell into error on the issue of the Appellant’s date of birth. We consider that there is substance in this argument. We find that both the Respondent and the First-Tier Tribunal misunderstood and inaccurately portrayed the facts alleged by the Appellant concerning his date of birth and related issues. In our judgment, the Respondent’s Notice of Decision betrays a misunderstanding of the case made by the Appellant, particularly relating to the early phase of his life. The portrayal in the Notice of Decision of the Appellant’s case being that he had been a slave to one Mr Brown from the age of 5 years and that following an outbreak of war in the Sudan he then stayed with his Uncle John as his slave, subsequent to which Mr Brown paid John and the Appellant became Mr Brown’s slave is materially inaccurate. As appears from the summaries contained in paragraphs [5] – [6] above, the Appellant, from the outset, clearly made the case that he had been a slave to two masters successively, initially to “Uncle John” and subsequently to Mr Brown. He asserted that Uncle John was, in turn, Mr Brown’s slave until the former’s death. He claimed to have known Mr Brown from the age of 7 years (viz circa 1980, on his case). He suggested that he had been sold by Uncle John to Mr Brown before the former’s death. Notably, these claims are basically consistent with the story contained in the Appellant’s second witness statement: paragraph [9] supra. The First-Tier Tribunal in its “findings of fact and credibility” clearly adopted the Respondent’s evaluation of these issues. See paragraph [82]:

“The Secretary of State in the refusal letter did not accept the appellant was from Sudan as he noted the discrepancy in the Appellant’s claim and noted that he had claimed in part to be born in 1973 using a false birth certificate. However, it was noted that whilst the appellant claimed to have been born on 1973, with war commencing in Sudan in 1983, when he had been handed over to his Uncle John for money by his parents, he would have been 10 years old but he claimed that he had been 5. This is an important inconsistency and goes towards the core of credibility.”

[Emphasis added]

For the reasons elaborated, we consider this assessment unsustainable.

22. These misunderstandings and inaccuracies are unquestionably material, as they bear directly on a key conclusion of the two agencies concerned, namely an assessment that the Appellant’s story is incredulous. An assessment of this nature is sustainable as a matter of law only if demonstrably based on a correct understanding, appreciation and portrayal of the case being made. Both the Respondent and the First-Tier Tribunal were required, as a matter of law, to base their findings and conclusions on a correct understanding and appreciation of the case made by the Appellant. For the reasons explained, we consider that both agencies failed in this respect. We conclude that both the Respondent and the First-Tier Tribunal fell into error in this respect, that this is clearly an error of law and that this error is indisputably material.

Third Ground: Irrational Findings re Nationality

23. Having regard to the presentation of the parties’ respective cases, we consider that it was entirely appropriate for the first instance Tribunal to examine the separate questions of whether the Appellant, on all the evidence available, is either a national of Nigeria or a person capable of acquiring Nigerian nationality/citizenship. The Tribunal made an unequivocal finding that the Appellant is a national of Nigeria. We consider this finding unimpeachable. It is undermined neither by the Tribunal’s finding that the Appellant would be unable to acquire Nigerian citizenship – which was clearly predicated on the hypothesis (later rejected) that he is not a Nigerian citizen – nor the Tribunal’s finding that the Appellant could be removed to The Sudan. The exploration of the question of whether the Appellant might suffer proscribed treatment if returned to The Sudan was entirely understandable in our view, having regard to the confused and inconsistent terms in which the Appellant had claimed protection from the outset (see paragraphs [5] – [9] supra), coupled with the stance adopted by the Respondent’s representative at the first instance hearing. This was to the effect that the Tribunal had jurisdiction to consider removal of the Appellant to South Sudan (see paragraph 5 of Counsel’s further submission, dated 27th February 2012). We consider that the finding that the Appellant does not require international protection vis-à-vis The Sudan does not undermine in any way the Tribunal’s series of findings and conclusions relating to the proposed deportation of the Appellant to Nigeria. The latter were clearly relevant to the Tribunal’s consideration of the Appellant’s claim for asylum. We conclude that, as regards this ground, on any showing, no material error of law has been demonstrated.

Fourth Ground: Risk on Return to Nigeria

24. By the fourth ground of appeal it is contended that the First-Tier Tribunal erred in law in failing “…to take into account the objective background evidence in relation to the risks [the Appellant] faces on his disabilities…”. There is clear and undisputed evidence that the Appellant suffers from a hearing impairment and some intellectual impairment. In this respect, the case made to the first instance Tribunal invoked certain features of “country evidence”, including a Country of Origin Report. Reliance was also placed on the report of Dr. Sellwood, a consultant psychologist who examined the Appellant on 17th November 2011. He concluded that the Appellant has “cognitive impairment amounting to learning difficulties”, which he duly characterised according to the recognised standards. He opined that memory difficulties are “fairly common amongst people with learning difficulties”. He considered the Appellant’s participation in the tests administered genuine. He opined that the Appellant would have been “at a severe disadvantage” during the interviews conducted by the Respondent. He described the Appellant’s hearing loss and cognitive deficit as “two significant disabilities”, interacting with each other “to significantly inhibit learning and independent living”.

25. The ground of appeal which we are required to address is not of a qualitative nature. Nor does it sound on the merits of the first instance decision. Rather, it is correctly characterised an assertion. This assertion is to the effect that the First-Tier Tribunal “failed to take into account evidence as to risk on return to Nigeria”. In evaluating and determining this ground of appeal, we remind ourselves of the function of every appellate court. It is well established that it is not incumbent on first instance courts or tribunals to spell out in minute detail every aspect of the evidence considered by them and their evaluation thereof. Thus, this appellate tribunal should adopt a broad and panoramic view in determining this type of ground of appeal. In appropriate cases, this tribunal will readily infer that certain materials were indeed considered by the First-Tier Tribunal. The present case is a paradigm illustration of this proposition in one particular respect: we have already concluded, by inference, and without any hesitation that counsel’s supplementary post-hearing submission was transmitted to and considered by the Tribunal.

26. The issue on which the ‘country evidence’ bore was one of unmistakeable importance. While we are conscious of the First-Tier Tribunal’s primary findings in relation to the appeal, in particular those relating to the incredulity of the Appellant’s story, we would expect to find within the text of the Determination a clear indication that evidence of this importance had been duly considered. As a matter of pure textual analysis, there is no such indication. While one readily characterises the present case as moderately complicated, convoluted and factually intricate, we consider, nonetheless, that an assessment of this discrete body of evidence, the Tribunal’s evaluation thereof and its consequential findings should have featured clearly in the Determination. This did not occur. The error of law in which we find in consequence is a failure to consider, properly or at all, evidence that was plainly important. We conclude, for the reasons elaborated, that an error of law has been demonstrated in this respect.

Decision and Directions

27. Giving effect to the conclusions expressed above, this Tribunal has decided that the decision of the First-Tier Tribunal should be set aside and will be re-made in this forum.

28. Accordingly, the appeal will be listed for further hearing, on 16 January 2013. At the next hearing the parties must be in a position to make submissions as to what, if any, findings of fact of the First-tier Tribunal should be preserved.

29. No later than 14 days from the date on which this decision is sent out, the appellant must notify the Tribunal in writing of the specific type of interpreter required for the hearing. The Tribunal understands that the appropriate classification of the interpreter needed is a “sign lip-speaker”, which interpreter the Tribunal is minded to arrange for the next hearing.

Signed:

Mr Justice McCloskey
sitting as a Judge of the Upper Tribunal

Dated: 9th November 2012