Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: dc/00013/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 February 2017
On 28 February 2017

Before

THE HONOURABLE MR JUSTICE COLLINS
UPPTER TRIBUNAL JUDGE LINDSLEY

Between

Secretary of State for the Home Department
Appellant
and

NEVILLE ANTHONY CLARKE
(anonymity direction NOT MADE)
Respondent

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Mr A Khan, instructed by Manchester Associates

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Turnock given on 21 November 2016 whereby he allowed the respondent’s appeal against the decision of the Secretary of State to deprive him of his citizenship.
2. The respondent came to this country originally in 1995 on a six month visit visa from Jamaica. In May 1996 he claimed asylum on the basis of his father’s involvement in the Jamaican Labour Party. That application was not pursued but in December 1997 he applied for indefinite leave to remain as the spouse of a person present and settled. He was initially granted exceptional leave for a period of a year. He then reapplied for the indefinite leave which was granted in September 1999. He then in 2002 applied for citizenship based on his marriage to a British citizen and having three dependent children in this country and that application was granted on 21 January 2003.
3. The respondent says that he was branded as a police informer and in 2003 he was attacked and he claimed that as a result of the attack he had to flee to save his life and he went to the United States. He was involved there in cocaine offences and the result was that he received a sentence of five years’ imprisonment and returned to this country in 2009 when he had completed the service of that sentence. Having returned here he involved himself in criminality and was in due course convicted in 2010 of very serious offences including manslaughter and dealing in drugs and he received a sentence totalling twelve years’ imprisonment. He had served a substantial period in custody and as a result he has now been released from his sentence although he will be subject still to licence.
4. The basis upon which he was to be deprived of his citizenship was the allegation by the Secretary of State that prior to obtaining his citizenship in January 2003 he had obtained a passport in 1999 which was in a false name but which he used in order to travel to the United States. That he used that passport to travel to the United States is admitted. There was no issue about it and indeed he was convicted of having that passport in his possession dishonestly but he was also charged before the Crown Court, when convicted of the matters to which we have already referred with having obtained that passport in 1999 and of that offence the jury acquitted him. That in itself does not mean that the Secretary of State cannot establish that he was indeed responsible for obtaining that passport because the burden of proof is different. Before the jury in the criminal case his guilt had to be proved beyond reasonable doubt. So far as these proceedings are concerned the Secretary of State has to establish on the balance of probabilities that he has been guilty of the dishonest act alleged against him, namely the obtaining of a false passport. It was in the name of a man called Williams and the address which was given was the address which the respondent had been living in but had left certainly by 1998 and so at the time that the passport was applied for and issued in 1999 he was no longer living at that address. Nonetheless, there is clearly some evidence that ties him to the obtaining of this passport. In addition there was evidence from the United States Embassy that the fingerprints on the false passport were his. That as the First-tier Judge correctly indicated does not establish any more than that he used the passport. It certainly cannot establish that he was responsible for obtaining the passport.
5. Leave to appeal was sought on the basis that the evidence produced a prima facie case that he had made the application and that was sufficient to satisfy the balance of probabilities. That, on the face of it, may be no more than a disagreement with the finding of the judge but leave to appeal was granted on the basis that it was arguable that the wrong standard of proof had been applied in the judge’s decision and that he gave inadequate reasons for his findings. He correctly referred in paragraph 42 of his decision to the case of SM [2016] UKUT 00229 (IAC) in which the President made it clear that in civil proceedings there was but one standard of proof, namely proof on the balance of probabilities, but the more serious the allegation or the more serious the consequences of the allegation, the stronger the need for cogent evidence before a court would find the allegation, proved on a balance of probabilities. Thus as has been said again and again in this context, strong evidence is needed to satisfy a court that dishonesty has been established and clearly this is a case where there is a need to establish dishonesty it being common ground that were the Secretary of State able to establish on the balance of probabilities that the respondent had been responsible for obtaining that passport that would be an entirely justifiable reason for depriving him of his citizenship. The case against him has not been put on the basis of any conduct of his after the citizenship had been granted, namely his criminal activities in this country. It appears to have been assumed that that could not justify removal of citizenship. It is not for us to go into that aspect or consider whether that is indeed correct, particularly having regard to the recent decision of the President in relation to those who committed the dreadful offences in Rochdale but that, as we say, is not a matter which is for us in this case.
6. Having in our view quite clearly correctly directed himself as to the burden of proof he referred in paragraph 43 to the different standard of proof applicable, he puts it, in certain cases (he should perhaps have said in criminal cases but it may be simply a typo.). Be that as it may he clearly recognised the distinction to be drawn between the burden in a criminal case which led to the acquittal and in the case before him. He then said in paragraph 44 that the passport was issued on 26 June 1999 and the evidence produced did not establish the respondent was at or was using that address at that time. That in itself we recognise is not necessarily in any way conclusive because it was the address at which he had been living until a year or so before the obtaining of the passport and it was an address clearly known to him and one might say that if the passport was to be sent through the post then he would have access to it. His case is that he was provided with that passport, albeit he had obtained in February 2003 a passport in his own name, someone he knew rather who was then living at his old address in order to conceal his identity because he needed, he said, to conceal his identity in order to escape any retribution and to leave this country. The strength of that assertion may certainly be considered somewhat doubtful. Nonetheless, the fact is that he had moved from that address at the material time. The judge went on to deal with the fingerprint evidence referred to by the respondent which only established that he used the passport, “which is not accepted by the appellant”. There is an intrusive ‘not’, because it was clearly was accepted by the appellant that he had used the passport. The fingerprints can prove no more than that he made use of the passport or rather that he handled the passport at some stage and he did handle it in making use of it. It seems to us that the basis upon which permission was granted is not made out.
7. The judge went through the evidence and his conclusions in paragraph 44 are based upon what he had set out in his account of the background to the case and in any event, in our view, the key point is that the evidence available did not establish in the judge’s view to the necessary standard that the respondent obtained or was party to obtaining the false passport in 1999. He noted that a very poor copy of the passport was produced and so it was not possible to say that the photograph in the document was a photograph of the respondent and there was no evidence from the Secretary of State to suggest that the photograph was indeed that of the respondent. It may be said that it must have at the very least been remarkably similar to the respondent because the American authorities allowed him to enter on the basis of that false passport. Nonetheless the evidence was not before the judge. Furthermore the fact is that the jury, albeit on a different standard, had not been persuaded that he had obtained the passport and that is a factor which undoubtedly is material. The result is that this case now turns on whether it can be said that the conclusion reached by the judge that suspicion was clearly established and not proof on the balance of probabilities was one which was a decision he was entitled to reach. It can only be said to amount to an error of law if it could not have been reasonably reached, applying the Wednesbury test. It seems to us on the evidence that was produced before the judge and what the Secretary of State was able to put before him, the judge was entitled in law to conclude as he did and it cannot be said that his decision was an irrational decision. It is to be noted that in the decision letter much reliance is placed understandably upon the fact that he had made use of this passport but it does not produce sufficient evidence to establish that the respondent had indeed obtained it. If it was clear that the photograph was indeed a photograph of him we would find it very difficult to accept that that was not sufficient proof on the civil standard of his having been involved in obtaining it but that clear evidence was not available and even if it was before the jury that would not prevent the decision being properly made that indeed it was the respondent who was involved in its obtaining.
8. On the basis of the evidence put before Judge Turnock, in our view the decision was one which he was entitled to reach. We would only add this. There is nothing to stop the Secretary of State if she is able to obtain further evidence which does establish that the photograph is indeed that of the respondent or if it is open to her in the light of decisions reached that conduct after the obtaining of citizenship which is sufficiently serious in its criminality can justify deprivation then there is as we say nothing to stop her making a fresh decision based upon such material. However, as it is, we must dismiss this appeal.
Notice of Decision
The appeal is dismissed under the Immigration Rules.
No anonymity direction is made.

Signed Date: 15 February 2017

Mr Justice Collins

TO THE RESPONDENT
FEE AWARD
We have dismissed the appeal and therefore there can be no fee award.

Signed Date: 15 February 2017

Mr Justice Collins