(Immigration and Asylum Chamber) Appeal Numbers: IA/05219/2012
THE IMMIGRATION ACTS
Heard at Field House
On 12 November 2013
On 28 November 2013
UPPER TRIBUNAL JUDGE MOULDEN
TA, PA, CA, JA and IA
(Anonymity Direction Made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellants: Mr J Martin of counsel instructed by Raj & Co
For the Respondent: Mr P Nath a Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The first appellant was born on 11 September 1980. The second appellant is his partner who was born on 26 August 1985. The other appellants are their children born in July 2008, July 2009 and January 2011. The first appellant is a citizen of Sierra Leone and the other appellants are citizens of Nigeria. The appellants have been given permission to appeal the determination of a panel (First-Tier Tribunal Judge K S H Miller and non-legal member Mrs J Holt) ("the panel") who dismissed their appeals against the respondent's decision in respect of the first appellant dated 23 February 2012 to deport him from the UK under the provisions of Section 3 (5) (a) of the Immigration Act 1971 and in respect of the other appellants dated 11 September 2012 refusing their applications for further leave to remain in the UK.
2. The first appellant arrived in the UK in 2000 and claimed asylum. His claim was refused but because of the state of upheaval in Sierra Leone he was granted four years exceptional leave to remain. During this period he was convicted of offences of theft and deception. In April 2004 he was sentenced to 18 months imprisonment. He made an in time application for indefinite leave to remain in April 2005 supplemented, in July 2009, by a further application for asylum. Shortly afterwards he was convicted of another offence of deception and sentenced, on 6 August 2009, to 6 months imprisonment. The asylum application was refused on 5 January 2012. His outstanding application for indefinite leave to remain was refused on 23 February 2012. On 23 February 2012 the deportation order was made.
3. The second appellant claimed to have met the first appellant in the summer of 2007. It is difficult to track the second appellant's visits to the UK through the stamps in her current and previous Nigerian passports. However, it appears that she has had multiple entry visit visas and has travelled between Nigeria and the UK on at least 10 occasions. Initially she travelled on her own but after each of the children was born they accompanied her on some if not all occasions. If the passport is correct the last visit, with all three children, was in September 2011. The last leave to enter was due to expire on 18 April 2012 and the second to fifth appellants made their applications for leave to remain on 17 April 2012.
4. The appellants appealed and their appeals were heard by a panel (Immigration Judge McIntosh and non-legal Member Mrs M Padfield JP) ("the first panel") on 2 November 2012. The first panel allowed the appeals of all the appellants. The respondent was granted permission to appeal and, on 14 March 2013, Upper Tribunal Judge McKee found that there were errors of law and set aside the decision. He directed that the appeals be reheard in the First-Tier Tribunal. The only part of the decision preserved was to allow the appeal of the second to fifth appellants against the s47 removal directions.
5. At the hearing before the panel on 10 June 2013 both parties were represented, the appellants by Mr Martin who appears before me. Oral evidence was given by the first and second appellants. The panel found that the first and second appellants were not credible witnesses. All the appeals were dismissed both under the Immigration Rules and on human rights grounds.
6. The appellants sought and were granted permission to appeal by a judge in the First-Tier Tribunal. The grounds argue that the panel erred in law because its findings of fact are insufficiently reasoned, fail to take into account all of the appellants' submissions and are irrational.
7. I have all the documents which were before the panel including Mr Martin's skeleton argument. At the end of the hearing Mr Martin assisted by borrowing the second to fifth appellants' passports from Mr Nath and preparing a schedule of the second to fifth appellants visits to this country from Nigeria from the information set out in the entry and departure stamps in the passports.
8. Mr Martin relied on the grounds of appeal. In paragraphs 35, 40 and 41 of the determination the panel found that all the appellants could go to Sierra Leone or Nigeria and stay together in either country. However, the panel failed to deal with the fact that removal directions for the first appellant were to Sierra Leone and for the other appellants to Nigeria. The panel had failed to give sufficient reasons for rejecting the evidence that the first and second appellants did not want to go to either Sierra Leone or Nigeria and that conditions in both countries were either hostile or unsuitable. These objections had not been dealt with. I asked Mr Martin whether his submissions about these matters were recorded in the determination. He said that they were not. He provided a copy of his skeleton argument before the panel but accepted that these matters were at best only touched on in paragraphs 18 and 22.
9. Mr Martin accepted that the panel had made a broad adverse credibility finding against both the first and second appellants but said that this was not a blanket finding which removed the need for individual findings of fact. In paragraph 37 the panel erred by considering the first appellant in isolation from the other appellants. It was not correct to say that the first appellant's circumstances and offences were such that the public interest "greatly outweighs any argument in favour of his being allowed to remain." Furthermore, the panel only looked at the risk of offending in a historical rather than the current risk context. However, Mr Martin accepted that this last point was not in the grounds of appeal and there had been no application to amend the grounds.
10. As to the panel's conclusion that the second appellant had not established that she was a member of the Benin Royal family Mr Martin submitted that it was not correct for the panel to say that there was nothing about this in the documentation. He accepted that her birth certificate which was claimed to show that her father was a prince had been not been produced.
11. In reply to my questions, Mr Martin accepted that the panel reached conclusions as to whether all the appellants could go to Sierra Leone or to Nigeria. He also accepted that the burden of proving that the appellants could not go to a particular country fell on them and that the test to be applied was whether it was reasonable to expect them to go there. This would also be the test to be applied if the first appellant was removed to Sierra Leone, the other appellants were removed to Nigeria and the question arose whether the family could be reunited by the first appellant travelling to Nigeria or the other appellants travelling to Sierra Leone.
12. I was asked to find that the panel had erred in law, to set aside the decision and to direct that it be reheard (for a third time) by a panel in the First-Tier Tribunal.
13. Mr Nath relied on the two refusal letters. It was clear that the respondent had considered the first appellant on the one hand and the second to fifth appellants on the other both individually and collectively. There was no reason why the panel should not make the assessment as to whether all of them could go to Sierra Leone or Nigeria and their assessments and conclusions were both rational and open to them on the evidence. It was open to them to conclude that there was no risk to anyone on return to either country. The first appellant was a repeat offender who had stolen large sums of money. It was for the appellants to establish that they could not go to any particular country. He accepted that the test was one of reasonableness. Mr Nath submitted that the panel did not err in law and asked me to uphold the decision.
14. In his reply Mr Martin submitted that the best interests of the children needed to be considered and clearly this was that they should be with both parents. I reserved my determination.
15. I find that it was open to the panel to conclude that both the first and second appellants were not credible witnesses. The reasons for this conclusion are set out in paragraph 42 to 45 which, in turn, need to be read with the determination as a whole. They are broad adverse credibility findings which impinge on all the evidence of the first and second appellants except to the extent that the panel accepted aspects of their evidence either specifically or by necessary inference. It was open to the panel to find that the first appellant had not established that he had no family in Sierra Leone, for the reasons set out in paragraph 32.
16. I find that there is no error of law in the panel's treatment of the psychiatric report at paragraph 33. The panel reached a conclusion open to it on the evidence and there is no flaw in the reasoning. There is a false premise in paragraph 3 of the grounds of appeal where it is argued that; "given that he was granted leave following his asylum claim it must have been accepted that he had suffered as a result of the fighting". The first appellant's asylum claim was rejected. He was only granted four years exceptional leave to remain because of the conditions in that country at that time, not because of any acceptance that he had suffered.
17. By the time of the hearing before the panel the second to fifth appellants' appeals against the s47 removal directions had been allowed in the decision of Upper Tribunal Judge McKee. There were no removal directions to Nigeria. However, as both representatives now accept, it was not for the respondent to prove that any of the appellants could not go to either Sierra Leone or Nigeria. The burden of proof falls on the appellants and the test is whether it is reasonable to expect them to do go to one country or the other. I find that it was open to the panel to conclude that all the appellants could go to Sierra Leone or Nigeria. It has to be borne in mind that whilst the ultimate sanction is forced removal there is nothing to prevent other outcomes. For example all appellants making a voluntary departure for one country or the other (or indeed somewhere else), the first appellant being removed to Sierra Leone and the other appellants accompanying or joining him, the second to fifth appellants being removed to Nigeria and the first appellant accompanying or joining them, or if the first appellant is removed to Sierra Leone and the other appellants are removed to Nigeria for them to reunite in either country.
18. I find that the panel did not fail to have regard to the best interests of the children. In paragraph 39 they said; "as we have stated above, with regard to the children, we conclude that, at their ages, the most important matter is that they should continue to be with one or both of their parents."
19. Whilst the panel was dealing with different appeals against different decisions it is common ground that it was appropriate for all the appeals to be heard together and the appellants to be considered as a family group. However, it was also necessary and appropriate for the panel to consider the position of the first appellant separately, which is what they did in paragraph 37. I find that when the panel said; "in our view, the first appellant's commission of the offences described above when considering whether it is proportionate for him to be deported, greatly outweighs any argument in favour of his being allowed to remain", it was looking at the position of the first appellant in isolation. Looked at in isolation this was a conclusion open to the panel. I find that it was not a conclusion which was intended to apply to the situation of the group, as what follows in the determination makes clear.
20. The point made by Mr Martin at the hearing, that the panel failed to consider the current risk of reoffending, is not a point raised in the grounds of appeal and there has been no application to amend the grounds. Furthermore, I can find no reference to it in the skeleton argument before the panel. I have not been referred to any independent report dealing with the risk of reoffending.
21. In paragraph 5 of the grounds of appeal it is argued that the panel failed to take into account factors such as the length of time the first appellant had been in the UK, the grant of exceptional leave to remain and the delay in making decisions. All these matters are referred to in the determination and I can find no indication that the panel failed, as they stated in paragraph 42, to consider all the evidence. Whilst there was delay by the respondent in making decisions on the first appellant's applications for asylum and indefinite leave to remain it has to be borne in mind that he was convicted of two sets of offences, one before the application for indefinite leave and the other shortly after the repeated application for asylum. I cannot see that the first appellant has been prejudiced by the delay.
22. On the evidence it was open to the panel to conclude that the second appellant had not established that she was connected with the Benin Royal family. They did refer to the evidence submitted by her, in paragraph 42. They did not say, as Mr Martin submitted, that there was no evidence.
23. To protect the interests of the children I make an anonymity direction. I make an order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify any of the appellants.
24. I find that the panel did not err in law and I uphold the decisions.
Signed Date 13 November 2013
Upper Tribunal Judge Moulden