(Immigration and Asylum Chamber) Appeal Number: IA/22910/2011
THE IMMIGRATION ACTS
Heard at Field House
On 9 May 2013
On June 11 2013
UPPER TRIBUNAL JUDGE STOREY
miss Agnes Omolade Adeladun Mayowa
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Miss J Bond instructed by S J Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant, a citizen of Nigeria, appealed against the determination by First-tier Tribunal Judge Walters sent on 21 September 2011 dismissing her appeal against a decision made by the respondent on 20 July 2011 to remove her as an illegal entrant. This was in response to the appellant’s application made in May 2010 seeking to be allowed to stay on the basis of her long residence, fears about return to Nigeria and disruption of her established private life ties in the UK. She had made an earlier application in September 2005, which was refused in September 2008. On 11 April 2012 Deputy Upper Tribunal Judge Garratt set aside Judge Walters’s determination specifying that the re-making of the determination was confined to human rights issues only.
2. In the reasons given by the respondent for refusing the appellant’s application, it was stated that the appellant had failed to substantiate her claimed period of residence (19 years 6 months) and that “it is highly likely that deception has been employed in order to gain leave …” “albeit with or without her knowledge”. The appellant claimed that she had arrived in the UK in 1992 with a woman she called her aunt who press ganged her into domestic cleaning work. In 1998 she left her aunt and with the help of a woman who befriended her at a bus stop found work and enrolled on a course to qualify as a nurse. After seeking help in 2005 from solicitors (Total Legal Services) with legalising her position in the UK, she discovered they were submitting fraudulent documents on her behalf. In January 2009 her new solicitors produced a sworn affidavit declaring that she had never given Total Legal Services any British Gas bills, Thames Water bills, bank statements or wage slips and documents which the respondent had examined and found to be bogus.
3. At the hearing before Judge Walters the appellant reiterated her earlier account, confirming that the only documents she gave Total Legal Services were documents from Newham College relating to residency between September 2004 – July 2005, five certificates from Heart Aid which gave no indication of her address and her City & Guilds certificate which also did not contain any reference to her address. She produced at the hearing documentary evidence that she was registered with the NHS between 2002-2005, a photograph of her with a small child on her back on the back of which was written “2002.” Another photograph, he said, was taken in 2003. There were also witness statements from two friends, Mr Williams, who said he first met her in 2001 and Mr Faseha who had first met her in 2004 when they were both studying at Newham College. He said the appellant had become part of his family and was especially close to his children aged 2 and 4.
4. Whilst the determination of Judge Williams has been set aside, both parties were in agreement that certain of his findings of fact were not in dispute in particular that Mr Williams had met the appellant in 2001 and that “the Appellant has established a private life in the UK since 2001.”
5. At the hearing before me Miss Bond clarified that whilst she was aware that the appellant’s residence in the UK since 2001 was no longer in dispute, the appellant continued to maintain that she had arrived in the UK in 1992 and she and her witnesses wished to give evidence about that, as well as about a very recent development in the nature of the relationship between her and Mr Williams.
6. The appellant gave evidence, speaking first about the recent development in her relationship with Mr Williams. They had been friends since 2001 but over the past year had grown closer. In December 2012 they had decided she should move in with him and she did this in March 2013. She confirmed she had arrived in the UK in 1992, brought here aged 13 by a lady whom she knew as her aunt although they were not related. She could not remember any significant events over that time. Her aunt had made her do cleaning work in the Walthamstow area, but she did not go out on her own and did not use trains or buses, had not visited a doctor and did not watch TV. She thought it odd that children her own age she saw in houses where she went to clean went to school whereas she did not. She did not have anyone to speak to about it. Her aunt told her if she tried to run away she would be taken away. She stayed with her aunt six years. When she decided to leave, she met a lady at a bus stop who helped her and took her in. She stayed with her one year; she got work. She had tried to locate this lady to be a witness in her appeal but could not find her.
7. In cross-examination the appellant said she had never had any bills or bank account or letters to show where she had lived prior to 2001. She was asked how it was her relationship with Mr Williams had recently changed given that she had said in her earlier witness statement that she had told him earlier she wanted them to be just friends. She said he had tested her and they had grown closer and now they were a couple living together. When she was with her aunt she had been very isolated, there were no other children in the house. She stayed with her aunt until she was 19.
8. Asked why she had a strong Nigerian accent, the appellant said that was because she had lived there a long time and did not speak English when with her aunt. In Nigeria she had gone to primary school but left before getting a primary school certificate. She had obtained City and Guilds certificate and was training to be a nurse. She had learnt sign language.
9. Asked if she knew that Total Legal Services were applying for long residency on her behalf, she said she had told them she wanted to become a nurse here and they had asked for her college certificates. She had given them the documents they asked for and left it to them. She never knew they had applied for long residency using false certificates. When she got the Home Office refusal letter in 2008 she had tried to find out from the solicitors what had happened, but they said the person dealing with their case was ill. She did not know why they had gone to the trouble of manufacturing documents.
10. Regarding the friendship with Mr Faseha and his family, she said she had described her as an aunt to his children because she had got to know him and his family very well.
11. Asked by me whether the aunt from whom she had escaped still lived in the same area, she said she was ever worried about bumping into her aunt she said she had not spent much time out and about. Asked by me whether Total Legal Solutions had asked her for documents about where she lived, she said she had given them the college documents and did not know about any others.
12. The next witness was Mr Williams. Originally a signing interpreter had been booked to assist him, but was not available at the time fixed for the hearing. Miss Bond said she had discussed the matter with Mr Williams and established that he was not fully deaf and felt he could manage without a signing interpreter by a combination of lip-reading and partial hearing.
13. Both representatives moved very near the witness to help ensure he could see and hear them. Miss Bond also undertook to repeat everything I said to the witness. I explained to Mr Williams that if he had any difficulties he should put his hand up and we would take stock. In the event he was able to hear satisfactorily everything said and his own answers to questions were very clear.
14. Mr Williams confirmed he had been born in the UK. He had a brother, sister and other relatives here. He had been deaf since aged 4. He had met the appellant in 2004. She had told him she had arrived in the UK in 1992 and had been forced to do cleaning work by a lady known to her as an aunt. She had told him that this lady had taken away her passport and treated her like a slave. When she ran away she had received help and a room over her head from a lady who had helped her. She had said to him that she had stayed with this lady some time. He was now in a relationship with the appellant. They had been living together since February.
15. In cross-examination Mr Williams said he could not say why there was no updated statement from him about the development in his relationship with the appellant. He agreed he had said in his witness statement that it was best if they were just friends, but things had just developed. He knew her mother tongue was Yoruba. If the appellant had to go back to Nigeria, he would support her in applying to come back to be with him.
16. Asked by me whether the appellant had specifically mentioned 1992 as the date she arrived, he said she had. He was in work. He currently kept all bills in his name.
17. Mr Faseha also gave evidence as he had done before the First-tier Tribunal. He apologised for having no witness statement. He had met the appellant in 2004 at Newham College and she soon became good friends with him and his wife and children. He remembered her saying she had come to the UK in 1991. He saw her twice a week. She came to his family home and sometimes his wife invited her to stay. She had told him recently that she was now in a relationship with Mr Williams and that they were living together.
18. In cross-examination he said he had found out the appellant and Mr Williams were living together in March, she said she had moved in in February. He (Mr Faseha) had been abroad for a month. When they met it was he who encouraged her to study to become a nurse and he believed she had great zeal. She came to his house at least once a week. His wife is Hungarian; he came to the UK in 1996 and married in 2007.
19. In submissions Mr Tufan asked me to dismiss the appellant’s Article 8 appeal. He submitted that the respondent had been right to conclude she must have been complicit in the submission by Total Legal Solutions of fraudulent documents. That was a relevant factor in the Article 8 assessment.
20. As regards the length of the appellant’s residence in the UK, there was no documentary evidence of her presence before 2002 and no basis for departing from the First-tier Tribunal finding that she had only been resident here since 2001. The appellant’s evidence about the 1992-2001 period was vague and unconvincing and reliance on what she told Mr Williams and Mr Faseha was not enough.
21. Mr Tufan said he was prepared to accept that the appellant had been friends with Mr Williams since 2001, but the claim at the door of the court that they were now cohabiting was difficult to square with his previous witness statement that she had to him said they should just be friends. It was also difficult to follow how Mr Faseha (who said he saw the appellant at least once a week) did not know until March 2013 they had decided to live together, when the couple’s evidence was they had decided to live together before moving in a month or so later in December. If the couple are accepted as now being in a relationship, she could go back to Nigeria and apply there as a fiancée or unmarried partner.
22. Even if it was accepted the appellant saw Mr Faseha’s children once a week, that was not enough to have created family life ties between her and them. Whilst the fact that the appellant had learnt sign language and was using this to help people in the community was a relevant factor but was not one which should carry significant weight in the Article 8 balancing exercise. The Court of Appeal decision in UE (Nigeria)  EWCA Civ 975 did not assist the appellant’s case.
23. Miss Bond began by apologising for not having alerted the Tribunal before today to the fact that the appellant and Mr Williams had been cohabiting since March; she had only learnt of it today. However it was a fact before the Tribunal. She urged that I find the appellant generally credible. There had been every opportunity on the part of the police and/or immigration authorities to prosecute her for fraud in relation to the false documents submitted by Total Legal Solutions on her behalf, but they had not done anything. The appellant did not even sign the application form submitted by Total Legal Solutions. It had to be borne in mind that the appellant had been trafficked to the UK when only 13 years old and was clearly extremely dependent on help from others and she was not the only one who had been duped by Total Legal Solution.
24. Whether the Tribunal considered the appellant had been in the UK since 1992 or 2001 she had been here a very considerable period at a formative stage of her life. Clearly there had been a close friendship between the appellant and Mr Williams since 2001 and whether classified as private life or family life, it should carry considerable weight especially as she was clearly providing strong support to Mr Williams in coping with his deafness and was also putting her signing skills to use in the community, which represented a valuable and much-needed skill. The UE case did assist the appellant.
25. As both parties agreed, the only issue before me is whether the decision made against the appellant was contrary to her human rights. Before the First-tier Tribunal Judge the appellant claimed she had specific fears about returning to Nigeria. These she rejected and although her decision has been set aside the appellant has not sought to pursue this aspect of her claim before me. Whilst the decision of the First Tribunal Judge has been set aside it is common ground that his findings establish that the appellant has been in the UK from at least 2001.
26. The appellant has sought to maintain her claim that she had in fact been in the UK since 1992 spending the first six years here in virtual slavery. I regret to say I do not find this aspect of her claim credible. I accept Miss Bond’s point that if her account is true then she would have had limited ability to document her life in the UK between 1992–2001. Mr Tufan queried whether if she had been in the UK since 1992 she would still have a strong “Nigerian accent,” but if her account was correct, she had not spoken English hardly at all between 1992-2001, so I discard this as a significant matter. At the same time, she has now had the assistance of two sets of solicitors since 2009. It is well-documented that Total Legal Solicitors were shut down and several working there convicted of criminal offences, but her subsequent solicitors have clearly taken efforts to advance her case, yet there is nothing to suggest that she or they made any serious attempt to identify the aunt to the police or to take action against her for the tort of slavery. The appellant was only able to say she had looked for her aunt once without success. There is nothing to suggest either that the appellant or her solicitors had sought to locate the woman who had taken her in for about a year or the person or persons who had given her work. The appellant was not even able to identify, the address of the house of the woman who had helped her. The appellant said she could not produce any official letters because she had not had contact with them and had not gone to a doctor. I consider that it is unlikely she would not have had contact with a doctor or other government or local authority services soon after she begun to live with the woman who helped her. I also consider it is unlikely that having and on her account had no schooling since she was 6 the appellant was able to obtain the qualification she did so quickly especially as on her own account when she was with her aunt she was living an isolated life and did not mention doing anything but cleaning work.
27. I acknowledge that the appellant’s two witnesses have given evidence that she told them she had been in the UK since 1991/1992 in the circumstances she also set out in her own evidence. However, both Mr Williams and Mr Faseha are personal friends and lack the status of independent witnesses. Weighing factors for and against, I regret I do not accept their evidence on this score.
28. I turn to consider the nature and extent of the appellant’s private and family life ties since 2001. Whilst I am prepared to accept that she has known Mr Fahesa and his family since 2004, I do not accept that the relationship has been as regular as claimed. In my judgment if the appellant had been to his house at least once a week (except for one month when he was away), then it is most unlikely she would not have told him and his wife straightaway her news about Mr Williams and their decision made in December 2012 to live together. Mr Faseha’s evidence was that he did not learn about this until March 2013. Despite his and the appellant’s claims that she was like an aunt to his two children, no photos have been produced of them together. Even if it was accepted that she had a bond with the children, she did not live with them and saw them at best once or twice a week. There was no evidence to suggest that Mr Faseha and his wife were not full-time primary carers of their two children. This is not to say that the appellant’s relationship with Mr Faseha and his family has not been an important one but it is not one which establishes strong ties here.
29. As regards the appellant’s relationship with Mr Williams, it is clear that (like her relationship with Mr Faseha) this too has been a very important relationship for both of them and it is one that is over 10 years old. For all but the last six months, however, it has been limited to one of personal friendship and neither has sought to suggest that up until very recently Mr Williams was economically or emotionally dependent on the appellant or vice versa.
30. The evidence of both the appellant and Mr Williams is that the nature of their relationship has changed and they are now living together. Having heard from both of them and observed their interaction I am prepared to accept that they are presently in a close relationship and that they now live together. I do not accept, however, that their relationship changed as long ago as December 2012 or that they began living together since March. When setting the case down for a continuation hearing the Upper Tribunal made clear that the appellant should produce any further relevant evidence and she has been represented by competent solicitors. If the couple had decided in December to live together or to have begun living together in March then the appellant would surely have known the importance of informing her solicitors and/or the Tribunal about this. Yet Miss Bond said it had not been mentioned to her legal representatives until the day of the hearing. Nor, apart from the same witness Mr Fahesa has there been any evidence submitted from friends or neighbours of Mr Williams. As already noted, I also consider that if the appellant and Mr Faseha had been truthful in their account of being in weekly contact, Mr Faseha would have known about the change in the couple’s relationship in December/January. Yet he said the first he knew about it was in March 2013. My conclusion is that the close relationship between Mr Williams and the appellant is a very recent development and that this reduces the weight I can attach to it. Their relationship is a private life tie established over ten years which has very recently intensified, but it is to be contrasted with an established relationship based on a significant period of cohabitation.
31. It is clear that it represents a potential interference with the appellant’s right to respect for private life. It is not in dispute that the refusal decision pursues a legitimate aim.
32. Turning to assessment of the proportionality of the decision, I count in favour of the appellant that she has been in the UK since 2001, that during that time she has developed private life ties of friendship with the family of Mr Faseha and also with Mr Williams, that she has sought to better herself through obtaining qualifications with a view to training as a nurse, that she has learnt sign language which is a skill she has put to good use already and could continue to do so in the future. In respect of her ties with Mr Faseha and his family, however, I do not consider these amounted either to family life ties or very close private life ties. In respect of Mr Williams, I have already observed that although I accept this has been a strong personal friendship over a decade long it has not until very recently been one of cohabitation nor one that has involved any specific financial or emotional dependency.
33. I count against the appellant that she has been in the UK unlawfully throughout her time in the UK. I do not accept that the circumstances of her arrival and subsequent stay involved coercion or duress and I specifically reject her claim to have arrived in 1992 and being forced into domestic servitude. As regards her involvement in the fraudulent application made on her behalf in 2005 by Total Legal Solutions, I have serious reservations about her claim to have played no part in it and I find it implausible that the legal advisers at this firm would not have discussed with her the need for her to obtain documents to prove her residence and addresses in the UK since her arrival. On her account they only ever asked her for documents relating to her educational qualification. Yet the application they made was for long residence and if they saw fit to ask her for educational documents, why would they not also have asked for documents showing residence. The most likely answer, in my judgment, is that they did ask and she told them she could not provide them because in fact she was not here until 2001. But it is unnecessary for me to rule whether she was a knowing party to the fraud, since at the very least she was clearly negligent in relying on those advisers to pursue an application of a kind she said she never knew about.
34. I count against the appellant that the development in the relationship with Mr Williams beyond that of friendship was clearly commenced by her in full knowledge of her previous immigration status.
35. As observed earlier, the appellant has not proved earlier claims to fear for her safety and wellbeing on return to Nigeria and I consider both the respondent and the First-tier Tribunal Judge gave cogent reasons why such fears have no objective basis. On the evidence I consider that the appellant has spent all of her life as a child in Nigeria and did not come to the UK until 19. The fact that whilst in the UK she has obtained some employment experience and college qualifications will undoubtedly stand her in good stead in readjusting to life in Nigeria upon return.
36. Miss Bond has sought to argue that I should consider that Chikwamba  UKHL 40 principles as clarified in subsequent case law point towards a decision that I allow her appeal so that she can now develop her relationship with Mr Williams either as a fiancée, unmarried partner or spouse, without the need for her to return to Nigeria to apply for entry clearance. I have had careful regard to Chikwamba and subsequent authorities seeking to refine its principles, including Kussin, R (on the application of) v SSHD  EWHC 358 (Admin) (22 January 2009). Given my finding that the development of the appellant’s and Mr Williams’ relationship into one of cohabitation is very recent, I do not consider that would be a justified step to take, particularly given that the development has taken place when the appellant has had a pending Article 8 appeal. In my judgement there is no proper basis for considering that any possible future application for the appellant to be admitted as an unmarried partner, fiancée or spouse of Mr Williams would be straightforward. The couple have yet to demonstrate their relationship is not just short-term and that she can fulfil all the requirements of the relevant Immigration Rules.
37. For the above reasons:
38. The decision of the First-tier Tribunal Judge (which is annexed) be set aside.
39. The decision I re-make is to dismiss the appellant’s appeal.
Upper Tribunal Judge Storey
REASONS FOR FINDING THAT THE TRIBUNAL MADE AN ERROR OF LAW, SUCH THAT ITS DECISION FALLS TO BE SET ASIDE
1. On 6th October 2011 Judge of the First-tier Tribunal J M Holmes refused permission to the appellant to appeal against the determination of Judge of the First-tier Tribunal Walters who dismissed the appeal on human rights grounds against the decision of the respondent to remove the appellant under Section 10 of the Immigration and Asylum Act 1999 following the refusal of her human rights claim. However, in a decision dated 10th November 2011 Judge of the Upper Tribunal Kekić sitting in the Upper Tribunal granted permission.
2. In the grounds of application to the Upper Tribunal representatives took issue with the judge’s credibility findings concerning a long residence claim which had been supported by false documentation but through representatives claimed to have acted dishonestly. It is also argued that the judge should not have raised the issue of application of paragraph 322(1A) of the Immigration Rules when this was not raised by the respondent in the refusal decision. It is further argued that the judge did not take into account the “numerous photographs” produced. As to the Article 8 claim representatives submit that the judge’s approach to the issue of the existence of family life was flawed and the requirement set out in Kugathas  INLR 170 had not been considered nor had the respondent’s obligations under Section 55 of the Borders, Citizenship and Immigration Act 2009 presumably in relation to Mr Faseha’s daughters. Further the judge failed to consider the respondent’s exercise of jurisdiction under paragraph 395C of the Immigration Rules.
3. When granting permission Judge of the Upper Tribunal Kekić though that the criticism of the judge’s approach to Article 8 and his conclusion suggested that arguable errors of law had been made and, particularly, consideration of proportionality at paragraph 52 of the determination was inadequate. She also thought it arguable that the judge was wrong to raise paragraph 322(1A) of the Immigration Rules of his own volition. She also thought that the reason for Counsel before the First-tier Tribunal not seeking to argue the appeal under the Immigration Rules needed to be clarified.
4. In relation to the latter matter it is evident, from the decision appealed against that the appellant had applied for the respondent to consider her claim to remain on human rights grounds only following the failure of the application to remain on the basis of long residence which had been refused by the respondent on 5th September 2008 because of the submission of documents which could not be relied upon. Thus, human rights issues only arise in this appeal.
5. In submissions Ms Bond confirmed that the appellant relied on the grounds put to the Upper Tribunal. She further conceded that it was irrelevant for the judge to apply the provisions of paragraph 322(1A) of the Immigration Rules as it was irrelevant to the human rights application made. However, the judge had fixed the appellant with knowledge of the former representatives’ claimed dishonesty. The firm involved, Total Legal Services, was now the subject of a criminal investigation although she was unable to put any information before me to confirm that position. The judge had failed to consider the appellant’s involvement in claimed dishonesty under the principles established in AA (Nigeria) in circumstances where the appellant claimed to know nothing about the dishonesty of representatives. There had been no Presenting Officer at the First-tier hearing and so it was important that the allegation of fraud, the burden of proving which rested upon the respondent, had to be properly considered. The judge’s conclusion also affected the findings in relation to Article 8 and consideration of proportionality was inadequate.
6. Mr Saunders also agreed that Article 8 issues only were relevant. The appellant could not have succeeded on the claim of long residence. Whilst he agreed that consideration of proportionality could have been more thorough he pointed out that the judge had accepted that the appellant had been in the United Kingdom since 2001 although without leave to remain. It was also not in dispute that the appellant had gained a qualification in lip-reading whilst in the country even if without leave. My attention was drawn to the appellant’s statement in the bundle before the First-tier Tribunal at page 14 which, he thought, made no mention of the establishment of family life. On this basis he thought that the judge’s findings on family life were sound. As to the omission of reference to all of the photographs produced he thought this was not relevant in view of the judge’s acceptance that the appellant had been in the country from 2001.
7. Ms Bond argued that the judge had not paid proper attention to the evidence of Mr Faseha at the hearing or that of Mr Williams before reaching conclusions about the Article 8 claim.
8. At the end of the hearing I announced that I was satisfied that the determination showed errors on points of law such that it should re-made. My reasons for reaching that conclusion follow.
9. The judge was wrong to consider that paragraph 322(1A) could be applied to the circumstances of the appeal because the appellant had been involved in the submission of false representations or false documents. The application which forms the subject of this appeal covered human rights issues only. Issues relating to the submission of false documents arose at the time of the refusal of the appellant’s long residence claim in September 2008 but even then, the respondent did not apply any of the provisions of Part 9 of the Immigration Rules to the refusal. Refusals under that part are made at the discretion of the respondent and should not be applied by the Tribunal at the time of the hearing.
10. Although, on the face of it, the judge’s application of paragraph 322(1A) to his decision appears irrelevant, it is clear that the judge placed weight upon the credibility of the appellant’s claims when dealing with the Article 8 claim. As paragraph 53 of the determination states, the appellant was found to be generally not credible and so the claim that the appellant had no family in Nigeria to return to was not believed because of general incredibility. The judge’s approach to the appellant’s credibility with reference to the submission of false documents is also flawed because the judge did not show that he was aware that the burden of proof rested upon the respondent as indicated in [blank] and an intention to deceive by the appellant had to be shown (AA (Nigeria)) by relying upon the appellant’s perceived dishonesty in the past the judge was therefore in error in his approach to the Article 8 claim and the facts which supported it. On this basis the determination should be re-made.
11. I should pointed out that I was unable to proceed to re-make the determination because the appellant’s Article 8 witness, Mr M A E Williams required an English sign language interpreter but one had not been booked.
Deputy Upper Tribunal Judge Garratt