Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/14602/2014

THE IMMIGRATION ACTS

Heard at Field House London
Decision & Reasons Promulgated
On 24th November 2016
On 16th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

miss shamiLa mpore
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER - NAIROBI
Respondent

Representation:
For the Appellant: Ms S Akinbolu (Counsel)
For the Respondent: Mr E Tufan (HOPO)

DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Lal, promulgated on 28th April 2016, following a hearing at Hatton Cross on 19th April 2016. In the determination, the judge allowed the appeal of Miss Shamila Mpore, whereupon the Respondent Entry Clearance Officer, subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a female, a citizen of Burundi, who was born on 15th June 1997. She appealed against the decision of the Respondent Entry Clearance Officer dated 12th September 2014, refusing her application for entry clearance to settle in the UK under paragraph 320(3) and paragraph 297 of HC 395.
The Appellant's Claim
3. The Appellant's claim is that she wishes to join her mother, Mrs Amina Nbabazi, and that she has applied previously twice before, because her father is deceased. She submitted a registered death certificate dated 6th September 2013. However, this was nearly a year after the death of her father which was on 22nd August 2012. Moreover, the death was not medically certified. The ECO held that documents of these kind are easily generated and readily available in a country like Uganda and the Appellant provided no reasonable explanation for the delay in registering this death.
The Judge's Findings
4. The judge observed how the evidence from Mrs Amina Nbabazi before him was that she had always maintained that she and her husband together with their children were all from Burundi. Her documentation has always shown this. She and her family fled to Rwanda and then to Uganda and her husband was killed in a car crash in 2012 and she described the burial according to Islamic practice and how she sent monies from the UK to cover expenses.
5. Judge Lal made two observations. First, that with respect to the issue of nationality, there is no requirement under Rule 297 to produce a valid national passport. The issue between the Appellant and the sponsoring mother, Mrs Amina Nbabazi has been established beyond any reasonable doubt because of the DNA application submitted with the application.
6. Moreover, previously Judge Raymond found that the Appellant and her brothers were from Burundi but living in Uganda as refugees. The Sponsor has also described them as coming from Burundi (see paragraph 10).
7. Furthermore, the Tribunal had been provided with the Appellant's birth certificate and her brother's birth certificate which list them as asylum seekers in Uganda (paragraph 11).
8. Judge Raymond had also found the Appellant and the Sponsor to be credible witnesses.
9. Second, with respect to the application of Rule 276 and consideration of whether the Appellant's father was dead the Ugandan birth and death registration at UBDRA 1973 had been referred to. Ms Akinbolu, who appeared as Counsel before the Tribunal on that occasion
"has enclosed the totality of the Act which shows at Section 18, an exception to the Rule that all deaths must be registered within one month. This is where the registrar is satisfied as to the truth of the particulars and the proscribed fee has been paid. The Tribunal is satisfied that this precisely what the Sponsor described when she herself travelled to Uganda to register the death" (paragraph 12).
10. The judge went on note how the Sponsor had used an intermediary but that there was nothing to suggest that the certificate was not genuine and the Tribunal accepted the explanation that the father was listed as "Ugandan" because this was
"in all probability to facilitate the issuance of the death certificate is a timely manner as it would not normally be issued in respect of foreign nationals. Likewise, the description of the 'brother' was a mechanism used by the intermediary" (paragraph 12).
Third, what Judge Lal found "to be most significant" was the evidence of Mr Jones who described that when he met the Sponsor some three years ago she told him her husband was dead, and Mr Jones was in a relationship with the Sponsor now, and Judge Lal observed how "this was before the current application and adds to her overall credibility in respect of the chronology and the events described" (paragraph 13).
11. The judge went on to conclude that "the Tribunal is satisfied that the Appellant has established her identity and her Burundi nationality and that her only living parent is in the UK" (paragraph 14).
12. The appeal was allowed on the basis that the Appellant met the requirements of the Rules (paragraph 15).
Grounds of Application
13. The grounds of application state that firstly, the judge was wrong to conclude that paragraph 297 has no requirement for the Appellant to produce a valid national passport because paragraph 320 applies to part 8 (paragraph 297), under which the Appellant has applied. Secondly, there had been a misdirection because the judge overlooked the fact that the Sponsor used an intermediary to obtain the father's death certificate, such that the judge was wrong to conclude that "there is nothing to suggest that the certificate is not a genuine one". Third, the judge did not give the Home Office Presenting Officer the opportunity to cross-examine the Sponsor because she was repeatedly interrupted. In fact, the judge indicated that the Presenting Officer should stop the submissions because he was going to find the Sponsor credible.
14. On 15th September 2016, permission to appeal was granted.
Submissions
15. At the hearing before me on 24th November 2016, Mr Tufan handed up the notes of the Home Office Presenting Officer ("HOPO"). These were dated 19th April 2016. They showed, submitted Mr Tufan, a degree of "procedural impropriety", in that the judge prejudging the issue in circumstances of paragraph 320(3) had not been satisfied. A death certificate had been produced which was anonymous not least in the fact that it was not produced within three months as required under local law. Second, Mr Tufan submitted that although there was an apparent allegation of bias on the part of the judge, he did not wish to labour this point because the stronger point was the failure to comply with the requirements of paragraph 320(3) in the way that the evidence had been submitted.
16. For her part, Ms Akinbolu relied upon her Rule 24 response. She submitted that paragraph 320(3) deals with the mandatory Grounds of Refusal of someone who fails to produce "a valid national passport or other document satisfactorily stabling his identity and nationality". In this case the Appellant had provided "other document" and Judge Lal dealt with this very issue resolving it in the Appellant's favour.
17. Secondly the case of AM (Somalia) [2009] UKAIT 0008 determined that the failure to produce a document proving identity leads to a mandatory refusal under paragraph 320(3). He goes on to say that, "There is, however, a right of appeal against that refusal unless a document sought by the decision maker falls within the definition of 'immigration document' is Section 88(3)". In this case paragraph 297 did not require the production of a valid passport because if one looks at the case of AM (Somalia) it is clear from the last paragraph in the determination that the following is stated:
"The Immigration Judge had before her a document issued by the Ugandan Government, as we have indicated. She had oral evidence from the Sponsor, which she believed. She was entitled to take the view that there was nothing in the document or in the evidence that she heard which threw any doubt upon the statement made (no doubt on the Appellant's instance, but) by a governmental authority. In those circumstances it seems to us right that she should regard the document as having satisfactorily established identity. We do not say that a document of this sort is always to be taken in that way. Documents are produced in various countries in various ways and other circumstances may from time to time give cause to doubt the accuracy or even genuineness. The evidence before the Immigration Judge taken as a whole in this case simply showed that there was no doubt. There was therefore no reason to read the document in any other way than the way in which it reads on its face" (paragraph 12).
18. Third, what this meant was that so long as the Appellant could produce sufficient other documentary evidence to satisfy the authorities and the Tribunal about her identity that was sufficient. In this case the judge referred to the DNA evidence, to the judgment of Judge Raymond in favour of the Appellant, which appears at page 64 of the bundle, the doctor who registered her as an asylum seeker in Uganda (see page 42), and all of this is sufficient to identity the Appellant such that she can be meet the requirement of the Rules. This was because paragraph 320(3) refers to, not just the valid national passport, but to "any other document" as well.
19. Fourth, as far as the issue of apparent bias was concerned there was no "procedural impropriety" because if one looks at the note of 19th April 2016 produced by the HOPO there is no suggestion that the HOPO was prevented from cross-examining the witnesses. The complaint here really is one of "interrupting my submissions".
20. Ms Akinbolu submitted that she was Counsel in the first instance hearing as well and she remembers there having been a discussion at the outset of the appeal as to what the issues were, and the documents that were going to be relied upon, together with the earlier finding of Judge Raymond, which the judge was bound to follow as a starting point. To complain about being interrupted does not lead to an inevitable conclusion of there being procedural impropriety. Both representatives accepted that the determination of IJ Raymond had to be the starting point.
21. In his reply before me, Mr Tufan stated that, "I accept IJ Raymond's determination is the starting point", but his main submission was that the judge did not deal with the death certificate in the appropriate manner.
No Error of Law
22. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law such that I should set aside the decision. My reasons are as follows. First, paragraph 320(A) does not require the production of a valid passport as the only means of ascertaining the identity of a person. The reference there is to "any other document" as well, and as Ms Akinbolu has submitted there was substantial other evidence which enabled the judge to come to the view that he was satisfied about identity.
23. Second, this is entirely consistent with the determination of the Tribunal in AM (Somalia) [2009] UKAIT 0008, which recognises that documents may be produced in various countries in various ways, and that the judge has to take the case into account as a whole, and that case established that it may very well be that, "the consequence of that is that, as a governmental document apparently testing identity and nationality, it satisfactorily established identity and nationality, that is to say to the satisfaction of the Immigration Judge" (paragraph 12).
24. And third, any concerns about the production of the death certificate, almost a year after it was due to have been certified, were expressly addressed by the judge (at paragraph 12) who pointed out that Ms Akinbolu had produced the entire combination of the Ugandan Birth and Death Registration Act 1973, and this allows for an exception to the Rule that all deaths must be registered within one month. An explanation was given and the judge accepted the explanation.
25. The judge also dealt with the matter of the father having been listed as "Ugandan" and came to the view that this was "in all probability to facilitate the issuance of the death certificate in a timely manner as it would not normally be issued in respect of foreign nationals" (paragraph 12). That was a conclusion that was open to the judge and is not at odds with what is stated by the Tribunal in AM (Somalia).
26. Fourth, the suggestion by the HOPO in the note of 19th April 2016 about the discussion between the judge and Counsel does not raise a question of 'apparent bias' at all, and Mr. Tufan was wise not to labour the point. There was no "procedural impropriety" because if one looks at the HOPO's own note of 19th April 2016 there is no suggestion there of the HOPO being prevented from cross-examination and only of the Judge "interrupting my submissions".

Notice of Decision
There is no material error of law in the original judge's decision. The determination shall stand.
No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 16th January 2017