Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00061/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 28 September 2016
On: 28 October 2016

Before
Deputy Upper Tribunal Judge Mailer

Between
secretary of state for the home department
Appellant
and

C B P
(anonymity direction made)
Respondent

Representation
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr C Ijezie, solicitor (Curling Moore Solicitors and Advocates)

Decision and Reasons
1. I continue the anonymity direction made. This direction is to remain in place unless and until this Tribunal or any other appropriate Court, directs otherwise. As such, no report of these proceedings shall, directly or indirectly, identify the respondent or any member of her family. Failure to comply with this direction could amount to a contempt of court.
2. For the sake of convenience, I shall refer to the respondent as "the claimant" and to the appellant as the secretary of state.
3. The secretary of state appeals with permission against the decision of the First-tier Tribunal promulgated on 23 June 2016 allowing the claimant's appeal against the decision of the respondent refusing to grant her asylum and her human rights claims (Articles 2 and 3).
4. The background to her appeal is set out in the decision of the First-tier judge at [16(1) - (26)]. He set out her case including her comments about her experts' evidence. This was set out in detail in her witness statement dated 1 December 2015.
5. The claimant is a national of the Philippines, born on 9 April 1969. She entered the UK on 1 October 2006 on a student visa valid until 13 September 2008. She was granted further leave to remain outside the Immigration Rules until 31 December 2010. She was granted further student leave until 20 April 2013. That leave was curtailed on 6 September 2012 and expired on 5 November 2013.
6. Her application for a residence card as the family member of an EEA national was refused. Her appeal against the refusal was dismissed on 13 September 2013. She became appeal rights exhausted on 16 October 2013.
7. On 17 April 2015 she claimed asylum. Following an interview, her claim was refused on 29 April 2015.
8. She claimed that she had left the Philippines for a number of reasons including the need to get away from her husband whom she had married on 11 March 1989. He turned out to be a drug addict and alcoholic who subjected her to verbal and physical abuse including rape. She left him before the end of April 1989 and did not return to him. She had only seen him once since then, in 2002, when she asked him to sign a form. He continued to follow her home from work every night until she came to the UK.
9. She contacted him in 2012 and asked him to sign her divorce papers. He did this on condition that she provide him with money each month. He told her that if she stopped that support he would inform the Philippines authorities that she had married in the UK.
10. She was granted a divorce in the UK and then married a Czech national in November 2012. She last saw her Czech husband in December 2013.
11. She contended that her ex-husband's consent to her divorce did not mean that she would not be prosecuted for bigamy in the Philippines. The State prosecuted bigamy of its own volition, without being prompted. If the State found out that she had been married twice, they would not accept her divorce in the UK and would prosecute her for bigamy. This did not need her ex-husband's involvement. There would be no defence that he had ill treated her because this happened a long time ago and she had no evidence of that. It is likely that she would be convicted.
12. Internal relocation in the Philippines would not be sufficient to avoid her prosecution for bigamy. She would be sentenced to prison for a period between 6 and 12 years and would face torture and ill treatment.
13. The Judge noted that her fears were supported by the opinions of two experts on the Philippines law. Both concluded that she had committed an offence of bigamy by contracting a second marriage in the UK without a judicial declaration of nullity of her first marriage.
14. However, the claimant stated in her witness statement that "surprisingly" it was the opinion of each expert that she would not be prosecuted for the offence of bigamy in the Philippines because that offence had been committed abroad paragraph [20] pages 6-7. Those experts failed to appreciate the fact that bigamy was regarded as a continuing offence and she would be returning to the Philippines as a bigamist and, at that point, would come within the jurisdiction of the Philippines court and be arrested and prosecuted for the offence of bigamy.
15. The experts had not explained "how her act to the second marriage in a foreign land, which was regarded as an offence of bigamy would stop being an offence of bigamy on her return to the Philippines."
16. Even if not prosecuted on return, she would not be able to get married to anyone else except her ex-husband. That amounted to "gambling with her Convention rights and freedoms" [22].
17. The claimant also contended that her marriage to her EEA partner was still valid and subsisting and he was still in the UK exercising Treaty rights. Until that marriage was dissolved, she had a right to remain in the UK as his partner. She had lived here for more than nine years and integrated into the UK. It would be disproportionate to remove her. She also feared that she would be harmed by her Filipino ex-husband and prosecuted [24-26].
18. The Judge had regard to the background material including Articles 45 to 47 of the family code of the Philippines [20]. He also had regard to the expert reports at [21].
19. The first report at pages 148-161 was prepared by an attorney, Lu Mamangun, a senior partner of the law office in Manila. This is dated 8 September 2015. The second report at pages 192-198 is from Mary Ann M Tolete-Juco, a member of the Integrated Bar of the Philippines. Her report is dated 12 June 2015.
20. Both experts stated that the claimant could not be prosecuted for bigamy on return to the Philippines as the bigamous marriage was contracted in the UK. The Court could not exercise jurisdiction over a person charged with an offence committed outside the jurisdiction.
21. The Judge made various findings. He stated that there seems to be no doubt from the experts that her divorce, obtained in the UK, would not be recognised in the Philippines. The respondent had contended that this would not put her at a real risk of being prosecuted for bigamy on return there.
22. The Judge however stated that he thought that there was a real risk that if returned, her husband would seek to get the State to take action against her for bigamy [41].
23. He had regard to "relevant sections of the family code" of the Philippines in relation to the obtaining of an annulment of the marriage rather than the straightforward divorce. That led the claimant to be locked into an unfortunate situation where, although by the law of the UK she was divorced from her former husband, it may not appear to the authorities in the Philippines that this had been an effective and complete dissolution of the marriage - [42].
24. The Judge found that without an annulment, she could be regarded on return as someone who had not divorced her husband and had therefore committed bigamy. He found that "bigamy is a continuing offence and that fact does not seem to have been properly considered within the two expert reports" - [43].
25. He also found that there was a danger that she could be prosecuted for adultery. Her ex-husband appeared to be capable of carrying a grudge. He stated at [45] that "my concerns in respect of this somewhat ambiguous situation that it creates for her a real risk (nothing so concrete as a risk on the balance of probabilities but more than merely a speculative risk) of persecution of her on return".
26. On 19 August 2016, First-tier Tribunal Judge Baker granted the secretary of state permission to appeal on the basis that in the light of the two expert reports, it was arguable that the Judge may have erred in law by reaching different conclusions in respect of likely prosecution by the State and in respect of the likely actions of her first husband for the reasons set out in the grounds.
27. There has been a Rule 24 response to the notice of appeal. In addition, the claimant's solicitors have filed numerous authorities both at the First-tier Tribunal hearing and subsequent thereto.
28. Mr Whitwell submitted that both expert reports were 'unequivocal' that the claimant cannot be prosecuted on return on account of bigamy in the UK. He submitted that the Judge had allowed the claimant's appeal under the protection grounds which included asylum as well as Articles 2 and 3 of the human rights convention.
29. He submitted that the Judge embarked on his own reading of relevant sections of the family code of the Philippines and stated his concerns that bigamy is a continuing offence and that fact does not seem to have been properly considered by the two experts [42-43].
30. He submitted that the Judge did not however set out any reasons as to why the evidence relating to non-prosecution should be "lightly disregarded" and supplemented with the Judge's preferred understanding of the Filipino family code. That is all the more so considering the reference to the "somewhat ambiguous situation at [45] of the decision."
31. He submitted that given the clear indications by the experts that the claimant would not be prosecuted on return, such a finding "is also perverse."
32. Moreover, the findings relating to the claimant's estranged husband, whom she had left in April 1989, and whom she had not seen since 2002 "borders on the perverse."
33. On behalf of the claimant, Mr Ijezie has produced a detailed Rule 24 response as well as the skeleton argument.
34. He submitted that the decision of the First-tier Tribunal was fair, just and reasonable. There were no material errors of law. The grounds amount to simple disagreement, or quarrel with the permissible findings of fact. In that respect he relied on well known authorities including R (Iran) and others v SSHD [2005] EWCA Civ 982 at [8-17]. He submitted that perversity represents a very high hurdle and was a demanding concept - R and others v SSHD [2005] EWCA Civ 982 at [11].
35. He submitted that the Judge was not bound to accept the opinions of the experts or to reach their conclusions in respect of likely prosecution of the claimant by the State in the Philippines. That is particularly so where the experts did not properly have regard to the "important question" as to whether or not bigamy is a continuing offence. The second expert concluded that the claimant would be likely to be prosecuted for a second offence of adultery upon return to the Philippines.
36. The role of experts is merely to assist the Judge and not to usurp his functions. He is not bound to rubber stamp their conclusions.
37. The Judge did not assume an expertise that he did not possess. He simply based his conclusion on the assessment of the factual and expert evidence before him including credible evidence and publications on prison conditions. He gave sufficient plausible and cogent reasons why he rejected their opinion on the issue of likely prosecution.
38. The first expert did not answer the important question as to whether bigamy is a continuing offence. The second expert misconstrued the notion of "continuing offence" to mean "series of acts" and reached a wrong conclusion. The Judge preferred his understanding of the Filipino Family Code.
39. He submitted that the appeal was also allowed on the basis of risk on return in that she had committed adultery. There has been no separate appeal against that finding.
40. In reply, Mr Whitwell submitted that in his grounds seeking permission, he referred to the fact that the Judge found that there was a real risk of persecution on return to the Philippines. That was enough to encompass adultery as well.
41. In any event, the Judge at [44] found that there was a danger that she could be prosecuted for adultery. That still relates to an extra territorial offence committed in the UK. There was accordingly absence of any reasoning relating to the danger asserted that she could be prosecuted for adultery.
Assessment
42. I have had regard to the claimant's supplementary bundle produced at the hearing before the First-tier Tribunal on 13 May 2016. In the bundle there is an extract from the penal code of the Philippines on pages 327-341.
43. Article 1 sets out when the penal code (Act no. 3815 dated December 8, 1930) takes effect. The code takes effect on 1 January 1932.
44. Article 2 sets out the application of its provisions. It states that "except as provided in the treaties and laws of preferential application, provisions of this Code shall be in force not only within the Philippine archipelago including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who:
(a) should commit an offence while on a Philippine ship or airship;
(b) should forge or counterfeit any coin or currency note of the Philippine islands or obligations and securities issued by the government of the Philippine islands;
(c) should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number;
(d) while being public officers or employees, should commit an offence in the exercise of their functions; or
(e) should commit any of the crimes against national security and the law of nations, defined in title one of Book two of this code.
45. The Code then sets out chapter 1 relating to felonies. It appears from that code that the provisions of the penal code will be enforced with regard to those extra territorial offences set out in paragraphs 1 to 5 of Article 2.
46. In the Code under Title 11, Crimes Against Chastity, including adultery and concubinage, are set out. There is also the offence of bigamy referred to at Article 349.
47. I have also had regard to the Family Code of the Philippines produced on pages 342 and following.
48. The claimant also produced a decision of the First Division Court dated July 31, 2000. The issue to be resolved in the petition presented was whether the subsequent filing of a civil action for a declaration of nullity of a previous marriage constituted a prejudicial question to a criminal case for bigamy. It was held not to be a prejudicial question. The respondent in that case was not permitted to use his own malfeasance to defeat the criminal action against him.
49. There is also the decision of Panganivan, J. in the case of Mercado v Tran G.R No. 137110, August 1, 2000, produced at p373 of the bundle which considered a claim relating to bigamy, where both marriages took place within the jurisdiction of the court.
50. These decisions do not appear to be germane to the issues under consideration.
51. I have also considered the report of the experts.
52. Attorney Mamangun stated that the claimant has committed the crime of bigamy in accordance with Philippine statutes (paragraph 16). She is legally married to B. Their marriage has not been legally dissolved from the viewpoint of the Philippine laws. The claimant married C, which she assumed had all the essential requisites for validity under UK law.
53. Accordingly the claimant has "consummated" the crime of bigamy from the moment that her marriage with C was celebrated without having previously dissolved her marriage to B.
54. At paragraph 21 of her opinion, however, she noted that bigamy is not a continuing crime. She referred to the revised penal code where the crime of bigamy is committed by the singular act of marrying another person whilst the previous marriage is still valid and subsisting. The criminal act is "thus consummated" at the precise time of the celebration of the subsequent marriage. (The parties accept that the expert intended to state that the criminal act is "thus committed").
55. At paragraph 24 she stated that the crime of bigamy from the viewpoint of Philippine laws is committed from the moment of the celebration of the subsequent marriage of A to C. There are no series of acts involved in the crime of bigamy which would qualify as a continuing crime. The crime is consummated by the single act of celebrating a second marriage while the first is still validly subsisting.
56. Further acts of cohabitation or sexual intercourse although not elements of the crime of bigamy, may however constitute a separate crime of adultery or concubinage.
57. At paragraph 26 the expert stated that the claimant cannot be prosecuted for the crime of bigamy upon her return to the Philippines since the bigamous marriage was contracted in the UK. The Court in the Philippines cannot exercise jurisdiction over a person who commits an offence outside his jurisdiction.
58. Reference is made to Article 14 of the new Civil Code of the Philippines which provides for the principle of territoriality. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippines' territory, subject to the principle of public international law and treaty stipulations.
59. She stated that the aforesaid rule admits of those exceptions referred to in Article 2 of the revised penal code, which I have already set out.
60. She concluded that the claimant's situation does not fall among those exceptional circumstances where the Philippines could retain jurisdiction for crimes committed outside its territorial boundaries.
61. This applies to the offence of adultery as well. However, should the claimant and C come to the Philippines to cohabit, they may be prosecuted for the separate and distinct crime of adultery.
62. I have had regard to the expert report of Ms Tolet-Juco dated 12 June 2015. She stated at paragraph 17-18 that the claimant cannot be prosecuted for bigamy upon her return to the Philippines since the bigamous marriage was contacted or solemnised in the UK. This was not a violation of Article 2 of the revised penal code of the Philippines which may be applied extra territorially. The Court has to find that the offence was committed within its jurisdiction. Since the second marriage was contracted in the UK it does not fall within any of the exceptions allowing for extra territorial jurisdiction (paragraph 21).
63. The First-tier Tribunal Judge has not undertaken any analysis of the penal code of the Philippines which sets out the basis upon which a Philippines court is entitled to exercise extra territorial jurisdiction with regard to offences committed outside of its jurisdiction.
64. The Judge had regard to the Family Code of the Philippines but did not consider the penal code.
65. The Judge then asserted without any reasoning that bigamy is a continuing offence and "that fact does not seem to have been properly considered within the two expert reports."
66. Both experts did however consider that question very carefully as is plain from their respective reports. They have given proper reasons for their opinion that bigamy is not a continuing offence. Nor is adultery.
67. Although the Judge raised concerns about "this somewhat ambiguous situation" the opinions of the experts were not ambiguous but were based on the relevant Codes applicable in these circumstances.
68. Although the secretary of state's grounds of appeal did not expressly rely on these conclusions with regard to the offence of adultery, it is evident that the Judge stated that it is also the danger that she could be prosecuted for adultery if her ex husband seeks vindictively to get the state to act against her [44].
69. However, the adultery relied on was committed outside the jurisdiction of the Philippines and was itself not a continuing offence.
70. In the circumstances, the finding by the experts that the appellant would not be prosecuted for either bigamy or adultery committed whilst abroad was not properly analysed or dealt with by the First-tier Judge.
71. If the claimant could not lawfully be prosecuted for either of these offences, there was no real risk that she would be detained and subjected to inhuman treatment as alleged.
72. I accordingly find that the making of the decision by the First-tier Tribunal Judge involved the making of an error on a point of law.
73. I accordingly set aside the decision. Both parties agreed that in those circumstances the matter should be remitted to the First-tier Tribunal to be determined afresh.
74. There will be a fresh hearing date before the Tribunal and the claimant's solicitors are at liberty to apply to that Tribunal for further case management directions should that become necessary.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and the decision is set aside.
The appeal by the secretary of state to the Upper Tribunal is allowed to the extent that the claimant's appeal is remitted to the First-tier Tribunal to be determined afresh by a different Judge of that Tribunal.
Anonymity direction continued.

Signed Date
Deputy Upper Tribunal Judge C R Mailer 22 October 2016