Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00182/2016

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 7 November 2016
On 21 November 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

chaveskie crossley
(aNONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Bobb, instructed by Aylish Alexander Solicitors
For the Respondent: Mr P Duffy, Senior Home Office Presenting Officer

DECISION AND REASONS
The Appellant
1. The appellant, a citizen of Jamaica born on 15 July 1994, now aged 20 years old, appeals, with permission, against a decision of First-tier Tribunal Judge Rowlands who on 28th July 2016 dismissed the appellant's appeal against a decision of the Secretary of State dated 17th December 2015, refusing the appellant's protection and human rights claim. The appellant claimed his deportation to Jamaica would breach his Convention, Humanitarian Protection and Human Rights
2. The appellant had arrived in the United Kingdom as a visitor in 2002 with his grandmother. His application for indefinite leave to remain was refused and he became appeal rights exhausted on 6 June 2008. On 4 May 2011 he was issued with a warning letter about his conduct following a decision not to pursue deportation at that time after his series of criminal convictions (including theft and robbery) and breach of a Supervision Order for non compliance, as a juvenile. On 13 May 2011 he submitted a human rights application and was granted discretionary leave to remain until 12 May 2014 but in the intervening period, on 28 January 2014, he was convicted of attempted robbery and sentenced at Isleworth Crown Court on 20th March 2014 to two and a half years' imprisonment. He appealed neither the sentence nor the conviction
3. On 6 October 2014 a decision was made to issue a deportation order under Section 32(5) of the UK Borders Act 2007. By virtue of Section 32(4) of the UK Borders Act the appellant's removal was conducive to the public good for the purposes of Section 3(5)(a) of the Immigration Act 1971. His immigration history and human rights were considered but it was recorded that there was significant public interest in deporting him and he had failed to show any very compelling circumstances to outweigh the public interest. That decision was certified under Section 94B (he could only appeal from outside the United Kingdom). The appellant issued judicial review proceedings and on 18th February 2015 the appellant asserted that owing to his sexual orientation as a gay man he could not be returned to Jamaica. The subsequent decision from the Secretary of State dated 17th December 2015 is that which is the subject of this appeal.
4. First-tier Tribunal Judge Rowlands heard the appellant's appeal on 28 July 2016, at which the appellant was not present, and the judge dismissed his appeal on asylum grounds, humanitarian protection grounds and on human rights grounds. Permission to appeal was filed on various grounds and was granted by First-tier Tribunal Judge Baker who identified that it was arguable that in not adjourning the hearing such that the unrepresented appellant could attend the hearing, there was a material error of law.
5. Those grounds of appeal, submitted by the appellant, identified that between August 2008 and June 2012 the appellant amassed a substantial criminal record as a juvenile although no deportation action was taken against him for any of those convictions, which ranged from going equipped to steal to robbery. The index offence for which he was sentenced to two years and six months imprisonment on 20 March 2014 was for attempted robbery.
6. The grounds for permission to appeal are as follows:
(i) The appellant was not at the appeal hearing and neither was he represented. He was in detention at Harmondsworth but notified the Tribunal he felt unwell. The judge considered adjourning the hearing but concluded because he had been informed by the detention centre healthcare staff that the appellant was deemed fit to attend, the judge did not adjourn the hearing. The appellant had previously attended hearings and, on the morning of the hearing, the judge received a letter from the appellant's representative notifying the Tribunal they were no longer acting for the appellant.
It was submitted in the circumstances the judge should have adjourned the hearing so that the appellant was given an opportunity to make representations at his hearing. It was not his fault that his former representatives chose not to attend to represent the appellant and having done so at the eleventh hour gave the appellant no opportunity to seek alternative representation. It was not clear how the health staff could have concluded with only a brief examination that the appellant was fit to attend and furthermore the appellant was prescribed Paracetamol. The telephone call from the healthcare professional was not adequate and could not conclusively prove the appellant was fit to attend the hearing.
Clearly in the decision the judge took issue with the fact that the appellant had not given oral evidence and this is noted at paragraph 6 and at paragraph 24 where the judge specifically remarked that he had not been presented with any oral evidence.
(ii) The second ground was that excessive weight was given to the appellant's criminal record as a child which was an error of law. The vast majority of the appellant's crimes were committed as a juvenile.
(iii) The third ground was that there were perverse findings in relation to the issue of the appellant being gay and it was submitted that the judge had considered five letters, one from the appellant, two from his girlfriend, Ms Sheila Harriott and two from his grandmother and one from Mr Danny Hughes. It was noted by the judge that Ms Harriott described the appellant as her 'other half' and the judge regarded this to be inconsistent with the appellant to be gay but he had not considered that he was bisexual. The judge failed to consider whether it was reasonable for the appellant to have hidden the fact that he was gay for a substantial portion of his life, particularly the social stigma attached to his homosexuality.
(iv) The fourth ground was based on the premise that there was speculation on the part of the judge. The judge took the view that NGOs could support the appellant in Jamaica and he was a single, healthy adult male who would be able to try and find himself work. It was submitted there was no evidence before the judge to support that finding and no consideration of whether the appellant would be destitute on return to Jamaica.
(v) The fifth ground was on the basis of the credibility of the appellant. The judge noted that this was a late claim to be gay but had failed to take into account that the reason for the late claim was the social stigma.
Conclusions
7. I have taken into account the representations made on behalf of the appellant by Mr Bobb and by Mr Duffy. The appellant did not attend the hearing before me. I was urged by Mr Bobb to note the fact that the appellant had previously attended the hearing and had an interest in his appeal. There needed to be anxious scrutiny.
8. Mr Duffy submitted that the second and third ground of appeal were mere disagreements with the judge's findings. Paracetamol was not a significant medication and a stomach ache would not prevent him from coming to court. There was no medical evidence as to how he would have been affected. It would be for a medical practitioner to assess the appellant and as to whether he was well or not.
9. I am not persuaded that there is any error of law in this decision. In relation to ground (i) the test as to whether there should be an adjournment is on the basis of unfairness. The principles are encapsulated in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) and as the headnote identifies
'Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party's right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284'.
The judge at paragraphs [3]-[5] recorded clearly that he addressed the issue of an adjournment and turned his attention to the appellant not being in attendance at the hearing; the judge set out the circumstances and his reasoning,
[3] "Despite being in custody the appellant did not attend the hearing. I was informed that a telephone message had been received from his grandmother to say that he was ill and would not be attending. I was also notified by a healthcare professional from the detention centre that he had been examined and was deemed fit to attend court. In view of this I considered his refusal to attend court to be a deliberate attempt to avoid the proceedings and decided to proceed in his absence.
[4] I was aware that the hearing had first been listed on 2 March 2016 but did not proceed because of the volume of papers served close to the date of the hearing. It was then listed for 12 May 2016, jointly at the request of the respondent and the appellant. The hearing listed for 12 May was further adjourned because the appellant said that he had not been able to obtain a solicitor. It was therefore adjourned to 30 June to allow him to enable representation. On the morning of the hearing a letter had been received from Duncan Lewis Solicitors to say that they no longer acted.
[5] As the appellant was not present at the hearing I satisfied myself that he received all of the documentation submitted in this case which was rather lengthy bearing in mind it was a nexus case".
10. On the file there is a letter from Duncan Lewis Solicitors dated 30 June 2016, which is on the date of the hearing itself, but the content of that letter was as follows:
"We write in relation to the above matter and further to our telephone conversation this morning. We wish to inform the court that we have ceased representing the appellant since March 2016 and the appellant has been aware of our position since that time.
The appellant has been advised about our position and he understands the reason behind our decision. The appellant had also been advised to seek alternative representation.
Kindly bring this information to the attention of the court. We apologise for not bringing this to the attention of the court earlier."
11. It is clear to me that the appellant had full notice that the hearing of 12 May 2016 was adjourned following the withdrawal of Duncan Lewis Solicitors from representation as early as March 2016. It was clear that the appellant had been notified by Duncan Lewis Solicitors that he should seek alternative representation and had failed to do so. This is not an appellant unused to the judicial system. He has had at least two sets of solicitors since 2015 and is not unfamiliar with giving instructions. The appellant had had ample time, at least two months, prior to the hearing on 30th June 2016, to instruct alternative solicitors and the judge cannot be criticised for the failure of the appellant to instruct any further representation. The appellant also had ample time to submit a written statement.
12. The judge clearly took into account that there had been previous adjournments and rather than proceed in the absence of any information took note that he had been notified by a healthcare professional from the detention centre that the appellant had indeed been examined and was deemed fit to attend court. That the appellant was given Paracetamol does not indicate, as the grounds argue, that he was unfit to attend court. The judge took into account the circumstances in relation to the adjournment including the fact that a previous hearing had been adjourned for the appellant to obtain representation. The judge had been informed by the health care professional at the detention centre that the appellant was fit to attend court and did not merely exercise his own judgment as to the fitness of the appellant to attend. Indeed there is a note on file which would appear to have been faxed to the court in the form of a Healthcare Staff Report dated 30th June 2016 (the date of the hearing) confirming that the appellant had been examined and 'all was normal'. It was open to the judge to take the view that he did, particularly bearing in mind the representations made by the health care professional. That the appellant was issued with Paracetamol is not indicative one way or another of the appellant's complaint.
13. The findings of the judge were based on the written statements made by the witnesses and the interviews given by the appellant, who was clearly able to put his account and in the circumstances there can be no unfairness to the appellant. His asylum interview (July 2015) confirmed that he first became aware that he was gay when he was about 12 (AIR q14) and as he stayed with his gay uncle he thought it was 'normal' and that he discussed his sexuality with his uncle who told him to be who he wanted (AIR q17). This is far from considering it a social stigma. Indeed his uncle had advised him to be who he wanted and accepted him for what he was. The appellant in his asylum interview claims that he is homosexual - not that he is bisexual, as he now claims, and in his interview stated he had never been with a woman (AIR q27). That said, the judge at paragraph 18 to 21 made the following findings:
"18. In support of his overall claim in a letter in 2014 he had said that he had a girlfriend called Sahnella Harriott who was a UK citizen who he loved very much and that they were still together. This was not consistent with his claim to have been a gay man. Around about the same time there had also been a letter received from Miss Harriott claiming that the Appellant was her other half and that they wanted to be together so they could support each other in striving their goals. Again this letter was inconsistent with his claim to have been a gay man who had never been in a relationship with a woman.
19. It was noted that she had also written a second letter in which she says that he had come out to her as homosexual. This is of course totally inconsistent with the previous information supplied by her. There was some doubt as to the genuineness of the 2 letters bearing in mind their dissimilar signatures.
20. Consideration had also been given to 2 letters purported to come from his grandmother Sheila Hinds. In one prior to his asylum claim there was no reference to his sexuality even though he claimed to have been aware of his sexuality from the age of 12 whilst in the other, coincidentally dated after his asylum claim, she expressed the view that he was a closet gay man and that she had been informed by his girlfriend they had never engaged in sexual intercourse. She also said that she had never seen him with a girlfriend which again is totally inconsistent with the claim that he had been in a relationship with Miss Harriott. There was also extensive mention in the grandmother's letter of a relationship between him and a man called Tom, this is a person who had never been named by the Appellant as being anyone significant in his relationship. Again there was some doubt as to the genuineness of the letters bearing in mind that the handwriting was completely different in both.
21. Finally there was a letter purporting to be from Danny Hughes, a person who he said he had no contact with any longer, who had supplied a letter a month after he said that in his interview and this casts doubt on the credibility of those letters. The inconsistency of the grandmother talking about Tom and him talking about Danny also further casts doubt. Generally of these matters led the Respondent to believe that he wasn't telling the truth about his sexuality and that this was merely a last minute attempt to frustrate his removal."
14. The judge found his claim to be gay to be fundamentally undermined by the written statements and that was specifically noted. As such ground (iii), that the judge made perverse findings on the issue of the appellant being gay, is misconceived. The judge noted at paragraph 17 that the appellant first claimed to know he was gay when he was 12 but failed to make any declaration until January 2015 which was after he had been served with a deportation order and after an emergency travel documentation was agreed. Specifically the judge noted that, when in November 2010, he was asked to provide reasons why he should not be deported, despite being aware of his sexuality at the time, he made no mention of it.
15. Although the grounds maintain that there was social stigma inhibiting him, that cannot be the case as it was the appellant's case that his grandmother knew and his girlfriend knew and yet he was not in a position to claim that he was gay until January 2015. There can be no element of perversity in the judge's findings. The judge's findings are clear, cogent and well made.
16. As the judge found at [25]
'The appellant has been unable to explain why he has waited until the last minute before making his claim. He has had ample opportunity to make this statement earlier. He has, in fact made human rights claims and some representations about his deportation before and never ever mentioned his sexuality. Indeed he has in the past claimed to have been in a heterosexual relationship with a woman who, at the time called him her 'other half' and gave the impression that they were in a relationship. She now says that they were not really and that she has been truthful. She is wholly unreliable'.
And further at [27]
'The appellant's grandmother has supposedly provided 2 letters. Setting aside the issue of their authenticity, the contents of the letter do nothing to support his claim. She describes him as a 'closet gay' clearly indicating that she suspects he is gay but no more and goes on to describe his relationship with a man called Tom, someone the appellant has never mentioned. No only do the letters not support his claim they actually undermine it'.
17. The fact is that the judge found that the appellant had never mentioned his sexuality previously to 2015, and that would include whether he was homosexual or indeed bisexual. In his screening interview in June 2015 he asserted he was gay, not bisexual, and a sworn statement by his then solicitor on file dated 17th February 2015 and submitted in judicial review proceedings confirmed that the appellant claimed in February 2015 that he was homosexual not that he was bisexual. That he was bisexual was not how the claim was put to the First-tier Tribunal Judge.
18. With regard to ground (ii) it is not arguable that excessive weight was given to the appellant's criminal record as a child. It is clear that the appellant was convicted on 28 January 2014, as an adult at the age of 19 years, of attempted robbery and sentenced to two and a half years' imprisonment which he did not appeal. As a result there was an automatic deportation order made against the appellant and both the Immigration Rules and the statutory context, namely the Nationality, Immigration and Asylum Act 2002, Section 117C, make it clear that the deportation of a foreign criminal is in the public interest. The appellant was noted also to have an appalling criminal history and to be heavily involved in gang culture over the period whilst he has been in the community and indeed in custody. Specifically the judge noted that paragraph 398 of the Immigration Rules states that where the public interest requires deportation it can only be where there is an exception to that, that it can apply, and critically the judge found that there was no exception to be applied in this case. The appellant showed no compelling circumstances. Repeated caselaw has confirmed the weight to be given to the public interest in relation to the deportation of foreign criminals.
19. The challenge, at (iv), to the findings of the judge on the grounds of speculation as to whether the appellant could support and fend for himself and return to Jamaica are without any merit. It is for the appellant to prove his case and he had ample opportunity to submit written documentation and/or present himself at the hearing if he chose to do so. He did not. The judge took into account all the relevant evidence and clearly made a decision that the appellant was a young, healthy single adult male who would be able to try and find himself some work and support himself in Jamaica.
20. The judge gave a rounded assessment of the appellant's ability to be able to reintegrate in Jamaica. The appellant had had ample time to submit more than a bald assertion that he would be unable to reintegrate in Jamaica and the judge had specifically rejected his claim to be homosexual and therefore at risk on return. The appellant had lived in Jamaica and it is an English speaking country with NGOs to support his integration as indicated by the judge, and it was not unreasonable to conclude the appellant would be able, as a healthy adult to obtain work and support himself. That conclusion by the judge cannot be attacked on the grounds of speculation. It was an assessment which the judge was entitled to make.
21. Turning to ground (v), I will not repeat my observations above on the point of social stigma, save to note that the judge gave clear and detailed reasons why he rejected the credibility of the appellant and the grounds seem to argue that because the appellant was involved in gangs he was not able to reveal his sexuality. That is clearly at odds with the evidence in relation his disclosure to his girlfriend and to advance that the judge should have taken into account his involvement with gangs as a reason, in view of the evidence and the other witness statements, is not realistic and without merit.
22. The documentary evidence and history of the appellant severely and fundamentally undermined the appellant's claim and no material error of law has been established.
Notice of Decision
I find no error in the decision of First-tier Tribunal Judge Rowlands and the decision shall stand.

Signed

Helen Rimington
Upper Tribunal Judge Rimington