(Immigration and Asylum Chamber) Appeal Number: pa/01356/2017
THE IMMIGRATION ACTS
Heard at Bennett House, Stoke-on-Trent
Decision & Reasons Promulgated
On 10th November 2017
On 20th November 2017
DEPUTY UPPER TRIBUNAL JUDGE JUSS
mr Bikramjit Singh
(ANONYMITY DIRECTION not made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: No Legal Representation
For the Respondent: Mr C Bates, Senior HOPO
DECISION AND REASONS
1. This is an appeal against the determination of First-tier Tribunal Judge Wilsher, promulgated 26th April 2017, following a hearing at Taylor House on 9th March 2017. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
2. The Appellant is a male, a citizen of India, who was born on 15th May 1974. He arrived in the United Kingdom in June 2003, clandestinely, and he claimed asylum the following day. There was a Dublin transfer request to Germany thereafter. The claim was not decided, but the Appellant absconded until 2010, when his lawyer had made a legacy application. He was invited for interview. This did not take place. He was refused on non-compliance grounds on 11th October 2015. He appealed this and succeeded on procedural grounds on 3rd March 2015. He was interviewed on 17th April 2015. His asylum claim was refused on 26th January 2017. Judge Richard heard the appeal against that refusal decision on 9th March 2017.
The Judge's Findings
3. The judge succinctly summarised the Appellant's claim. This was that the Appellant lived in a village in India. He had been the supporter of a local political party, by the name of Akali Dal, but had paid no role in the party of any significance and did not have any particular knowledge of its policies. In the summer of 2001, he had been assaulted by a member of the rival, Congolese Party, and taken to hospital. The judge found no reason to doubt this claim (see paragraph 5). However, he went on to then say that there was nothing in the evidence before him to suggest that the Appellant would be of any continuing interest to political rivals in India now. His oral evidence was that the police took him to the hospital and ensured that he received treatment. He was not charged with any offence. He had no outstanding warrant for his arrest. The incident "was a random act of violence by a political thug" (paragraph 5). It was held that, "the evidence therefore does not disclose anything like persecution as required by the relevant case law..." (paragraph 5).
4. The judge then went on to give consideration of the Appellant's Article 8 claim. He made two findings. First, that the Appellant could not succeed under paragraph 276ADE which contains the essential thrust of the Article 8 claims on a domestic basis, because although the Appellant had been in the UK for fourteen years, half of this was entirely unauthorised, and the relevant Rule requires that the Appellant of his age should have spent twenty years in the UK, which he had not done, in order to meet the Rules. Second, that there were no "very significant obstacles to the applicant's integration into the country to which he would have to go", as an alternative basis to the requirements in paragraph 276ADE. He had not lost all ties with his family in India. He had family members there. There was no reason for him to have lost contact with anyone in India. Moreover, "modern communications devices and the internet" were available to the Appellant. The Appellant claimed that due to lack of money he had not been able to speak with anybody in India, but the judge rejected this given the low cost of communications technology (see paragraph 6).
5. In his decision, the judge went on to hold that the Appellant had been living with various people in Leicester, "but there is nothing in this material to suggest a private life which is of such depth and importance to the Appellant that there is any possibility that his removal would be disproportionate" (paragraph 7).
6. The appeal was dismissed.
The Grounds of Application
7. The grounds of application were wide ranging, being drafted by Charles Simmons Solicitors, on the Appellant's behalf, beginning with the fact that the judge was wrong to have rejected the asylum claim, on the basis that the judge overlooked the fact that the Appellant's attackers were never caught or charged (see paragraph 4), and ending with a complaint that the judge had misconstrued the assessment of Article 8 by setting too high a threshold for the Appellant to satisfy.
8. On 31st August 2017, permission to appeal was granted on the basis that the judge had arguably failed to give proper consideration to the Appellant's claim to Article 8, as there was no reference to the burden and standard of proof regarding Article 8 and no indication in the body of the decision that the judge had applied the "Razgar" principles.
9. On 24th September 2017, a Rule 24 response was entered by the Respondent Secretary of State. This was to the following effect. First, the judge clearly set out the standard of proof at paragraph 4. There was nothing in the judge's assessment to indicate a high standard of proof had been applied to Article 8. Second, the Appellant relied purely on a private life claim under Article 8 but at paragraph 6 of the determination the judge comprehensively set out why the Appellant could not succeed under paragraph 276ADE(vi). Third, at paragraph 7, the judge clearly found that the removal was not disproportionate as there was insufficient evidence to warrant allowing the appeal outside the Immigration Rules.
10. At the hearing before me on 10th November 2017, there was no attendance by the Appellant's legal representatives. Charles Simmons Solicitors, had sent in a Bundle dated 1 November 2017 the cover page of which stated that, "Our client will provide oral evidence at the Hearing and we kindly request that a Punjabi interpreter be made available for our client's assistance." However, this was an 'error of law' Hearing, and not one where the Appellant was going to be called upon to give 'oral evidence'. No Interpreter was available at the Hearing. At the outset, therefore, I asked the Appellant if he wished to say anything with respect to the 'error of law' issue before the Tribunal, and he said that, "I have nothing to say", in English. I noted that at the hearing before Judge Wilsher, on 9th March 2017, the Appellant had appeared in person only, and there was a Punjabi interpreter available for the Appellant's use, and utilised by Judge Wilsher (see paragraph 3), but that was the occasion when the Appellant had to give evidence, and his credibility assessment had to be made by the judge. The present hearing was on a 'error of law' basis only. The solicitors had written in to say that the Appellant would give 'oral evidence' which was not the function of this Tribunal to entertain at this stage (although it might be at a later stage if appropriate).
11. Given that this was a case, Mr Bates, appearing as Senior Home Office Presenting Officer, on behalf of the Respondent, agreed that he would confine himself solely to the written grounds of application, by Charles Simmons Solicitors, and the determination of those grounds, by the Tribunal, granting permission.
12. On this basis, Mr Bates made the following submissions. First, the statement that the judge was wrong to have rejected the Appellant's protection claim on the basis that he could seek police protection, was unsound given that the Appellant's attackers were never caught or charged. Mr Bates submitted that there was a functioning police force in India, and in the Punjab, to which the Appellant could return to. He had, after all, been taken to the hospital by the police authorities when he alleged that he had been beaten up by a member of the Congress Party. In any event, however, permission had not been granted on this basis by the Tribunal.
13. Second, the judge was wrong to have concluded that there was no significant reintegration issues for the Appellant, because he had built up significant ties in the UK over the period of his residence here. However, Mr Bates submitted that the judge had expressly addressed this question and had concluded that the Appellant had been born and bred in India, could speak the language there, had not lost all ties with his family, and had been in communication with them, so that he could reintegrate back into the country of his origin (see paragraph 6). Third, the judge had erred in his assessment that the Appellant's circumstances were unexceptional. Mr Bates submitted that the judge had not concluded that the Appellant did not have a private life in the UK, but had only concluded that, given all the circumstances highlighted at paragraphs 5 to 7 of the determination, that there were no exceptional circumstances that he could rely upon. The suggestion that it was in any event unreasonable to expect the Appellant to return after a period of fourteen years in the UK was not, without further basis in fact, sufficient for an Appellant to win the appeal.
14. Finally, as far as Article 8 was concerned, it was not the case that the judge had looked at the "Razgar" principles, because, he had concluded that Article 8 had been engaged, but that the decision was in accordance with the law and it was legitimate, as well as proportionate, for the Secretary of State to conclude as she did, because "there is nothing in this material to suggest a private life which is of such depth and importance to the Appellant that there is any possibility that his removal would be disproportionate" (see paragraph 7). The Appellant was not financially independent. He was not a person who had lost the use of his Punjabi language. He had not fully integrated into UK life here. No one had attended to give evidence on his behalf before Judge Wilshire to this effect.
No Error of Law
15. 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 (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. My reasons are as follows.
16. First, considering the matter, as I have done, on the basis of simply the written Grounds of Appeal, and the grant of permission by the First-tier Tribunal on 31st August 2017, it is plain that the strongest part of this case was the Appellant's private life rights under Article 8, and whether the judge below had erred in law. There is nothing in the asylum claim because first, it was a long time ago, and secondly the claim to protection was plainly available, and not least given that it was the police authorities that took the Appellant to the hospital, and there was no further ill-treatment of the Appellant, no offence with which he was charged, and no outstanding warrant for his arrest. As far as the Article 8 claim is concerned, it was not the case that the judge did not apply the "Razgar" principles, because, the judge concluded that the Appellant's Article 8 rights were engaged, but that the decision was not one that was not legitimate, and not proportionate (see paragraph 7). There was no basis of allowing the appeal outside the Immigration Rules.
17. Second, as far as the consideration of the Appellant's claim was concerned within the Immigration Rules, the judge gave ample and fulsome reasons for why the Appellant could not succeed, having absconded for a period of seven years after his arrival in 2003, and not being able to demonstrate that there were "very significant obstacles" to the Appellant's integration back into the country of his origin.
18. In respect of both the reasons above, there is nothing that the Appellant said, or could have said, which either bettered the grounds of application before this Tribunal, or referred to matters within the judge's determination, such that it could be said that there had been an error of law. The judge was properly entitled to come to the conclusion that he did. In fact, the judge gave the Appellant the benefit of the doubt, in accepting that the Appellant's "account was broadly consistent and I found no reason to doubt that this incident took place" (paragraph 5) when referring to his ill-treatment as a member of the Akali Dal Party, by a thug belonging to a rival party. Ultimately, the Appellant did not succeed both as a matter of fact or as a matter of law and the judge was correct to come to that conclusion.
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.
Deputy Upper Tribunal Judge Juss 17th November 2017