Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01877/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 18th August, 2016
Signed and sent for
Promulgation on 30th August, 2016
On 31st August 2016

Before

Upper Tribunal Judge Chalkley

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

[B T M]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr M Diwncyz, a Senior Home Office Presenting Officer
For the Respondent: Ms M Anderson, Clerk from Immigration Legal Advice Centre

DECISION AND REASONS

1. The appellant is the Secretary of State for the Home Department and in this determination I shall refer to her as being, "the claimant". The respondent is [BTM], who was born on [ ] 1985 and who, on his arrival in the United Kingdom ("UK"), was in possession of a South African passport and claimed to be a South African national.

Immigration history

2. On 18th June, 2004, the respondent applied for a visit visa at Harare British High Commission as a Zimbabwean national, named [TBB]. The visa was refused.

3. On 10th April, 2010, the respondent applied for a visit visa at the Pretoria BCG as a South African national, in the name [BTM]. This visa was refused on 15th April, 2010. The respondent applied on 9th January, 2015, in the same name for a visit visa at the Pretoria BCG and this was granted from 14th January until 14th July, 2015. He claims that on 30th January, 2015 he left South Africa and travelled to Doha arriving on the same day. He left on 30th January, 2015 and arrived in the United Kingdom the same day. He used what the Secretary of State described as being his "valid South African passport" to leave South Africa.

4. On 9th April, 2015, the respondent attended the asylum intake unit and claimed asylum.

5. The respondent's claim for asylum was refused by the Secretary of State in a letter dated 8th October, 2015 (the "refusal letter") and his liability to removal under Section 10 of the Immigration Act 1999 was pointed out to him.

The refusal letter

6. In Annex A to the refusal letter, the Secretary of State noted that the respondent had submitted a birth certificate and application for an identity document in the name of [TBB], but both those documents were found to be in poor condition. A trace has been made on CRS and a visa match found. The respondent was not the individual shown in the photograph. The Secretary of State believed that there were reasons, therefore, to believe that the respondent was not the individual who applied for the visa on 18th June, 2014 in Zimbabwe.

7. Additionally the respondent claimed that his family were living in the UK and had been granted asylum. The names he provided had been checked against Home Office records and his statement that these individuals had been granted asylum is internally consistent. However, despite the respondent's father being in the United Kingdom he has not submitted evidence from him confirming that he is the respondent's father and the respondent's inability to provide evidence from his claimed father undermined the respondent's claim.

8. The respondent produced a South African passport on arrival in the UK in the name of [BTM], but the respondent managed to exit South African passport control using this document and it appeared to have been used by the respondent on a number of occasions. The Secretary of State had no reason to doubt the authenticity of the document or that it was issued properly to the respondent.

9. The Secretary of State concluded at paragraph 26 of the letter that the respondent is a South African national and indicated that she intended to remove the respondent to South Africa.

Appeal to the First Tier Tribunal

10. The respondent appealed the Secretary of State's decision and his appeal was heard at North Shields by First-tier Tribunal Judge R L Head-Rapson ("the judge"). The judge appears to have heard oral evidence from the respondent and from, "members of his family in the UK", however, the judge does not set out a synopsis of the evidence, nor does she indicate which members of the respondent's family in the UK gave oral evidence. Instead, the judge believed that it was necessary to determine whether the respondent was a Zimbabwean national or a South African national. The judge does not appear to have considered the possibility that the respondent might have both nationalities. The judge found the respondent to be a credible witness. At paragraphs 36 and 37 the judge said this:-
"36. The [respondent] was consistent in his witness statement and in oral evidence. Whilst I acknowledge he obtained a South African passport by illegal means and did not claim asylum upon entering the UK, I accepted his answers that he feared being immediately returned. I note that he stated that he was a South African to the UK immigration officials, I also acknowledge that he was terrified of being returned to Zimbabwe.
37. Within the documentation provided by the [respondent] there is DNA evidence which proves that the [respondent] is the son of his father. This evidence was not challenged by the [claimant]. I accept this DNA evidence and I therefore accept that the [respondent] is the son of his father who is a Zimbabwean national who successfully claimed asylum in the United Kingdom on the basis of his political opinion."
11. The judge allowed the respondent's appeal, having found that he was a Zimbabwean citizen.

The claimant's challenges to the determination

12. The claimant challenges the judge's decision and asserts that he erred in law. It has always been the intention of the Secretary of State to remove the respondent to South Africa and the judge erred, therefore, in considering the risk on the respondent's return to Zimbabwe.

13. The respondent's claimed fear of return to South Africa was stated to be xenophobia and threats and violence from a Zulu boy, but the judge only made a single finding in the determination, namely that the respondent is South African based on the DNA evidence linking him to his father.

14. The judge made no finding as to persecutory risks applicable to the respondent. The judge implies that the sole risk to the respondent in Zimbabwe is because of his father's political activities and the political profile attached to his family name. The judge found the respondent to be a Zimbabwean national, but made no findings as to the persecutory risk factors applicable to the respondent. The judge did not explain why there should be any risk to the respondent if he is the son of his father some thirteen years later when the respondent himself has no political profile or links to his father's trade union activity. There was no consideration of the severity of the risks or whether internal relocation would be appropriate.

15. The Secretary of State also criticised the judge for not considering the risk factors in the country guidance case of CM (EM country guidance; disclosure) Zimbabwe [2013] UKUT 59 (IAC) and the judge has made no finding on the possible internal relocation to Bulawayo. Finally, the judge is satisfied by DNA evidence as to the respondent's paternity, but failed to recognise that a finding on paternity is not in itself evidence that the respondent does not hold South African nationality, either alone or in addition to Zimbabwean nationality.

The hearing before me

16. At the hearing before me, Ms Anderson suggested that the respondent gave a satisfactory explanation to the judge as to why he had arrived in the United Kingdom claiming to be a South African national and had given a satisfactory explanation as to why he could not now be returned either to South Africa or to Zimbabwe. Mr Diwncyz pointed out that there was no intention to remove the respondent to Zimbabwe; he had maintained that he was a South African citizen; he had presented a South African passport, and he was accepted by the claimant as being South African. The judge made a finding in respect of the DNA test based on the respondent's paternity. The judge appeared to suggest at paragraph 37 of the determination that the Secretary of State accepted this evidence. The fact that the Secretary of State did not challenge evidence does not necessarily mean that the Secretary of State accepted it.

17. There is no question of the respondent being removed to Zimbabwe, asserted Mr Diwncyz.

18. I adjourned the hearing briefly in order that the representatives might have an opportunity of discussing the matter between themselves and to enable the Secretary of State to obtain a copy of the Tribunal's decision in KF (Removal directions and statelessness) Iran [2005] UKIAT 00109 on which the presenting officer relied.

19. On resuming the hearing I was told that there was no agreement between the representatives'. Ms Anderson asked me to note that the judge had made a clear finding that the respondent was credible. She accepted, however, that the judge had made an error of law in failing to apply country guidance and in failing to demonstrate that the judge had done so.

20. I reserved my determination.

My consideration of the matters and conclusion.

21. I believe that the judge has erred in law and that the error is material in this determination.

22. The claimant accepted the respondent's nationality as being South African, on the basis that the respondent claimed to be a South African on entering the United Kingdom and was in possession of what appeared to the Home Office to be an authentic South African passport in his identity. The respondent had claimed to have obtained these documents illegally, but had not adduced any evidence to substantiate that claim other than his mere assertion. The judge does not appear to have considered this, nor the fact that the respondent used that passport to pass through passport control in South Africa and appeared to have used the passport on a number of occasions. The judge appears to have simply accepted what the respondent said, without considering all the evidence. The judge accepted the paternal DNA evidence for establishing that the respondent is the son of a Zimbabwean national and assumes on that basis, that the respondent does not hold South African nationality. In fact, the judge gave no consideration as to whether or not the respondent might hold South African nationality in addition to or instead of Zimbabwean nationality.

23. Having concluded that the respondent is a Zimbabwean national, because his father was, the judge failed to deal with the respondent's claimed fear of return to South Africa and instead allowed the respondent's appeal. It is unclear on what basis the appeal is allowed, but in paragraph 25 the judge says that the respondent fears return to Zimbabwe, because of his father's political activities and the political profile which was attached to the respondent's name. The judge has made no finding as to the persecutory risk factors and does not explain why, some thirteen years after the respondent's father left Zimbabwe, the respondent would be at any risk, since he has no personal political profile or other links to his father's trade union activity. The judge has made no reference to the country guidance case of CM and has made no findings on possible internal relocation to Bulawayo.

24. The judge does not demonstrate that in considering the respondent's claim, the judge has considered the background material in order to put the claim into context and to better advise the judge in assessing risk on return.

25. I have concluded that the determination cannot stand. I set aside the determination of the First Tier Judge. Mr Diwncyz suggested that the matter should remain in the Upper Tribunal, but in fairness to the respondent I believe that the only fair way in which the appeal can be disposed of is for it to be reheard de novo by the First-tier Tribunal by a judge other that First Tier Tribunal Judge R L Head-Rapson. Were it to be retained in the Upper Tribunal it may be many months before the matter could be relisted before me.

Notice of Decision

I set aside the determination of First-tier Tribunal Judge R L Head-Rapson. This appeal should be heard afresh by a First-tier Tribunal Judge other than Judge R L Head-Rapson. I respectfully suggest that two and a half hours be allowed for the hearing of the appeal. The respondent has previously indicated through his representatives that he does not require an interpreter.

Richard Chalkley
Upper Tribunal Judge Chalkley