Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02163/2019

THE IMMIGRATION ACTS

Heard at Manchester CJC
Decision & Reasons Promulgated
On 12 July 2019
On 08 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE O'RYAN

Between

l K
(anonymity direction made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Semega-Janneh, Counsel, instructed by R&A Solicitors
For the Respondent: Mr Tan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Malawi, appeals against the decision of Judge of the First-tier Tribunal Thorne dated 8 May 2019 in which the judge dismissed the Appellant's appeal against the Respondent's decision of 21 February 2019 refusing the Appellant's protection and human rights claim.

2. The Appellant, born in May 2000, was aged 18 at the time of the hearing before the judge on 15 April 2019. He asserted that in 2008 when he would have been aged around 8 he had been brought to the UK by a maternal uncle, CK, with whom he had been living in Malawi for a period of time, due to the Appellant having witnessed domestic violence in his own family's home between his mother and biological father. The reasons for CK bringing the Appellant to the UK are not wholly clear. The Appellant asserted that he remained living with CK in the UK for about a year before CK returned to Malawi leaving the Appellant with CK's friend, 'uncle' PM (see eg SEF, q93). That situation was said to have pertained until approximately 2015. PM thereafter disappeared from the home, allegedly leaving the Appellant in a house in the Manchester area for up to four weeks. The Appellant feared being evicted by a landlord who was enquiring about what was going on within the household and decided to leave the house. It is said that the Appellant thereafter spent a prolonged period of time homeless on the streets of Manchester, and developed a drink problem. It was also said that in or around 2017 the Appellant met with his biological mother, GK, by happenstance in the Manchester area. The Appellant thereafter resumed living with GK, who has leave to remain in the United Kingdom on the basis of being a spouse of a British national, LE.

3. The Appellant claimed asylum on or around February 2018, when he was still a minor. Screening and SEF interviews took place. The Appellant did not give a clear reason as to why he feared serious harm in Malawi. Indeed, he appeared to accept that there was no-one from whom he feared serious harm. However he stated that he wished to remain in the United Kingdom with CK and her husband LE (the Appellant's stepfather); that he had little or no contact with any person in Malawi; and that he would have no means of supporting himself if he were to be returned to Malawi.

4. The Respondent refused the protection and human rights claim in the decision of 21 February 2019, at which time the Appellant was 18. The Respondent found that no properly articulated claim to fear serious harm in Malawi had been expressed by the Appellant. In considering the Appellant's private life, the Respondent considered paragraph 276ADE(1)(vi) of the immigration rules, and noted that the Appellant was by then over 18, but that there were no very significant obstacles to his integration into Malawi (paragraphs 100-101). The Respondent also considered at paragraphs 95 to 99 whether the Appellant met the requirements of paragraph 276ADE(1)(v) of the rules; the Respondent finding that whilst the Appellant was by then aged 18 and under 25, he had failed to provide sufficient evidence that he had lived continuously in the UK for half his life.

5. The Appellant appealed against that decision and the appeal came before the judge on 15 April 2019. The Appellant was represented by Mr Semega-Janneh who also appears before me today. The Appellant gave evidence before the judge as did his mother and stepfather. The judge found, taking his evidence at its highest at paragraph 44 of the decision, that: " ...the only reasons that he had says he does not want to return to Malawi is that he prefers to stay in the UK with his mother and study and work here. Also he had heard that there were floods in Malawi. He does not claim to fear anyone or anything in his home country".

6. In relation to the Appellant's private life the judge stated as follows at paragraph 58 of the decision:

"I conclude that A does not succeed under paragraph 276ADE of the Rules because he has not been resident in the UK for 20 years and is over the age of 18 years of age. I also conclude (bearing in mind my above findings) that he has not established that there would be very significant obstacles to his integration into his country of origin. There is inadequate evidence that he suffers from ill-health now and he speaks the languages of Malawi, has family there who I do not accept would not be able to accommodate and assist him in the short term before he finds employment".

7. The judge then also proceeded to consider the Appellant's Article 8 rights outside of the Immigration Rules. He directed himself at paragraph 79 as to the application of Part 5A of the Nationality, Immigration and Asylum Act 2002 and found at paragraphs 80 and 81 that the Appellant's removal from the United Kingdom would not amount to a disproportionate interference in his Article 8 private and family life rights.

8. The Appellant sought permission to appeal to the Upper Tribunal in grounds dated 17 May 2019. The grounds of appeal do not with respect identify with sufficient clarity what alleged errors of law were said to be contained within the judge's decision. It was argued that the judge had erred in law in failing to consider that the Appellant had mental health problems and other associated problems during the hearing. It was said that the judge had failed to take proper account of a report from a social worker. It also appears to be argued that the judge erred procedurally in failing to take steps to ensure that the Appellant could properly participate in the proceedings, as the social worker's report disclosed that he ought to be treated as a vulnerable witness.

9. Paragraph 2 of the grounds of appeal also appears to argue that the judge had erred in law in failing to take into account the extent of the bond between the Appellant and his mother and had failed to give adequate weight to the extent of the family life which existed between them, notwithstanding the fact that the Appellant was now an adult.

10. Permission to appeal was granted by Judge of the First-tier Tribunal Loke on 5 June 2019 saying briefly that the Appellant's grounds were arguable and that permission was granted on all grounds.

11. I have heard from Mr Semega-Janneh today regarding the procedural error point and the weight that should have been attached to the social work report. The report is in fact a 'Children & Families Assessment' prepared by Arike Sanni of Salford City Council and is dated 14 March 2018. It sets out that the Appellant's circumstances were brought to the attention of the Social Services by the Respondent following the screening interview, the referral being made on the basis that it was alleged that the Appellant had stated that he had been present in the UK since 2008 but had never been in education or been registered with a GP.

12. With respect, my attention was not brought to any passage within the social work report which demonstrated that the Appellant was, as alleged by Mr Semega-Janneh, potentially unable to participate in the proceedings. It was argued on the Appellant's behalf that the judge had erred procedurally in failing to undertake at the outset of the hearing an assessment as to whether the Appellant was able to give evidence. I have read the social work report and I cannot discern anything within in which would support the proposition that the Appellant might be unable to give evidence. Mr Semega-Janneh was not able to state clearly what specific steps the judge ought to have taken in order to have facilitated the Appellant's participation in the proceedings. There is nothing on the face of the decision which suggested that the Appellant, who was recorded as having given oral evidence in the appeal, was at any disadvantage or under any distress during the proceedings. I reject the Appellant's proposition that the judge erred in law either procedurally or substantively in failing to have regard to the social work report, which the judge referred to clearly in any event at paragraph 18 in his decision.

13. Further, the Appellant's other ground, that the judge erred in law in his assessment of the weight to be attached to the bond between the Appellant and his mother merely has the appearance of a disagreement with the judge's decision.

14. However, I raised with the parties a separate matter not raised in the Appellant's grounds of appeal, that being that the judge at paragraph 58 of the decision appears to direct himself in law only as to the provisions under paragraph 276ADE(1)(vi) of the rules, that being whether an applicant aged 18 or over and may face very significant obstacles to his integration into his country of origin. The Appellant is of course 18, but he is also under 25. On his own account he had also spent half his life in the United Kingdom, thus, although the Respondent had directed his mind to the question of whether the Appellant had satisfied the requirements of paragraph 276ADE(1)(v), the judge did not. This seems to me to be an error of law.

15. Mr Tan initially argued that the requirements of paragraph 276ADE(1)(v) could not apply to the Appellant, as the requirements of subparagraph (v), including the requirement to be aged 18 or over, must be satisfied, according to subparagraph (1), at that date of application. However, there was never any requirement for the Appellant to have made a valid application under paragraph 276ADE(1), as he had made a protection claim (see paragraph 276AO(i)). Thus, in the absence of any requirement to make a valid application under 276ADE(1), the Appellant cannot be expected to have satisfied the requirements of the rule at the date of application. However, he does appear to have satisfied the age requirement at the date of decision. I further note that the Respondent was not troubled by the age of the Appellant at the date of his protection claim when considering the Appellant's position under paragraph 276ADE(1)(v) at paragraphs 95 to 99 of the decision.

16. Given the very specific facts of the case, that the Appellant is alleged to have spent half his life in the United Kingdom, and was aged between 18 and 25, and given the fact that that was a matter clearly considered by the Respondent, I am of the view that the judge's error, in not considering that issue, was Robinson obvious.

17. I have considered whether, even if the judge had directed his mind to the provisions of paragraph 276ADE(1)(v), there was any likelihood at all of the judge having been satisfied on the evidence before him that the Appellant could make out his case that he had been present in the United Kingdom for half his life. Certainly, there was little documentary evidence supporting that proposition. However, the Appellant asserted that he had been present from 2008, as did his mother who also gave oral evidence. There is no finding of fact made by the judge as to when the Appellant arrived in the United Kingdom, or as to whether the Appellant and/or his mother ought to be believed on that specific issue, or in their evidence generally. I find that the judge's failure to consider the provisions of paragraph 276ADE(1)(v) was a material error. Whilst there may be only a slender chance of the Appellant being able to satisfy to the balance of probabilities that he had been physically present in the United Kingdom since 2008, I cannot exclude it as a possibility if that matter were to be properly adjudicated upon.

18. There are a number of issues which might speak to the credibility of both the Appellant and his mother. Whether or not the Appellant had been registered with a GP in the United Kingdom was discussed in the social work report. Some concern had been expressed by social workers that the Appellant had not since his alleged arrival in the United Kingdom been in education or had seen a GP, even after he assumed residence with his mother in or around 2017. His mother came in for some criticism by the social services for her failure to register the Appellant with a GP and to ensure that he entered into education. There is a reference at the end of the social work report however that he might have been registered with a GP after all. There was also a copy of an application for entry clearance on the Tribunal file (seemingly provided by the Respondent at the hearing before the judge) in another person's name, but where the name and date of birth of that applicant's mother appear to be those of GK. There is no discussion of this evidence in the judge's decision. It seems relevant, and requires some scrutiny.

19. It is therefore uncertain on those facts what the Appellant's history in the United Kingdom has been. I am of the view that whether or not the Appellant met the requirements of 276ADE(1)(v) is a matter requiring determination by the Immigration and Asylum Chamber. If he does satisfy that Rule then this would be a very significant matter in the assessment of the proportionality of the decision to refuse his human rights claim.

I find that the judge erred in law in failing to direct his mind as to 276ADE(1)(v), and I find that it was a material error, as I cannot exclude the possibility that the Appellant might have persuaded the judge that he had been present in the United Kingdom since 2008.

Notice of Decision

I find that the making of the decision involved the making of a material error of law.

I set aside the judge's decision.

Having set the matter aside I remit the appeal to the First-tier Tribunal for rehearing de novo, on the basis that the extent of the findings on fact that would be necessary in this appeal are such that the relevant Practice Direction is satisfied.

Signed: Date: 1.8.19

Rory O'Ryan

Deputy Upper Tribunal Judge O'Ryan

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 1.8.19
Rory O'Ryan

Deputy Upper Tribunal Judge O'Ryan