Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03290/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 August 2016
On 8 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M R H
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Respondent: None
For the Appellant: Mr Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Manyarara ("the FTTJ") promulgated on 26 May 2016, in which the FTTJ allowed an appeal on Article 8 grounds.

2. An anonymity direction was made in the First-tier Tribunal and I maintain that direction.

3. Notwithstanding this appeal is being pursued by the Secretary of State, I maintain the descriptions of the parties as they were in the First-tier Tribunal where the Secretary of State was the respondent.

Background

4. The appellant claimed to be a citizen of Syria born on 2 January 1999. His age and nationality were not accepted: the respondent refused his asylum claim and made directions for his removal to Egypt. The appellant's appeal against removal was dismissed on asylum grounds and allowed on human rights grounds (Article 8) outside the Immigration Rules.

5. The respondent was granted permission to appeal to this tribunal in the following terms:

"..

2. The grounds of application state that the judge came to his decision because of there being no evidence of the appellant's family being traced. The grounds state that the judge should have followed the case of TN and MA (Afghanistan) 2015 UKSC40 which states that a breach of the family tracing duty in Regulation 6 of the Asylum Seekers (reception conditions) Regulations 2005 does not affect the rule in Ravichandran requiring applications to be decided on the facts existing at the decision. The Directive makes no mention of family tracing as part of the process for determining the application. It follows that to allow the appeal by reason of the respondent's breach of her tracing obligation must be an error of law.

3. The reason the judge gave for allowing the appeal on human rights grounds was that the respondent had not attempted to trace the appellant's family. Based on the country guidance case law this is not a sufficient reason for the appeal under Article 8 to be allowed.

4. There are arguable errors of law in the judge's decision."

6. Hence the matter comes before me.

The Hearing

7. The appellant was not present at the hearing and was not represented. He did not request an adjournment. As the appellant is a minor, I asked the clerk to telephone the solicitors on the tribunal record (who had represented the appellant before the FTTJ), Messrs Wai Leung. She duly did so and reported to me that they had written to the Upper Tribunal two weeks earlier to advise that they were no longer acting for the appellant; they would not be attending the hearing. The appellant had been sent a notice of hearing by post and I was satisfied therefore that the notice had been validly served. No reason has been given for the absence of the appellant. No adjournment has been requested. There was no indication that, were I to adjourn the hearing, the appellant would attend on another occasion. The appellant had been warned in the notice of hearing that, if a party or his representative did not attend the hearing, the Tribunal may determine the appeal in the absence of that party. I therefore proceeded with the hearing because it was in the interests of justice to do so.

8. I heard the oral submissions for the respondent and, at the end of the hearing, reserved my decision on all issues.

Submissions

9. Mr Kotas relied on the guidance in TN and MA (Afghanistan); AA (Afghanistan) [2015] UKSC 40 to the demonstrate that the FTTJ could not use the failure of the respondent to trace as a way of rectifying past wrongdoing. He submitted the FTTJ had erred in law in identifying the failure to trace as determinative of the Article 8 claim. He referred to paragraph 72 of TN and MA: "it is not proper for a court to require the respondent to grant unconditional leave to an appellant who would not be entitled to such relief under current policy (or have a current right to remain in the UK on other grounds, such as article 8), as a form of relief for an earlier error or breach of obligation". He submitted that the FTTJ had failed to follow this guidance, albeit in the context of an article 8 claim, rather than an asylum claim.

10. He referred to the reasons for refusal letter which indicated, at paragraph 75, the respondent's attempts to locate the appellant's family in Egypt (notwithstanding he claimed to be Syrian). He submitted that, faced with that factual matrix, the burden was on the appellant. As in TN and MA (paragraph 55) the family of the appellant was unlikely to cooperate with the respondent. The FTTJ failed to appreciate that, the appellant's case having been wholly rejected, any attempt by the respondent to attempt to trace his family in Egypt would be futile. The FTTJ had erred in taking, in isolation, the failure of the respondent to find the appellant's family in Egypt; she should also have taken into account the credibility findings (TN and MA).

11. Mr Kotas also submitted that there was no breach of the tracing duty because the appellant had withheld information (AA (Afghanistan) [2013] EWCA Civ 1625).

Discussion

12. The FTTJ found the appellant was not a Syrian national and that he was aged 17 years and 5 months at the date of hearing (9 May 2016). Those findings are not challenged before me. Nor is there any challenge by the appellant to the credibility findings. The appellant does not challenge the dismissal of his appeal on asylum grounds, ie that his removal to Egypt would not place the UK in breach of the Refugee Convention [50]. Finally, the appellant does not challenge the FTTJ's dismissal of his Article 8 claim under the Immigration Rules.

13. The FTTJ rightly refers to the need to identify "compelling circumstances" for consideration of the Article 8 claim outside the Rules (paragraph 55). The respondent does not challenge the FTTJ's consideration of the appeal on Article 8 grounds outside the Rules (SS (Congo) and Ors [2015] EWCA Civ 387 and Sunassee [2015] EWHC 1604). Her challenge is the method of assessment of proportionality by the FTTJ.

14. The FTTJ notes the appellant was a minor at the date of hearing and that the appeal concerned his return to Egypt (paragraph 58). Extracts from Council Directive 2003/9/EC (the "Reception Directive") are cited as is regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. This requires the respondent to "endeavour to trace the members of the minor's family as soon as possible after the minor makes his claim for asylum". An unaccompanied minor is one who is taken into the care of a responsible adult or until he reaches the age of 18 whichever is earlier. The appellant was aged 17 years and 5 months at the date of hearing. The FTTJ states [61]:

"I have found that the appellant is still a minor and will continue to be a minor until he reaches the age of 18. I find that there is no evidence before me to show what reception arrangements have been made in relation to the appellant's removal to Egypt. This is relevant as a direct result of the appellant's age. The appellant has been under the care of Kent Social Services and was not leading an independent life prior to his arrival in the United Kingdom. I therefore find that removal of the appellant at this time would be disproportionate. I hold that there is a compelling case for further leave to be granted outside of the Rules as a result of the appellant's age and the absence of any evidence of his family having been traced.

62. In so finding, I have considered the five steps propounded by Lord Bingham in Razgar v SSHD [2004] 2 AC 368 (which I do not reiterate), the last of which is material: whether any interference is proportionate to the legitimate public end sought to be achieved."

15. The FTTJ then goes on to refer to the public interest considerations in s117A-D of the Nationality, Immigration and Asylum Act 2002, noting there is no distinction between adult and child migrants (Miah (s117B NIAA 2002 - children) [2016] UKUT 131 (IAC)). Further, at paragraph 64, it is stated that, with regard to the factors in s117B(1)-(5):

"They are not however an exhaustive list and all other relevant factors must be weighed in the balance. These may include age, vulnerability and immaturity. The juridical status of the relevant Home Office 'Immigration Directorate Instructions' must be appreciated. While these are subservient to primary and secondary legislation and the Immigration Rules, they rank as relevant considerations, frame in flexible terms, to be taken into account in every case where they apply.

65. Sections 117B(4) and (5) show that little weight should be given to a private life established by a person who is in the United Kingdom unlawfully, or at a time when his immigration status is precarious. A person's immigration status is precarious if he is in the United Kingdom with limited leave to enter or remain but without settled or permanent status. I bear in mind the following cases of Forman (ss 117A-C considerations) [2015] UKUT 00412 (IAC) and Bossade that these are not the only considerations. I however find the decision to be disproportionate in all the circumstances of this case."

16. Whilst the order in which the FTTJ addressed the matters arising in relation to the Article 8 claim is somewhat confusing, the findings are clear.

17. The respondent relies in this appeal on the guidance in TN and MA (Afghanistan) and other judgments. However, these concern the impact of the Reception Directive and the 2005 Regulations on asylum appeals. The appeal before me arises from the FTTJ's analysis of proportionality as regards his Article 8 claim. Furthermore, contrary to the submissions, the FTTJ did not make findings that the respondent had breached her tracing duty. There is no suggestion of this in the FTTJ's decision which resonates with the terms of the refusal letter to the effect that "an initial family tracing search has been started in Egypt to try and locate [the appellant's] family.". The appellant was asked in the refusal letter to provide further relevant information regarding his family and place of birth. Quite properly, therefore, the FTTJ does not allude to any failure of the respondent under the Directive or 2005 Regulations.

18. There is no challenge by the respondent to the FTTJ's finding that the appellant was a minor at the date of hearing and promulgation of the decision. The FTTJ was entitled to take into account, in the absence of any indication to the contrary, that the appellant would be removed to Egypt as a minor and that there was no evidence "to show what reception arrangements have been made in relation to the appellant's removal to Egypt". This is a relevant factor in assessing the degree of interference with the appellant's right to a private life as a result of the respondent's decision. The lack of reception arrangements for the appellant as a minor is not an issue which is capable of being addressed by reference to Paragraph 276ADE of the Immigration Rules.

19. The FTTJ's decision on proportionality was not based solely on the lack of evidence of reception arrangements. The FTTJ also took into account the public interest factors in the 2002 Act, the appellant's age, vulnerability, immaturity and the respondent's IDI. There is no challenge to the inclusion of these factors in the FTTJ's assessment. Whilst the FTTJ does not specifically refer to this, it is also relevant that the respondent's decision had been based on an erroneous assessment of the appellant's age; the FTTJ accepted the most recent age assessment by social services and found the appellant was aged only 17 years and 5 months at the date of hearing, whereas the respondent had relied on an earlier age assessment putting his age as one year older. Thus the respondent's decision to remove was based on an inaccurate assessment of the appellant's age: the decision to remove was taken a year earlier than should have been the case, according to the respondent's policy on the treatment of unaccompanied asylum seeking children. The appellant should not be disadvantaged by an earlier breach of policy by the respondent (SL (Vietnam) v SSHD [2010] EWCA Civ 225)).

20. For these reasons, I am satisfied that the decision of the FTTJ does not contain a material error of law. The respondent's reasons for appealing are misconceived and amount to a disagreement with the findings of the FTTJ.

Decision

21. The making of the decision of the First-tier Tribunal did not involve a material error of law.

22. The decision of the FTTJ is upheld.

Signed A M Black
Deputy Upper Tribunal Judge A M Black Date 8 August 2016

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 their 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.

Fee Award

The FTTJ made no fee award because no fee was paid or payable. That decision also stands.

Signed A M Black
Deputy Upper Tribunal Judge A M Black Date 8 August 2016