PA/12756/2018

• Status of case: Unreported
• Hearing date: 17 May 2022
• Promulgation date: 14 Jul 2022
• Publication date: 6 Dec 2023
• Last updated on: 6 Dec 2023

The decision

IAC-AH-sAR-V6

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/12756/2018


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 19 January and 17 May 2022
On the 14 July 2022




Before

UPPER TRIBUNAL JUDGE McWILLIAM
UPPER TRIBUNAL JUDGE CANAVAN


Between

hA
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Anonymity

Pursuant to rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

Representation:

For the Appellant: Ms A Smith, instructed by JCWI
For the Respondent: Mr D Clarke, Home Office Presenting Officer


DECISION AND REASONS
1. The Appellant is a citizen of Nigeria. His date of birth is 25 September 1994. The Appellant’s case is that he is a victim of trafficking. We therefore anonymise the Appellant, having had regard to the Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private.1
2. The Appellant has a long history of committing criminal offences, starting in 2007 when he was a youth. The offences range from fare evasion to robbery and drug offences. The SSHD wants to deport the Appellant pursuant to a deportation order signed on 18 November 2014.2 The SSHD refused the Appellant’s claim that deportation would breach his rights under Article 8 and his claim on protection grounds, made on 20 July 2016 (the basis of his claim being that he was at risk from Boko Haram should he be returned to Nigeria) in a decision of 26 September 2018. The Appellant appealed against the decision of 26 September 2018. The First-tier Tribunal’s decision to dismiss the Appellant’s appeal against the decision of the SSHD was set aside by a panel comprising Upper Tribunal Judge Canavan and Deputy Upper Tribunal Judge Roberts. The panel found that the judge erred in law. The decision of the panel (“the error of law decision”) is appended hereto.
3. On 31 July 2017 the Appellant was convicted at Lincoln Crown Court of two counts of possession with intent to supply class A drugs, for which he was sentenced to 67 months’ imprisonment. The sentencing judge remarked as follows:-
“On 14 July 2017, you pleaded guilty to two offences of possession with intent to supply class A drugs, namely heroin and cocaine. You are but 22 years of age, having been born in Nigeria in 1994. Since attaining the age of 12, you have amassed a total of 28 criminal convictions for which you have been sentenced on sixteen different occasions. In particular, and of significant relevance to the sentencing powers of this court, you have previous convictions for drug trafficking offences; first, on 21 September 2011 and, again on 24 March 2014 on which occasion you were sentenced to a custodial term of thirteen months. The effect of those prior convictions is that pursuant to the powers of Criminal Courts (Sentencing Act) 2000, Section 110(1), you are liable to a minimum term of seven years’ imprisonment except where the court is of the opinion that there are particular circumstance which either relate to any of the offences or the offender and it would be unjust to do so in all the circumstances.
Now, both Friday and today your Counsel urged me to consider your immigration status and the fact that you are not permitted to earn a living nor claim benefits as being circumstances making it unjust to impose a minimum sentence of seven years.
In a letter handed to me in court on Friday, you say ‘I only done what I done because I was desperate and I felt like I didn’t have another option. I just want to ask for mercy and forgiveness. I made one mistake’. Your mother described you as reliable, loving and respectable, having been brought up under strict Christian values. On the other hand, the prosecution asked me to consider the circumstances of your committing the drug offences so far away from the area in which you live and where you habitually carry on your criminal behaviour. He drew my attention to … some guidance on the recently acknowledged practice which is called cuckooing. In general terms, cuckooing refers to retail drug dealers from large metropolitan centres who travel to a smaller provincial community to sell drugs and who set themselves up in premises locally from which they operate.
You were interviewed under caution and you exercised your right to remain silent. That was your right but it provides no innocent explanation for your presence in Grantham, committing drug trafficking offences. The distance travelled by you was 121 miles and there is no independent evidence pointing to a reason why you were there. Given your attendance history and your committing such crimes in Grantham, I consider it to be a fair and reasonable inference to be drawn that you were, in some capacity or other, engaged in cuckooing. The Court of Appeal urges a careful approach to the role played in this type of crime. This particular type of offending carries with it the hallmarks of professional crime above and beyond that in ordinary street dealing so that judges should pay particularly close attention to the assessment of role and the offender’s place within a category range.
I now turn to the sentencing guidelines and I leave aside the impact of Section 110 for the moment. There is insufficient evidence for me to conclude that you played a leading role. However, I do find that you were involved in cuckooing and, to that extent, your role was significant. I also infer from your actions in the bathroom that you were disposing of drugs and thus the true quantity will never be known. The guidance in relation to a significant role in a category 2 offence is a range between six and a half to ten years, with a starting point of eight years. In a category 3 case, the range is three and a half to seven years for a person of previous good character convicted after a trial of a single offence.
I will treat this as a single offence but you are far from being a man of good character. I treat your previous criminal history as a significantly aggravating feature, as I do, that you were engaged in cuckooing on this occasion. I will give you the benefit of the doubt and regard this as a category 3 offence.
I then ask myself the question, is the imposition of the seven year statutory minimum unjust. I took time to reflect on this matter and I have done so carefully. Parliament passed Section 110 to discourage those who wish to poison other members of society for profit from doing so. In my judgment, it was designed to impact on people just such as you, who fail to learn from their past behaviour. Nothing I have read in the testimonials from your mother or your fiancée assists you. All I read is shallow pleading, based on your assurances to turn over a new leaf and the fact that you want to be a good role model for your child, who is soon to be born. I am afraid I do not share the sentiment that you ought not to be judged by reference to your past. By enacting Section 110, Parliament was decreeing the opposite.
In my judgment, you have willingly chosen, from a very young age of 12, to lead a lawless lifestyle and that you will continue, unless prevented. I regard it as my public duty to give effect to the intentions of Parliament. It will be hard on you but not, I am satisfied, unjust to impose the statutory minimum sentence, if only because the sentence I would have passed by reference to the guidelines would have been very close to seven years’ imprisonment.
However, the honorary recorder of Lincoln, His Honour Judge Pini, QC, allowed you until the end of June to plead guilty and to preserve the maximum credit. You had the good sense to take up his offer. I consider myself bound by his decision and I will allow you the maximum amount of credit which the law permits. That is a reduction of 20%.
The sentence of the court, therefore is that you go to prison for five years and seven months on each count concurrent.”
4. At the time of the appeal before the First-tier Tribunal and the Upper Tribunal (the error of law hearing) the Appellant was unrepresented. The Upper Tribunal has made a series of directions relating to the case. In compliance with directions the Appellant through his representatives has submitted a bundle (AB) comprising 123 pages. Mr Clarke consented to the Upper Tribunal considering evidence that was not before the First-tier Tribunal and the raising of new matters. The SSHD relied on the bundle that was before the First-tier Tribunal (RB).
5. It is the Appellant’s case that he was trafficked before he came to the United Kingdom, into the United Kingdom and for a third time by county line drugs gangs. Post the date of the hearing we received notification from the Appellant’s solicitors that a positive CG decision had been made in respect of the Appellant. The SSHD did not object to the admissibility of that evidence but requested that the hearing be reconvened for further submissions following skeleton arguments. The hearing was reconvened on 17 May 2022 when we heard submissions from the parties in response to the positive CG decision.
The Issues
6. We have to decide whether returning the Appellant to Nigeria would amount to treatment including torture or "inhuman or degrading treatment or punishment" breaching his rights under Article 3 ECHR on account of his mental health, risk of trafficking and or destitution. If the answer is affirmative, the appeal succeeds ( Article 3 is a non-derogable right). If not, we must consider whether the decision of the SSHD breaches the Appellant’s right to private and/or family life under Article 8 ECHR. This involves a balancing act the outcome of which may not give rise to one lawful conclusion only.
The Law
7. There was no dispute between the parties concerning the relevant law and application thereof. Section 32 of the United Kingdom Border Act 2007 (“ the 2007 Act”) states in summary that the SSHD must make a deportation order in respect of a foreign criminal subject to exceptions set out in s.33 of the 2007 Act. The Appellant states that deportation breaches his rights under the ECHR which is an exception and therefore the deportation order is unlawful.3
8. The Appellant must establish that he meets the threshold for establishing Article 3 harm identified at [29] – [31] of the Supreme Court’s judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17; [2020] Imm AR 1167. That is he must be exposed to a real risk of (i) a significant, meaning substantial, reduction in his life expectancy arising from a completed act of suicide and/or (ii) a serious, rapid and irreversible decline in his state of mental health resulting in intense suffering falling short of suicide, following return to the Receiving State. When undertaking an assessment the six principles identified at [26] – [31] of J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409 (as reformulated in Y (Sri Lanka) v SSHD [2009] EWCA Civ 362) apply. The Appellant must adduce evidence capable of demonstrating that there are substantial grounds for believing that Article 3 will be violated. This can be explained as raising a prima facie case which means a case which in the absence of challenge would establish infringement. It is a demanding threshold. It is for the Appellant to demonstrate that there are substantial grounds for believing that such a risk exists; after that point, the burden falls to the Secretary of State to dispel any serious doubts raised by it (AM [33].) We apply the guidance in AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 following Savran v Denmark (application no. 57467/15).
9. We also recognise that Article 3 may be engaged in circumstances where the person is to be returned to conditions of extreme material deprivation and in circumstances where the material deprivation is not intentionally caused the modified N test (N v UK (2008) 47 EHRR 39) set out in AM applies: Ainte (material deprivation) – Art 3 – AM ( Zimbabwe) [2021] UKUT 00203.
10. Should the Appellant be at risk of being re-trafficked this could amount to a breach of Article 3. The general principle is that Article 3 may be breached by intense physical or mental suffering (Pretty v United Kingdom [2002] 35 EHRR 1.
11. The statutory framework for consideration of Article 8 claims is s.117 of the 2002 Act which we set out below. We have been assisted by guidance given by the Court of Appeal in NA (Pakistan) v SSHD [2016]Civ 662 and HA (Iraq) v Secretary of State [2020] EWCA Civ 1176 and other case law which we discuss in our findings.
Section 117 of the 2002 Act
12. The relevant parts of s.117 of the 2002 Act are as follows:-
“117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
117D Interpretation of this Part
(1) In this Part—
‘Article 8’ means Article 8 of the European Convention on Human Rights;
‘qualifying child’ means a person who is under the age of 18 and who—
(a) is a British citizen, or
(b) has lived in the United Kingdom for a continuous period of seven years or more;
‘qualifying partner’ means a partner who—
(a) is a British citizen, or
(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act).
(2) In this Part, ‘foreign criminal’ means a person—
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who—
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.”
13. It is not challenged that the Appellant is a foreign criminal and a serious offender, having been sentenced to more that four years imprisonment.4 It was agreed by the parties that in order to succeed under Article 8, he must establish very compelling circumstances in the context of s.117C (6) the 2002 Act. Moreover, it was not challenged that the Appellant’s son, a British citizen, L, is a qualifying child on account of the fact that he is a British citizen.

The Evidence
14. The Appellant relies on two witness statements dated 28 July 2021 and 19 January 2022. In addition he gave oral evidence. His evidence can be summarised as follows.
15. The Appellant lived in Nigeria until he was aged 6 with his mother (EL), father R and older brother C. His mother came to the UK when he was around aged 4 leaving the Appellant and C and R. The Appellant can remember that before he came to the United Kingdom he lived with C and a woman in Nigeria. The woman violently abused them. They were made to do housework, kept in poor conditions, abused and effectively imprisoned. He has been told by his mother that the woman brought him to the United Kingdom with C and that she had to pay a lot of money to the woman so that she handed them over to her.
16. Once in the United Kingdom the Appellant and C were kept captive in a house in London where he continued to be ill-treated by the woman. The Appellant and his brother were able to run away. After they escaped the woman threated to kill his mother.
17. The family lived in Dalston. The Appellant attended various schools. His mother married a French national, M, however they separated in 2007. When the Appellant was in school year 7 his mother sent C back to Nigeria. The Appellant was devastated. He started to get into trouble in 2007 when he was around aged 13. The relationship he had with his mother at the time was difficult. When he was aged 16 he met an older boy who was a drug dealer. The Appellant does not want to identify him. He refers to this person as ‘John’. John was abusive to the Appellant and pressured him to commit offences.
18. When he was aged 17, the Appellant realised that he did not have immigration status here and therefore he was unable to return to college to complete a second year of studies. He cut himself by punching through glass and still has a scar on his arm. In 2014 the Appellant was stabbed with a screwdriver. His attackers stole drugs that he was carrying for John. The Appellant believes that John contrived this so that the Appellant would be in debt to him.
19. The Appellant started a relationship with LM in August 2016. They have a son, L. L was born in 2017. At this time John was still making threats to the Appellant and at one point he broke down his mother’s front door. The Appellant agreed to do another job for John in April 2017. The Appellant felt that he did not have an option. He was desperate because he wanted to provide for his partner and child.
20. The Appellant has been advised to appeal against convictions, but he does want to because he is scared to identify John. If he were to do so his family would be at risk of repercussions from John and would have to move from the area. He did not have drugs on him when he was arrested and wanted to plead not guilty. He raised coercion in mitigation. He told the police that he was working for someone, but he did not identify John.
21. John has mostly left him alone since he was released from his last prison sentence on 3 March 2020. He receives the occasional threat from John on social media.
22. The Appellant was not advised to raise slavery/trafficking as an issue until he instructed JCWI. However, he has always stated that an agent was involved in bringing him into the United Kingdom.
23. The Appellant started to receive counselling when he was in prison which he found helpful. He was subject to a random attack in prison in 2019. The Appellant and a prison officer had hot water, sugar and bleach poured over them. The Appellant’s face was badly burned. This made his mental health worse and he contemplated suicide. He was overwhelmed by life’s pressures.
24. When the Appellant was released from prison he spoke to his GP about his mental health problems. He started to take medication. He attempted suicide in August 2020. At this time LM had stopped the Appellant seeing L and he was terrified of being deported. He felt that he had nothing left. He tied a rope around his neck. He called an ambulance and was taken to A&E.
25. The Appellant is currently prescribed 20 milligrams of Citalopram daily. He receives counselling from Waterloo Community Counselling. He could not cope without medication or counselling.
26. The Appellant is in constant fear of having to return to Nigeria. C has a lot of problems there. He had to move around Nigeria and he is now in Ghana. He moved there in October 2020. Those who trafficked the Appellant and C pursue him.
27. When the Appellant claimed asylum he did not mention C because he was unaware of C’s’ difficulties in Nigeria at this time. He had not spoken to his mother about it. The Appellant does not know anything about Nigeria. He does not speak the language and does not have anywhere to live. If the people who trafficked him do not find him he will still be homeless and have nothing and he will be kidnapped and forced into a life of crime. In any event, if he is not killed by someone he would kill himself. He thinks that he would be gone within a year, one way or another.
The Evidence of EL (the Appellant’s Mother)
28. EL relied on two witness statements of 28 July 2021 and 14 January 2022 which she adopted as her evidence-in-chief. Her evidence can be summarised.
29. EL currently has limited leave to remain. She is intending to renew her status again in September (2021). She was forced into marriage to R, the Appellant’s father. R was abusive and violent to her. She had two children with him, C and the Appellant. She was assisted by a woman to escape Nigeria. It was arranged in haste and she could not arrange for her children to travel with her but she planned for them to join her. However, R did not cooperate with this.
30. After she had been in the UK for two years, EL was contacted by a Nigerian woman, Niniola, who informed her that R owed her money and had given her C and the Appellant. She said she would bring them to the United Kingdom in exchange for £5,000. Otherwise she will take them to Italy where they would work to pay off the debt. When in London the children were able to escape. However, Niniola threatened them and the family was forced to move following their flat being broken into.
31. EL has not recovered from the whole incident which has never really been discussed by the family. It has now been raised because of the Appellant’s case but it is painful to discuss. The Appellant was young at the time and he does not know or remember everything. The children were traumatised and very emotional, particularly the Appellant.
32. EL was married to a French national, M, in 2003 however they broke up following a traumatic ectopic pregnancy. At this point EL’s mental and physical health deteriorated as did the Appellant’s behaviour.
33. She sent C to Nigeria in 2008 because she had lost her job and did not have any income. She was desperate. She feared that he would turn to crime in the UK because there was so much gang violence. She was not coping and her mother suggested sending C to Nigeria where she would take care of him. R was by this time in Sierra Leone. The Appellant was devastated when he discovered that C had returned to Nigeria.
34. Because of the Appellant’s immigration status he could not work or study in the United Kingdom. He was targeted by criminals. Until he was aged 15 or 16 he was well-behaved. He got in with the wrong people. Since his release in March 2020 he has mostly been left alone.
35. The Appellant has a special bond with his son L.
36. EL’s greatest regret in life is sending C to Nigeria. She has ruined his life. He is being pursued by the traffickers responsible for trafficking him and the Appellant to the UK. He had to leave Nigeria for his own safety and finish his degree in Benin. He graduated with a 2:1 in International Relations. He then moved in with his friend’s family in Lagos, but he had to leave because he was being pursued. He moved around Nigeria. At one point he went to live in Dubai but he could not afford to stay there. He briefly lived with his aunt in Nigeria, but did not want her children to be harmed so he had to leave. He lived in a hotel for a while. She now rents a property for him in Magboro. He has been to the police as a result of the attacks but the police will not do anything. Nigeria is corrupt. The police have not protected C and they will not protect the Appellant.
37. It would be the end of the Appellant if he had to go to Nigeria. He will be targeted to peddle drugs or he will be kidnapped and held ransom because he will be perceived as wealthy. She also fears what he would do to himself.
38. EL’s mother died of COVID-19 in November 2020.
39. C is engaged and his fiancée’s parents are trying to arrange for her to come to Europe to advance her studies and they are hopeful that C will be able to get a visa to accompany her. She calls C every morning in order to ensure that he is alright. He moved to Ghana permanently in July 2020.
Evidence of MB
40. MB is the mother of the Appellant’s son, L, and his ex-partner. She submitted a handwritten statement at the hearing and adopted its contents as her evidence-in-chief. Her evidence can be summarised as follows. The Appellant is a loving supportive father to L. He sees L often and plays a proper parental role.
Evidence of RJ
41. RJ is L’s great aunt and has written an email to support the Appellant’s relationship with L and the quality of the relationship.
The Evidence of Dr Sarah Heke
42. Dr Sarah Heke is a consultant clinical psychologist. She has prepared a report, having been instructed by the Appellant’s solicitors. The date of her report is 19 July 2021. Dr Heke assessed the Appellant during a telephone call lasting one and a half hours. Her evidence can be summarised as follows.
43. The Appellant suffers from a primary diagnosis of severe post-traumatic stress disorder (PTSD) which is directly related to his past traumatic experiences whilst growing up in Nigeria and being subjected to physical and emotional abuse and exploitation. This has been exacerbated by losing his brother. His traumatic experiences are, “very much in line with being both directly and indirectly threatened”. Traumatic experiences in Nigeria and threats from the drug trafficker and his experiences in detention and prison “underpin his PTSD symptomology”. Furthermore, the fear of return to Nigeria where he will face destitution and threats to his life “exacerbate” his symptoms. The Appellant is “clearly reexperiencing his past traumatic events compounded by these fears through his nightmares with heightened hyper arousal on waking”.
44. Dr Heke states that, “The subjective fears of being threatened and killed are directly related to the Appellant’s knowledge that his brother has been targeted and struggles to protect himself when he has a significantly stronger connection with Nigeria”. Dr Heke again refers to subjective fear as “key as a sense of current threat is core to the maintenance of PTSD and also influences negative appraisals about the self, world and others post trauma”.
45. The Appellant did not report to Dr Heke that he engaged in self-injurious behaviours as a means of coping with either overwhelming hyper aroused or hyper aroused states however he has engaged in them in the past through cutting and suicide attempts and experiences difficulty in regulating his emotional state. The Appellant has become disassociated and detached from his surroundings as a form of “shutting down”. He has impaired capacity to form meaningful relationships and believes his mental health led to the breakdown of his relationship with his son’s mother. Dr Heke believes that this contributed to his vulnerability to engaging with gangs as a teenager and later to drug traffickers.
46. It is Dr Heke’s opinion the Appellant has experienced at least six of the ten identified adverse childhood experiences that are widely acknowledged to correlate with mental and physical health problems in adulthood. Childhood adversity is associated with adult criminality.
47. The Appellant is suffering from severe major depressive disorder (MDD) with comorbid anxiety as a result of overwhelming stress about his situation and the constant treat of being forced to return to Nigeria and the guilt and shame of not being able to provide for his son. The Appellant meets the full diagnostic criteria for MDD symptoms which are exacerbated and maintained by the fact that he has had to live with the subjective fear of being deported to Nigeria, which has been intolerable for him, given his early childhood abusive experiences and not being able to fully care for his son.
48. The Appellant would benefit from specialist trauma focused psychological therapy which is the recommended treatment for PTSD. He has recently started counselling which will not address PTSD symptoms but the Appellant is finding it helpful though difficult. He is prescribed medication (Citalopram 20 milligrams). Following a suicide attempt on 10 August 2020 it was recommended in his discharge summary from Queen’s Hospital Psychiatric Liaison Service that his medication was monitored and he was referred to the community mental health team (CMHT) but from his medical records it does not appear that it has been actioned. The Appellant did not report in his assessment or his statement having been assessed by a psychiatrist or CMHT. His medication does not appear to have been reviewed, only administered through repeat prescriptions. Dr Heke recommends that as a minimum his antidepressant medication is reviewed.
49. The Appellant is, in Dr Heke’s opinion, motivated to engage with treatment and if he is not able to access the recommended phased-based trauma focussed psychological therapy he will continue to suffer with severe PTSD symptoms and depression, which are likely to worsen should he face further rejection, delays and setbacks in his immigration case.
50. If PTSD is left untreated it is unlikely to resolve independently and can contribute to further health problems. Return to Nigeria would exacerbate the Appellant’s mental health problems and impact on his capacity to access treatment independently and alone in a country where he is entirely unfamiliar and has no support, aside from his perception of the many risks to his life. He would be “extremely vulnerable to becoming more depressed, with increased PTSD symptoms”. He would be faced with significant triggers to past trauma and a sense of loss of being able to provide a different life for his son. He will be faced with the reminders that he has been actively avoiding of his traumatic and abusive experiences in Nigeria. His brother C would not be able to offer him protection. The Appellant believes he will be easily identifiable as having grown up in the UK. He would be unable to speak the language and would be immediately targeted. He is unlikely to seek treatment as this would draw attention to himself. He has struggled to access treatment and support here in the UK having not recognised that he could receive this until he was in prison. His main motivating factor at present is to get well and to be a better father to his son. The Appellant has suffered from depression and anxiety since childhood due to abuse, disrupted attachment and displacement which contribute to his vulnerability to engage with gangs and criminal offending behaviour. In addition, his mother’s inability to provide unconditional nurture and care due to being subjected herself to domestic violence and struggling to cope with her own mental health have been “instrumental in the development of [Appellant’s] mental health condition and underpins his vulnerability to developing complex PTSD and lifelong depression”. He has been extremely disadvantaged and traumatised throughout his life, which has caused severe and enduring mental health problems.
51. Dr Heke believes that “facing his subjective fears of being targeted and killed and/or destitute and alone will be overwhelming”. The Appellant has a history of suicide attempts and has spoken of ongoing suicidal ideation which is a “significant risk on return, when alone and facing subjective fears and threat of being persecuted, killed and destitute”.
52. Dr Heke does not believe that there any identifiable mitigating factors or support structures that the Appellant would be able to engage with to significantly reduce the likelihood of mental health deterioration.
53. Dr Heke’s opinion is that the Appellant’s current risk of self-harm is primarily related to suicide which she believes to be high and predominantly related to the situation of removal from the UK. The risk of self-harm or engaging in self-injurious behaviour is low as he has not engaged in this for a number of years. The Appellant has made three serious suicide attempts that have required medical attention. In 2014, when on remand, in 2017 when in prison and in August 2020 shortly after leaving prison when contact with his son was stopped. The attempts were all highly impulsive and the Appellant describes feeling overwhelmed. In Dr Heke’s opinion, the key factor when the Appellant describes feeling overwhelmed was a sense of hopelessness, which is the most significant risk factor for completing acts of suicide.
54. A further risk factor is the combined effects of PTSD and depression. If the Appellant is not able to access treatment this adds to the risk. The Appellant reported to Dr Heke continuing to experience highly frequent suicidal thoughts and in her opinion the risk of suicide is currently moderate, but this would escalate to high should he believe that he was going to be removed to Nigeria. He is at high risk of suicide at any stage of removal.
55. Protective factors for the Appellant’s mental health are his son, the Appellant’s relationship with his mother. Professional support could be a protective factor in the future if he is able to maintain his current level of engagement. The Appellant’s wish to protect himself from further exploitation from “John” and not to return to criminal activities and face the risk of prison again is a protective factor. The diagnosed mental health problems all negatively impact on the Appellant’s capacity to recall past events in an internally coherent and consistent way. Although he does have the capacity to give evidence, he should be considered a vulnerable witness.
Evidence of Elizabeth Flint
56. Elizabeth Flint is the director of Biloba Consultancy Services Limited. She is an experienced expert witness in human trafficking and slavery. She has extensive experience in working with victims of trafficking. Her report is dated 30 July 2021. Her evidence can be summarised as follows.
57. Ms Flint considered the Appellant’s account of his experiences in Nigeria and his evidence of how he came to the UK and considers that his account falls within the Trafficking Convention.5 Ms Flint recommends that the Appellant be referred to a specialised support organisation for rehabilitation, support and guidance. She expresses concern that he has been criminalised for activities that he was forced to engage in because of his exploitation and that his vulnerabilities have been overlooked. Her conclusion at paragraph 82 reads as follows:-
“… It is critical that [the Appellant’s] case is viewed through a trafficking lens, taking account of his complex array of risks, needs and vulnerabilities and of the legacy of his trafficking experiences, from a very young age that has impacted the course of his life. It is critical that push and pull factors are not added to in the future that could increase his vulnerability to exploitation.”
58. Ms Flint concludes that in her professional opinion the Appellant has been trafficked within Nigeria, to the UK and within the UK.
The Evidence of Dr Aidan McQuade
59. Dr Aidan McQuade is a former director of Anti-Slavery International and an expert on slavery and trafficking. He has prepared a report of 28 July 2021 at the instruction of the Appellant’s representatives to provide an expert opinion in relation to the plausibility of the Appellant’s account and whether the Appellant would face a real risk of harm and/or re-trafficking from those who trafficked him to the UK and/or whether the Appellant faces a general risk of re-trafficking on return in the light of his particular circumstances. The conclusions of Dr McQuade can be summarised as follows.
60. The sale or transfer of children by parents or guardians to a third party to raise money or pay off a debt is distressingly common in Nigeria. The practices were defined as “child slavery” in the 1956 UN Supplementary Convention on Slavery.
61. Dr McQuade comments on the situation as described by the Appellant and his mother relating to C being pursued in Nigeria to recoup the original debt that prompted their trafficking in the first case. He states that, “is the first time I have heard of a pursuit such as this occurring after such an expanse of years anywhere in the world”. However, if C has had contact with his father this perhaps could have put him at risk as his father appears to be the original trafficker. In any event, the account should be viewed in the context of a deteriorating security situation in Nigeria and the rise in kidnapping for ransom across the whole country. Dr McQuade states that:
“It is possible that the threats that Henry’s mother describes [C] experiencing are related to this and, as someone who is known to have family overseas [C] is being seen as someone who could potentially be the source of a lucrative ransom”.
62. Dr McQuade finds that the Appellant’s account of being trafficked is corroborated by his presence since childhood in the UK with irregular status and the diagnosis of Dr Heke in her report that he suffers from PTSD. In the opinion of Dr McQuade it is probable that the Appellant’s drug offences were a result of his being re-trafficked.
63. Dr McQuade states that “as a result of his childhood experiences of trafficking, [the Appellant], became the sort of vulnerable young person that county lines traffickers prey upon”.
64. Dr McQuade has observed a number of cases involving victims of trafficking who have been exploited by drugs gangs and he opines that given the Appellant’s “vulnerabilities as an irregular migrant, and as a young person with mental health issues again it should have been recognised that he was a potential victim of trafficking when authorities encountered him involved in narcotics activities”. In relation to risk on return to Nigeria, Dr McQuade opines that the Appellant’s mental health and his history of attempted suicide shows him to be particularly vulnerable. If the Appellant is returned to Nigeria he would find himself situationally vulnerable as de facto in a foreign country where he would be socially isolated, having not lived there since the age of 6. It would be unreasonable to expect him to seek support from his father as it appears that he trafficked him in the first place. He would appear in the wider community to be English with family overseas to would appear an attractive target as to yield a ransom. Kidnappings for ransom and extortion are now widespread in Nigeria. The Appellant would become “circumstantially vulnerable” very quickly. The Appellant has already been re-trafficked in the UK and the vulnerabilities which led to that would be exacerbated on return to Nigeria which would lead to “a strong possibility that he would be exploited or re-trafficked”.
65. It is difficult to see how the Appellant could safely relocate and “safely negotiate the diverse security risks within the country”. He would stand out in Nigeria even if he had some reasonable familial support, which he does not have. He would find himself targeted by bandits no matter where he goes and a valuable kidnapping target.
66. Given his particular vulnerabilities it is highly unreasonable to expect that he would receive the support from the Nigerian authorities necessary for his protection.
67. Dr McQuade concludes that the Appellant has, as a result of his past experiences of trafficking and exploitation been deeply traumatised, which has left him vulnerable to further exploitation and re-trafficking. His personal vulnerability would be further exacerbated by additional situational and circumstantial vulnerabilities should he be returned to Nigeria where people who are considerably less vulnerable than him are regularly trafficked.
Submissions
68. We have the Appellant’s skeleton argument. We have the SSHD’s skeleton argument and Ms Smith’s supplementary skeleton and second supplementary skeleton arguments in respect of the CG decision. We heard full oral submissions from both parties on all matters. We do not consider it necessary for us to set out in any detail the submissions that we heard. However, we will engage with the issues raised by the parties when making findings on the evidence before us.
Findings and Reasons
69. At the start of the hearing, we indicated that we would adopt the reasonable adjustments recommended by Ms Smith in her skeleton argument in accordance with relevant guidance. 6 The Appellant is a vulnerable witness, having been diagnosed as having PTSD by Dr Heke (AB/93-130). At the hearing there was a decision from the National Referral Mechanism (NRM) that the Appellant is a potential victim of modern slavery. 7 We applied the same guidance when considering the cogency and consistency of the Appellant’s evidence. A conclusive grounds decision that the Appellant is a victim of modern slavery was made after the hearing on 2 February 2022. Following the decision of MS (Pakistan) v SSHD [2020] UKSC 9, we are not bound to accept the decisions of the NRM as to whether a person is a victim of trafficking (VOT). However, Mr Clarke did not seek to go behind the conclusion of the NRM. His main submissions was that whether the Appellant was trafficked was not determination of the appeal. We do not understand Ms Smith to disagree with this. There can be no dispute that the Appellant has been subject to three separate incidents of trafficking and he is, on any account, a vulnerable witness.
70. The CG decision identifies three separate instances of trafficking; the Appellant was internally trafficked in Nigeria; the Appellant was trafficked to the United Kingdom; the Appellant was trafficked in the United Kingdom by a drugs gang. This evidence is supportive of the Appellant’s account although it is not conclusive evidence that he was trafficked. The decision makers were satisfied on the balance of probability that he was trafficked on three separate occasions. They had evidence before them which supported the Appellant’s account, but they did not have all the evidence that we had before us, particularly that in the RB, which is capable of undermining certain aspects of the Appellant’s account. They did not have the benefit of hearing the Appellant and his mother giving evidence. They did not have the benefit of submissions from the SSHD regarding the reliability of the expert evidence viewed in the context of the evidence as a whole. However, we accept that the Appellant is a VOT and his life experiences, choices and credibility must be considered in this context.
71. We heard evidence from the Appellant, his mother (EL) and ex-partner (MB).
72. While we accept that the Appellant has been trafficked on three occasions, in terms of the details and the immigration history of the Appellant and his mother, we make the following observations. We found the evidence of the Appellant and his mother to be internally and externally inconsistent on a number of issues. There is no coherent or consistent account given explaining how the Appellant came into the United Kingdom or supporting that he was trafficked into the United Kingdom. We take into account that the Appellant’s solicitors (Nicholas Solicitors) wrote to the Respondent on 17th November 2014 indicating that the Appellant entered with a visit visa when he was a young child, and he was accompanied by his mother’s friend (RB/H2). Bestway Solicitors who represented the Appellant in 2016 wrote to the Respondent on 1 July 2016 stating that “ [the Appellant] advised that his mother took him to Ghana and left for the United Kingdom. He spent some years with a man he was introduced as (sic) his father” (RB/P1). We take into account a statement from the Appellant of the same date in which he says that his father is unknown to him but he states that a person “took me to someone in Ghana, who was introduced to me as my “daddy.” It was there I learnt that my dad is partly Ghanaian and partly Liberian. The same person took me to the agent that bought me to my mum in London in May 2002” (RB/P6). Bestway Solicitors in a letter to the Respondent on 6 July 2016 (RB/Q2) stated that the Appellant had “advised” that he entered the United Kingdom as a child with his father in May 2002 from Ghana. There was no mention of trafficking in a handwritten statement dated 22 July 2016 by the Appellant at RB/RS in which he sets out his protection claim ( based on a fear of Boko Haram and on religious grounds as a Christian). In that statement he says that he does not know anyone in Nigeria and that his family lives in the United Kingdom. In the Appellant’s SCR (RB/T5) he stated that he was brought to the United Kingdom by an agent. In his asylum interview on 25 October 2016, he stated in answer to Q1 that that he thinks he was brought into the United Kingdom by an agent (RB/U7). He also stated that he lived with the agent for a while (a couple of weeks or a couple of months) and he could not remember how he got to his mother’s. He said that he thought the agents were a man and woman but could not remember if they were a couple. He said in answer to Q9, “I can’t remember I broke out the house and ended up finding my mum”. At Q12 the interviewer stated, “So you were 6-7 years old, you broke out the house” and asked the Appellant, “how did you find your mum?”. The Appellant answered, “I can’t remember, more or less she was looking for me. I didn’t really know what was going on in the first place as I didn’t choose to come here, I didn’t know what was going on.”
73. EL’s evidence at the hearing and in her witness statement is in contrast to what she wrote in a letter to the Respondent (RB/G1) in which she states, “[the Appellant] was bought to London to meet me through an agent in April 2002, due to constant illness after I left him in Nigeria. The agent refused to hand over the travelling passport to me”.
74. The Appellant has not been able to give a coherent or consistent account. We are not surprised by this because he was a young child at the time. It is likely that he remembers some of what happened, but not the finer details and not whether he was trafficked or smuggled or the relationship between his mother and the person who brought him into the country. What the Appellant now says about how he got here and the relationship between his mother and whoever brought him into the country is likely to have come from his mother rather than his memory. He accepts this in his witnesses at para 6 (AB/9) although his oral evidence on this point was less clear. In his asylum interview he repeats several times that he cannot remember when asked about the circumstances. The Appellant has in oral evidence attempted to distance himself from the differing accounts given by solicitors representing him and was not able to explain the discrepant accounts. His mother’s oral evidence was that instructions were taken by solicitors over the telephone leaving scope for mistakes. We do not accept that this is an adequate explanation bearing in mind the many differing accounts given by both.
75. The prevalence of trafficking in Nigeria is supported by the evidence of Dr McQuade. He relies on the report of Dr Heke and the diagnosis of PTSD. While we have reservations about Dr Heke’s report which we go on to explain, we accept that this Appellant has PTSD as a result of childhood trauma and having been trafficked. In so far as Dr McQuade’s evidence supports a risk of re-trafficking we will go on to discuss this in due course.
76. We are not satisfied that the Appellant knows or remembers the circumstances of his journey to the United Kingdom. We take into account that he has PTSD (we accept this diagnosis for the reasons we go on to explain) and the impact of this on his capacity to recall event. There may be reasons why his mother, who can reasonably be expected to remember, has not given a consistent account. Her evidence is inconsistent with what she told the home office in 2014. It surprised us that she would not want to involve the police if her children were being threatened in London in the way she described. Contrary to her evidence (seeking to explain why she did not report the incident to the police) she was not here unlawfully: she had a pending application based on her marriage to French national, Michael. Her evidence was that she was with Michael at the time. Despite the credibility issues that arose throughout the hearing, we do not seek to go behind the finding of the NRM that the Appellant was trafficked into the United Kingdom. Whether the Appellant was trafficked or smuggled into the country at the request of his mother who could not pay which culminated in the Appellant and C having to escape, the likely impact of this on the Appellant is probably equally as harrowing. Having considered the evidence in the round, in respect of the Appellant’s life before he entered the United Kingdom, we accept that he and C were left by their mother when they were young.
77. There is no reason to disbelieve the evidence that the Appellant’s mother was in a violent relationship with the Appellant’s father and that she fled Nigeria leaving her two young children. We also accept that before coming to the United Kingdom they lived with a woman who ill-treated them. The Appellant gave an account of living in a compound in Nigeria (AB/8). The account given reads very much like a childhood memory and we accept this part of the Appellant’s evidence. We accept that the account is highly suggestive that the Appellant and C were either sold by their father or the woman was entrusted with their care after they were abandoned by their father and abused her position and made the children work. The CG decision is strong support of the former. Either way it is reasonably likely that the Appellant was trafficked into domestic servitude. We are in no doubt that this would have been a traumatic experience for him. We have taken into account the evidence of Dr Heke, Dr McQuade and Ms Flint which we will engage with in more detail in due course. They all broadly support that the Appellant has been trafficked and has experienced traumatic childhood events.
78. We have considered the evidence of Ms Flint (AB/35) which supports that a VOT would delay making a claim for asylum and that there are barriers to disclosure, however, in respect of the allegation of being trafficked into the United Kingdom (in contrast to being trafficking within the United Kingdom by ‘John’), the barriers have less relevance. Her evidence is potentially far reaching; at one point she indicates that she would not rule out that the Appellant was subject to sexual exploitation. We accept the thrust of her evidence that victims of trafficking often delay disclosure.
79. Much was made about the experts’ evidence by Mr Clarke. We too had concerns about the evidence of Dr Heke (AB/93-103). We did not find that the questioning by her of the Appellant was problematic as submitted by Mr Clarke. She had to ask questions and she had to be satisfied that the Appellant understood them in order to carry out an assessment in accordance with the American Psychiatric DSM 5 (2013) criteria. We are mindful that she did not meet the Appellant face to face and was unable to use the camera function so the assessment was made during a telephone call. However, Dr Heke (whose expertise was not challenged) states that she believes that with 20 years clinical experience she has the skills and ability to conduct an assessment in this manner. The expert had a number of documents before her including the OASys assessment which she does not date. We are satisfied that it was the most recent OASys Report of 4 September 2020. She also had the Appellant’s medical records.
80. There was evidence before Dr Heke which was capable of undermining the Appellant’s account which she does not attempt to engage with. The Appellant told Dr Heke that he had suicidal thoughts. At para. 3.2.13 of Dr Heke’s report (AB/99) it is recorded that she asked the Appellant whether he had any plans for ending his life and he is recorded as saying “it would be the same way I have been trying to before – yes by hanging. I couldn’t cope”. In response to the question asked (para. 3.2.25) the Appellant referred to having tried to commit suicide a few times in prison and the mental health team having really helped him. He referred again to self-harm in prison (para. 3.2.28). There was no evidence before Dr Heke to support the Appellant having self-harmed or having attempted suicide in prison. While we accept that Dr Heke is capable of making a clinical assessment without this, there was evidence before her that was capable of undermining what the Appellant said to her and with which in our view she did not engage. The following is stated in the OASys Report (AB/299) of 4 September 2020;
“.. the Appellant had stated on his SAQ that depression and stress are a problem for him. He has not been clinically diagnosed with depression but states that he does feel low at times. He has never had any thoughts of suicide or self-harm. He says that he is finding his current situation stressful since he has the possibility of deportation hanging over him and is very keen to stay in this country for his child.”
81. While we note that on the same page of the OASys Report, the Appellant’s mother disclosed that he had made threats to end his life, it is also reported that she stated that the situation had “settled” as the Appellant and his mother had reconciled. It is recorded that the Appellant “was encouraged to vent to his offender manager when he is feeling depressed and low and an action plan was formulated to motivate him to have a purpose to live for such as referral to commence his making amends programme and a referral to talking therapies to help assist with suicidal thoughts”. However, there is no evidence that any action plan was followed through. While this in itself does not necessarily undermine the evidence of an independent medical expert, issues were raised in the OASys Report which were at odds with what the Appellant told Ms Heke and should have engaged with this.
82. Dr Heke at para. 5.1.6 refers to the Appellant having engaged in self-injurious behaviour in the past; however, she did not have any evidence before her of this other than what the Appellant told her (save the Discharge Report which we deal with below and which relates to an incident in August 2020). The Appellant’s medical notes which were before Dr Heke do not support the Appellant having attempted to take his own life. They indicate that in July 2020 the Appellant was prescribed the lowest dose of Citalopram. There is no evidence from the prison/ probation services/ medical notes to support what the Appellant stated to Dr Heke about previous attempts to take his life. The medical notes (AB/133) support that the Appellant first visited his GP feeling depressed in June 2020. The notes do not disclose that the Appellant complained to his GP about attempts to take his own life or that he reported suicidal thoughts. It is reported by the GP that he felt low and stressed and reference is made to his immigration situation. The notes record that at that time he did not want to take medication but subsequently requested this is July 2020. The notes report that he was told to contact the crisis team should he feel suicidal. While the Appellant’s evidence to us was that he has more recently requested an increased dose of Citalopram, there was no evidence supporting this.
83. Dr Heke had a copy of a Discharge Report (AB/131) which establishes that the Appellant attended A & E on 10 August 2020 due to a threat of self-harm. The document states that, “mum found dressing gown cord around neck but no injury sustained has been felling (sic) low in mood has been taking prescribed anti-depressant”. He is described as having, “ongoing low mood with fleeting thoughts of suicide.” The risk assessment on discharge is reported as being “..medium as fleeting thoughts of suicide however now living at mother’s home address”. The Appellant’s evidence before us was that he was taken to the hospital having called an ambulance, contrary to what is recorded in the discharge summary, that his mother accompanied him to hospital. Mr Clarke’s position was that the Appellant and his mother had concocted the situation to bolster the Appellant’s case. We do not find that the evidence is a concoction. We would not go that far; however, we do have concerns about the significance of this incident. The Discharge Summary is the only contemporaneous medical evidence capable of supporting a threat of self-harm. While we appreciate the serious implications and do not wish to play this down, we note the Appellant’s own evidence was that he called the emergency services. We also note that the risk assessment was deemed as medium and that there is no evidence before us of any follow up by the hospital or a referral to the Community Mental Team suggested in the Discharge Summary. We note that the Appellant told Dr Heke that this occurred when his contact with L ceased. The point we are making is that Dr Heke describes three serious suicide attempts on which she bases her conclusions. However, she did not consider the lack of supporting evidence and evidence before her capable of undermining what the Appellant told her. We find that the incident in August 2020 was an isolated incident and there is no evidence that it was the third attempt by the Appellant to take his own life.
84. We would have expected Dr Heke to comment on the GP’S notes and the lack of evidence generally in support of the Appellant. We take into account the guidance given by the UT in HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 generally and specifically what is said about GP’s notes. We do not accept Mr Clarke’s submission that no weight should be attached to her evidence, but we find that the problems with her evidence which we have explained cause us to attach less weight to it than we otherwise may. However, we accept her diagnosis of severe PTSD. There were many reasons given by the expert supporting her conclusions which do not depend on the Appellant having previously attempted to take his life. We accept that the evidence establishes disrupted attachment between the Appellant and his mother due to her inability to provide unconditional nurture and care due to her being subjected to domestic violence and we accept that she has struggled with her own mental health problems. The Appellant is also a VOT and on any account he has experienced significant childhood trauma which supports a diagnosis of PTSD.
85. We accept that the Appellant has depression. We accept that this is caused in part from childhood experiences and in part by the possibility of returning to Nigeria. While we are not sure what “previous reports” Dr Heke refers to at 5.1.10 we accept that the Appellant has co-morbid anxiety which is “reactive to his subjective fears” of deportation. Given our concerns about the lack of evidence relating to suicide attempts we approach Dr Heke’s diagnosis of Major Depressive Disorder (MDD) with caution. Nevertheless we are satisfied that he is depressed. The symptoms identified by Dr Heke experienced by the Appellant which meet the diagnostic criteria for MDD according to Dr Heke include “recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan”(AB/109); however, we are concerned that this is based on an account of past suicide attempts and self-harm which are not supported by the evidence.
86. In the light of the credibility issues concerning the evidence of the Appellant and his mother, and the lack of evidence to support previous acts of self-harm/suicide attempts, we do not attach weight to the evidence of Dr Heke in respect of the extent of the Appellant’s depression and the risk of suicide. However, we do accept that he has serious mental health problems (PTSD, depression and anxiety) and that these are exacerbated by fear of return to Nigeria. We note that Dr Heke refers throughout her report to subjective fear of return and what may happen to the Appellant. There is no reason for us not to accept that the Appellant has a very real and genuine subjective fear of return to Nigeria. It is not surprising in the light of his childhood experiences.
87. We appreciate that the Appellant’s mother has experienced mental health problems and has suffered as a victim of domestic violence and having to separate from her children and that both she and the Appellant are extremely distressed at the possibility of the Appellant having to return to Nigeria, understandably so. We are satisfied that EL and the Appellant have exaggerated his suicidality. The Appellant’s evidence is of a history of self-harm and suicide attempts from 2014. We have already stated that this is not supported by the medical evidence. The Appellant’s response to gaps in evidence was that he thought everything would be documented and provided to the UT; however, this is a misconception under which his solicitors cannot have laboured and is not a reasonable explanation for the lack of evidence to support his claims. Moreover, the Appellant is on a low dose of medication. There is no support for his oral evidence that he has asked to increase the dose (there are no up to date medical notes) and there is no evidence that he has made attempts to make contact with the Community Mental Health Team or that a referral has been made by his GP. We do, however, accept that he has had some counselling, about which he gave an account in oral evidence.
88. While the Appellant has a subjective fear to return to Nigeria and whilst we accept that the combined effects of PTSD and depression carry an increased risk of suicide as stated in Dr Heke’s report at 5.5.2 (AB/114), there is insufficient evidence to show that the Appellant has made serious attempts to end his life or that he has self- harmed. We accept that there was an isolated incident when he called the emergency services. We find that the Appellant was reacting to problems with L’s mother. We do not accept that he currently represents a moderate risk of taking his own life. We do not accept that the evidence supports that there is a high risk of suicide in the event of the Appellant’s removal, either in the United Kingdom or Nigeria. We are mindful that the Appellant’s has serious mental health problems. However, he is currently taking medication which is available in Nigeria (this was not challenged by Ms Smith) and is supported by the background evidence.8
89. We find that the Appellant’s and his mother’s evidence was problematic in respect of C. While we have no doubt that C was returned to Nigeria by his mother when she was experiencing marital, financial and mental health problems as she described in oral evidence and we have no doubt that she regrets having sent him back there to be looked after by his grandmother, we are concerned about the lack of support for the assertions now made by Appellant and his mother about C’s experiences in Nigeria and the more recent evidence that he is in Ghana. The Appellant has claimed throughout his immigration history that he has no family in Nigeria. This is not true. Up until 4 November 2020, his grandmother was living in Nigeria as was C. The Appellant states that he was not aware of C’s whereabouts, but by then C had been in Nigeria 7 or 8 years. We do not find it credible that he would not have made enquires with his mother about his brother’s whereabouts. The Appellant and his mother have not been honest about family in Nigeria. In a letter of 13th November 2014 from the Appellant’s mother to the Respondent (RB/G) she stated that the Appellant has no other family anywhere outside the United Kingdom, which was untrue.
90. We are in no doubt that EL is very concerned about C and that she misses him and regrets sending him back to Nigeria, particularly if he has been attacked and/or owes money. However, we find that the Appellant and his mother have exaggerated the circumstances surrounding C. We are not satisfied that he is being pursued in the manner which they describe which forces him to keep moving around. We do not accept that he is now in Ghana. There was no evidence supporting this. What is clear is that C has a university degree funded by his mother. It is his mother’s evidence that he had to finish his degree in Benin for his own safety, but there is no corroboration of this which we would have reasonably expected. We note that EL has a sister in Nigeria. We had no evidence before us supporting C having been attacked in Nigeria. We note from the evidence that he lived with his grandmother before she died. It is not clear whether she owned property in Nigeria. EL’s evidence is that she is renting a flat for C in Magboro, Nigeria. While we understand that EL wants to be with her sons and worries about C in Nigeria especially since her mother passed away, we find that the evidence about C’s circumstances in Nigeria or Ghana is unsupported. Considering the evidence in the round, we find it not to be credible that he is being pursued or that he has left Ghana. We find that C is in Nigeria. He is a graduate. He is supported by his mother who pays the cost of his accommodation because he is finding it difficult to find employment despite his qualifications. (She has employment in the United Kingdom and her evidence is that her annual earnings are £39,000). Moreover, he is engaged to be married, according to his mother’s evidence.
91. The Appellant would not be returning to Nigeria without family. However, he will be devastated to be separated from his mother and son and we are in no doubt that this will exacerbate his mental health problems. However, we find that he would have the support of his brother, C. The evidence about his relationship with C was vague. He stated that there was no contact between the two for many years and now contact is sporadic. However, this does not sit with his evidence of devastation when C was returned to Nigeria. Despite the brothers not having lived together for some years, we do not accept the Appellant’s evidence which describes a distant relationship. We find that the Appellant on return to Nigeria would, like C, have the financial support of their mother. While C has also experienced a difficult childhood including having been trafficking, we have no medical evidence about his mental health. The fact that he has achieved academically would support that he has been less adversely effected. We find that he would be able to give the Appellant emotional and practical support so that the Appellant would be able to access treatment which would be available with the financial support of his mother.
92. It is now accepted by the Respondent that the Appellant was the victim of county lines drug trafficking.9 However, in respect of the CG decision, Mr Clarke drew our attention p21 of the CG decision to support a submission that the finding is limited to the Appellant having been trafficked as a child and not to this continuing into adulthood. He submitted that in the light of this, we should not go behind the comments of the sentencing judge because they relate to offences committed as an adult.
93. We understand Mr Clarke’s point about the CG decision which concerns the Appellant meeting the criteria in A and C and not having to meet the requirement in B because he was a child, therefore the decision makers did not agree that he was trafficked as an adult. The problem with the submission is that the conclusion of the report is that the Appellant was trafficked between 2011 and 2017 when he was well into adulthood. We are of the view that the CG decision is that the Appellant was a VOT into adulthood; however, concerning that weight to attach to the sentencing comments we make the following observations and findings.
94. When sentencing the Appellant the sentencing judge’s comments include that he had willingly chosen from a very young age (12) to lead a lawless lifestyle. Moreover the sentencing judge found that he had been engaged in cuckooing.10 We note that the sentencing remarks were before those responsible for CG decision, but they were not before the experts whose opinions were relied on.
95. The Appellant’s evidence before us was that he put forward mitigation at his criminal trial concerning others having put pressure on him. We reject this. It is clear from the judge’s sentencing remarks that the mitigation advanced on the Appellant’s behalf concerned his immigration status and that he was not permitted to work. The judge considered a letter from the Appellant to this effect. The Appellant stated that he told the police that he was working for another, but this is not supported by the evidence. The sentencing comments disclose that he exercised his right to remain silent when under caution. The Appellant’s evidence before us is at odds with the information from the CPS as recorded in the OASys Report (AB/310). We note that the Appellant told Ms Flint that “he told the police everything …. That he was being threatened, but was too scared to give them the name of the man aka John…” . While we accept that a VOT may reasonably delay disclosure, the Appellant has not been honest about when he first raised the issue. While there are barriers to disclosure, this Appellant has had many opportunities to disclose that he committed offences under pressure and has failed to do so until very recently. The Appellant has at no time stated to the probation service or raised in either criminal or immigration proceedings that he was put under any pressure from others to commit these offences let alone that he committed them under coercion or duress. He could have done so without disclosing the identity of “John”.
96. Dr McQuade’s report suffers from similar deficiencies to those of Ms Flint’s and Dr Heke report. None of them had sight of the RB and were not aware of the credibility issues arising or if they were there was no adequate engagement with them. Ms Flint and Dr McQuade attached weight to the report of Dr Heke which was problematic in itself for the reasons we have given. In any event, we accept the general conclusions concerning trafficking made by all. We accept the evidence of Ms Flint about trafficking generally. However, she has taken the Appellant’s account at face value. The Appellant told Ms Flint that he thinks “John” is less interested in him now because he is too old; however, he was not a child when he committed the latest offences. While the Appellant says that he has received threats via Snapchat, there is no evidence that he cannot screenshot without alerting ‘John” or capture the image in another way. When this was out to him by Mr Clarke, he stated that he had not thought about it. We do not find that this is a reasonable explanation.
97. We do not find the Appellant to be culpable for the crimes he committed as a child because he was a VOT. We are reluctant to conclude that the Appellant is not culpable for the crimes he committed as an adult; however, we accept that he was a VOT as a child and it cannot rationally be concluded that when he turned eighteen he suddenly stopped being a VOT and became wholly culpable for any wrongdoing. While we do not go behind the sentencing comments of the judge, we view them in the light of the CG decision and accept that there is mitigation that was not advanced at the time of the hearing; however, we emphasise that the Appellant as an adult bears significant culpability for the offences committed. As he matured, it became easier for him to extricate himself from county lines, which is supported by his own evidence that he has managed to disengage from John.
98. As a VOT we must address whether the Appellant is at risk of being re-trafficked. He is a vulnerable person with severe PTSD. Mr McQuade states that there is a strong possibility of the Appellant being exploited or re-trafficked. However, this is on the basis of a wholesale acceptance of everything that the Appellant has told him. He accepts that the Appellant will have no family and be destitute in Nigeria. We do not accept this for the reasons we have already given. We find that C would be able offer him some support in Nigeria and they can both rely on financial support from their mother in the United Kingdom. The Appellant will not be destitute and will be able to access medical treatment. On this basis, we accept that as a vulnerable person who is a VOT, there is a possibility of him being re-trafficked but there is insufficient evidence to show that there would be a real risk of re-trafficking such that it would lead to a breach of Article 3.
99. The Appellant will be devastated to leave his son, mother and the United Kingdom. He has a subjective fear of return to Nigeria. However, the evidence is that his brother and aunt are in Nigeria. There may be other family members there too. He will have family support and access to treatment. He will not be destitute. While we accept that his mental health will worsen on return we do not accept that he is at high risk of suicide for the reasons given. We do not accept that the Appellant has established that he meets the threshold for establishing Article 3 harm identified at [29] – [31] of the Supreme Court’s judgment in AM. We do not accept that he has raised a prima facie case. With reference to the guidance in AM (UKUT) we find that he has not discharged the burden of establishing that he is “a seriously ill person” and therefore he is unable to satisfy the first question of the initial threshold test. For all of the above reasons, we conclude that this Appellant cannot meet the high Article 3 threshold on any basis.
100. We now must consider Article 8. We are in no doubt that this Appellant has a genuine and subsisting relationship with L. The evidence of MB was not challenged. She gave oral evidence adopting her hand written statement which she submitted at the hearing. The Appellant is a keen, loving and active father who takes his parental responsibility seriously. He sees his son regularly. L spends every other weekend with his father and sometimes longer periods of time. We are in no doubt that it is in the best interests of L for the Appellant to remain in the United Kingdom and to continue to parent him. It was not suggested that it would not be unduly harsh for L to go to Nigeria. The thrust of Mr Clarke’s submissions was that it would not be unduly harsh on L in the context of s.117 (5) of the 2002 Act (Exception 2) for the Appellant to be separated from him as a result of the Appellant’s deportation. We agree with Mr Clarke. We take into account the decision of HA (Iraq) v Secretary of State [2020] EWCA Civ 1176 where Underhill LJ considered the “unduly harsh test” following KO (Nigeria) v SSHD 2018 UKSC 53:-
“The essential point is that the criterion of undue harshness sets a bar which is ‘elevated’ and carries a ‘much stronger emphasis’ than mere undesirability: see para. 27 of Lord Carnwath’s judgment, approving the UT’s self-direction in MK (Sierra Leone), and para. 35. The UT‘s self-direction uses a battery of synonyms and antonyms: although these should not be allowed to become a substitute for the statutory language, tribunals may find them of some assistance as a reminder of the elevated nature of the test. The reason why some degree of harshness is acceptable is that there is a strong public interest in the deportation of foreign criminals (including medium offenders): see para. 23. The underlying question for tribunals is whether the harshness which the deportation will cause for the partner and/or child is of a sufficiently elevated degree to outweigh that public interest.
However, while recognising the ‘elevated’ nature of the statutory test, it is important not to lose sight of the fact that the hurdle which it sets is not as high as that set by the test of ‘very compelling circumstances’ in section 117C (6). As Lord Carnwath points out in the second part of para. 23 of his judgment, disapproving IT (Jamaica), if that were so the position of medium offenders and their families would be no better than that of serious offenders. It follows that the observations in the case-law to the effect that it will be rare for the test of ‘very compelling circumstances’ to be satisfied have no application in this context (I have already made this point – see para. 34 above). The statutory intention is evidently that the hurdle representing the unacceptable impact on a partner or child should be set somewhere between the (low) level applying in the case of persons who are liable to ordinary immigration removal (see Lord Carnwath’s reference to section 117B (6) at the start of para. 23) and the (very high) level applying to serious offenders. There was nothing that was brought to our attention that would meet the unduly harsh test”.
101. The Appellant has been seeing his son regularly since he was released from prison. L visited him in prison. L is young. He has a strong bond with his father. However, there is nothing in our view capable of reaching the elevated threshold in this case when considering the impact on L of deportation. We do accept that the impact would be harsh, but not unduly so.
102. In respect of s.117C(4) (Exception 1), the Appellant cannot meet the first limb. However, we find that he is socially and culturally integrated into the United Kingdom. Mr Clarke submitted that he was not, as a result of his offending. However, we do not agree. The Appellant came here as a child in 2002. He has now been here for 20 years. He would meet the IR on private life grounds but for suitability as a result of is criminal conduct.11 He has been educated in the United Kingdom. He has family life with his child. He has a close relationship with his mother here who has limited leave to remain. We accept that the Appellant himself thought he was a British citizen like all his friends ( AB/11 para 29). It is credible that he did not realise he was not a British citizen until he was aged 17.
103. We have taken into account what the Court of Appeal said in CI ( Nigeria) v SSHD [2019] EWCA Civ 2027, specifically at para. 62 about the impact of offending:-
“Clearly, however, the impact of offending and imprisonment upon a person's integration in this country will depend not only on the nature and frequency of the offending, the length of time over which it takes place and the length of time spent in prison, but also on whether and how deeply the individual was socially and culturally integrated in the UK to begin with. In that regard, a person who has lived all or almost all his life in the UK, has been educated here, speaks no language other than (British) English and has no familiarity with any other society or culture will start with much deeper roots in this country than someone who has moved here at a later age. It is hard to see how criminal offending and imprisonment could ordinarily, by themselves and unless associated with the breakdown of relationships, destroy the social and cultural integration of someone whose entire social identity has been formed in the UK. No doubt it is for this reason that the current guidance (‘Criminality: Article 8 ECHR cases’) that Home Office staff are required to use in deciding whether the deportation of a foreign criminal would breach article 8 advises that:
‘If the person has been resident in the UK from a very early age it is unlikely that offending alone would mean a person is not socially and culturally integrated.’”
104. While the Appellant’s offending took place over a significant period from 2007 – 2017, he came to the United Kingdom at a young age. We accept that he is not culpable for the crimes he committed as a child because he was a VOT. He has developed a family life here. Before he started to commit criminal offences he was socially and culturally integrated. We find that the that the Appellant’s criminality does not sever his integrative links in the United Kingdom.
105. However, we do not find that there are very significant obstacles to integration applying the test in Kamara v SSHD [2016] EWCA Civ 813: -
“14. In my view, the concept of a foreign criminal’s ‘integration’ into the country to which it is proposed that he be deported, as set out in section 117C(4)(c) and paragraph 399A, is a broad one. It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a court or Tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual's private or family life.”
106. The Appellant left Nigeria at a very young age, twenty years ago. His mother’s evidence is that he came to the United Kingdom in in April of May 2002. He has been here for a significant period of time. Were it not for his offending, the IR would be satisfied on the basis of the Appellant’s private life.12 However, he has been raised by his mother, a Nigerian Citizen. While we accept that he may be perceived as “foreign,” we do not accept that he will be an outsider or unable to build up a private or family life in Nigeria. He will be supported by his brother. His brother was able to return to Nigeria, to study, and to form new relationships there. He has an aunt in Nigeria and his mother is Nigerian.
107. This Appellant is a serious offender having been sentenced to more than four years imprisonment. While his integrative links are relevant to a proportionality assessment, his appeal cannot be allowed unless he is able to establish that there are very compelling circumstances, over and above those described in Exception 1 and Exception 2. We have adopted the guidance given in NA (Pakistan) v SSHD [2016] EWCA Civ 662 (which was endorsed in HA).
”29. In our view, the reasoning of the Court of Appeal in JZ (Zambia) applies to those provisions. The phrase used in section 117C(6), in para. 398 of the 2014 rules and which we have held is to be read into section 117C(3) does not mean that a foreign criminal facing deportation is altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that ‘there are very compelling circumstances, over and above those described in Exceptions 1 and 2’. As we have indicated above, a foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paras. 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those Exceptions and those paragraphs, which made his claim based on Article 8 especially strong.
30. In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’, whether taken by themselves or in conjunction with other factors relevant to application of Article 8.
...
33. Although there is no 'exceptionality' requirement, it inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.
...
34. The best interests of children certainly carry great weight, as identified by Lord Kerr in HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25; [2013] 1 AC 338 at [145]. Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals. As Rafferty LJ observed in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 at [38]:
‘Neither the British nationality the Respondent’s children nor their likely separation from their father for a long time are exceptional circumstances which outweigh the public interest in his deportation.’
35. The Court of Appeal said in MF (Nigeria) that paras. 398 to 399A of the 2012 rules constituted a complete code. The same is true of the sections 117A-117D of the 2002 Act, read in conjunction with paras. 398 to 399A of the 2014 rules. The scheme of the Act and the rules together provide the following structure for deciding whether a foreign criminal can resist deportation on Article 8 grounds.
….”
108. The deportation of foreign criminals is in the public interest. The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. In this case the Appellant has been convicted of very serious offences. He has failed to rebut the presumption that he constitutes a danger to the community and is excluded from the Refugee Convention. Whilst mindful that we have to assess the Appellant’s risk at the date of the hearing before us, we also bear in mind that risk of re-offending is only one facet of the public interest. Deterrence or public revulsion are two others. For serious offences a low risk of re-offending is not the most important facet of the public interest (N  (Kenya) v SSHD [2004] EWCA Civ 1094. We take account of what Laws LJ said at [53] about proportionality in the case of foreign offenders in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998. Underhill LJ stated the following in HA [141]:
“… [T]he weight which [rehabilitation] will bear will vary from case to case, but it will rarely be of great weight bearing in mind that, as … the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern”. (emphasis added)
109. We are in no doubt that the test (for very compelling circumstances) is stringent and must be considered through the lens of s.117 of the 2002 Act.
110. The Appellant has committed serious offences over a significant period of time, since the age of 12. (The PNC printout discloses 30 convictions: 1 in 2008 for offences against property, 10 for theft and kindred between 2—7 – 2014, 1 public order offence in 2009, 3 relating to police/courts and prisons between 2014-2017, 10 drug offences between 2011-2017 and 5 convictions for miscellaneous offences between 2013 and 2017). He was not a model prisoner. The OASys assessment indicates that he has eight proven adjudications whilst in custody. However, the author of the report also states that he is willing to take full accountability for his offending and is aware of the risk arising from peers and that he stated that since having his son he feels that he has motivation to change as he wants to be there for his child. However, at that time he was still associating with criminals. It is stated that more work needed to be done to promote his level of motivation to deter from offending behaviour (AB/302). It is not apparent from the evidence that he has done any more work as envisaged by the author of the report. The Appellant according to the OASys Report presents a medium risk of harm to the public and a medium risk of re-offending. We note that the OGRS3 probability of proven reoffending is high in year 1 and year 2, but medium when broken down into proven non-violent and proven violent re-offending. The Appellant is approaching the end of the second year since his release. However, he is still on licence. We do not attach significant weight to the Appellant having not re-offended. With the heavy weight of deportation hanging over him and the prospect of returning to prison it is hardly surprising. We also take into account the letter from Hestia of 12 January 2022. The letter is from an allocated outreach advocate, Monica Barretto, who states that the Appellant has engaged well in therapy and attends all appointments. We accept this. However, it may have been more helpful to have had before us an up to date risk assessment from the probation service.
111. Overall we conclude that there are very compelling circumstances in the context of s117C (6) which tip the balance in the Appellant’s favour. We have no doubt that the Appellant is terrified of return to Nigeria. This has to be considered in the context of the diagnosis of severe PTSD and that he would be returning to the country where he was trafficked as a child. We attach weight to the assessment by Dr Heke of subjective fear. While the Appellant has not been entirely truthful, we are satisfied that he has a genuinely held fear of returning to Nigeria. We are satisfied that the genuine fear he has will have a detrimental effect on his already poor mental health should he be forced to return to Nigeria.
112. We are satisfied that fear of return to Nigeria and the close bond that he has with his son are protective factors which reduce the risk of the Appellant re-offending. While lack of status is no excuse for having committed such serious crimes, if the Appellant had status he would be able to work and or study. We find that this is protective a factor which is likely to reduce the risk of re-offending. We also accept that the Appellant has been receiving therapy, which is an acknowledgement of his mental health problem and that he is now taking medication. This is indicative of a change in attitude. We remind ourselves that rehabilitation is only one facet of the public interest.
113. While there are credibility issues relating to the Appellant and his mother’s evidence, we find that his offending must be considered in the light of his mental health and that he is a VOT. This accounts for his criminality as a child and mitigates his criminality as an adult. We do not find it against the Appellant that he did not raise having PTSD before in earlier proceedings. A late diagnosis does not undermine the condition or diagnosis. He is reasonably likely to have been suffering from PTSD at the time the offences were committed. He has, afterall, been trafficked on three discrete occasions during his life.
114. We are satisfied that the Appellant has a significant bond with his son and genuine intentions to be a good father. We had the benefit of hearing oral evidence from the child’s mother. It was very clear to us that this was far from a situation of the Appellant using his son to bolster his appeal. This was not, in any event, suggested by Mr Clarke. The Appellant has family life with his son, L. He has family life with his mother. While there is no family life with his mother in the Kugathas sense (Kugathas v SSHD [2003] EWCA Civ 31), we are satisfied that they are close. We are satisfied that she will be devastated by the Appellant’s deportation. She herself is a victim of serious domestic violence which caused her to flee Nigeria in the first place and to abandon her sons. While she and the Appellant have exaggerated their evidence and lacked credibility at times, they have both been victims of circumstances outside of their control, particularly the Appellant who can remember appalling abuse at the hands of those who trafficked him in Nigeria. By the age of seven the Appellant had been given away or sold by his father, abandoned by his mother and severely abused and ill- treated and held in domestic servitude. Once with his mother, he was safe from traffickers, but his childhood in the United Kingdom has been difficult. His mother’s marriage broke down and she was depressed and unable to cope. The Appellant and his mother’s relationship was strained until more recently. We accept that the Appellant was devastated when C was sent back to Nigeria. While she has limited leave, it was not suggested by Mr Clarke that EL could return to Nigeria. In any event, we note that she has been here in excess of twenty years.13 It would not be reasonable to expect her to return to Nigeria, the place where she was so seriously violently and sexually abused by her ex-husband, despite him no longer being there.
115. We have taken into account that the Appellant at some stage agreed to a facilitated return. However, we are satisfied that this does not detract from his vulnerability as a VOT. It may support our finding that C is in Nigeria and able to offer him a level of him.
116. The Appellant has been in the United Kingdom since 2002. But for his offending he would be entitled to ILR because to remove him would breach his right to private life on the basis of his long residence. He came to the United Kingdom as a child and is not responsible for entering unlawfully.
117. We do not find that the credibility issues in this case support an increased risk of re-offending. We are satisfied that the Appellant has a genuine fear of return to prison. He was seriously assaulted in a random attack while serving his last sentence. He has been the victim of a stabbing. While this kind of violence goes with the territory if you deal in drugs, we are in no doubt that this was traumatic for him. We find the Appellant’s evidence concerning his intentions to stay out of trouble and to be a good father credible. We had the benefit of hearing him give oral evidence. What is clear from the evidence generally is that the Appellant’s family and L’s mother’s family are supportive of the Appellant’s relationship with his son. EL has a relationship with her grandson. We find that this level of cross family support is a protective factor too.
118. We conclude that the breach of the Appellant’s right to private and family life outweighs the public interest in deportation. We have considered all factors in his favour cumulatively against the strong public interest in deportation and the factors at s.117 generally and specifically at 117C (1) and (2). We have found the assessment finely balanced. The Appellant will be left in no doubt that further offending will likely bring about another deportation order. Any court is likely to take a very dim view of further offending and it is difficult to envisage a successful challenge against a future deportation order following the commission of further offences.
119. We conclude that removal in consequence of the decision would be unlawful under section 6 of the Human Rights Act 1998.
Notice of Decision
The appeal is allowed on Article 8 grounds.
The appeal is dismissed on Article 3 grounds.

Signed Joanna McWilliam Date 22 June 2022
Upper Tribunal Judge McWilliam