Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000549
First-tier Tribunal No: PA/01207/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

11th June 2025

Before

UPPER TRIBUNAL JUDGE LANE
DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Appellant
and

HECTOR DA CONEICAO LOPES
(No Anonymity Order Made)
Respondent

Representation:
For the Appellant: Mr K Ojo, Senior Home Office Presenting Officer
For the Respondent: Ms E Stewart King, Counsel, instructed by Duncan Lewis Solicitors

Heard at Field House on 20 May 2025

DECISION AND REASONS
Introduction
1. The appellant is the Secretary of State and the respondent (‘the claimant’) is Mr Lopes who alleges he is stateless. The Secretary of State believes the claimant to be Angolan. The claimant states that his date of birth is 22 September 1969. The Secretary of State believes it to be either 25 January 1966 or 3 July 1974. Both the claimant’s nationality and date of birth are therefore at issue. The parties are agreed that the claimant is not entitled to Portuguese nationality and that the claimant, who has used multiple false identities, is as named above.
2. The claimant’s immigration history is set out in the decision of First-tier Tribunal Judge Baffa (‘the judge’) at paragraphs [4]-[16]. The claimant appealed against the Secretary of State’s decision dated 10 September 2020 (with a supplemental undated decision issued pursuant to directions of the First-tier Tribunal issued on 27 May 2022) to refuse to revoke the Deportation Order (served on the claimant on 22 January 2018) and to refuse the claimant’s protection and human rights claim.
3. The claimant was sentenced on 6 March 2014 to eight years imprisonment, for wounding with intent to do grievous bodily harm. His appeal against the decision was initially allowed by First-tier Tribunal Judge Bird, in a decision promulgated on 28 February 2023, with the First-tier Tribunal finding the claimant to be stateless. The Secretary of State successfully appealed to the Upper Tribunal, with the remitted appeal coming before Judge Baffa. In a decision promulgated on 30 December 2024, following a hearing on 28 August 2024, the judge allowed the claimant’s appeal finding that he was stateless and in the alternative that there were very compelling circumstances which outweighed the strong public interest in deportation.
4. Permission to appeal was granted by First-tier Tribunal Judge Handler, on 28 January 2025, on two grounds. Ground 1, argued that the judge had taken too narrow an approach in respect of AS (Guinea) v SSHD [2018] EWCA Civ 2234 (‘AS (Guinea)’) in finding that the claimant was not under an obligation to apply for nationality, was arguable. It was also arguable that judge had not provided adequate reasons for the lack of weight given to a document which appeared to be an acceptance of the claimant’s Angolan nationality. It was further arguable that the judge had not given adequate reasons for finding that the claimant had taken all practical steps, when the correspondence from the Angolan authorities indicated that the claimant could make enquiries with the Central Registry Office in Luanda, in order to verify his birth certificate and the claimant had not done so.
5. Ground 2, that the judge had not adequately explained what the very compelling circumstances were, was also arguable. It was arguable that because the judge had not set out the extent to which the Exceptions to section 117C of the Nationality, Immigration and Asylum Act 2002 were met, with no finding that the claimant is socially and culturally integrated in the UK, the judge’s reasons for finding very compelling circumstances were inadequate.
6. The matter came before us to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and thus whether the decision should be set aside.
Ground 1
7. We have considered the submissions before us, including in the Rule 24 Reply, dated 20 March 2025 and orally. We note what is said, as relied on by Ms Stuart King, in ‘Appendix Statelessness’ to the Immigration Rules that:
‘S3.2. The applicant must have taken all reasonable steps, but nonetheless failed to:
(a) acquire, or re-acquire, nationality with the competent authorities of any relevant countries;
…
S 3.4. The applicant must have obtained and submitted all reasonably available evidence to show they meet the requirements in S 3.1. and S 3.2 and, if the applicant is a child, S 3.3.’
8. The required standard is on the balance of probabilities and there is no prescriptive requirement under Appendix Statelessness for an applicant to have made a formal application for nationality, and to have received a refusal.
9. In AS (Guinea) the Court of Appeal reviewed the relevant principles in relation to statelessness, concluding as follows at paragraph [57]:
‘These authorities reveal a consistent line of reasoning. The person claiming to be stateless must take all reasonably practical steps to gather together and submit all documents and other materials which evidence his or her identity and residence in the state or states in issue, and which otherwise bear upon his or her nationality. The applicant ought also to apply for nationality of the state or states with which he or she has the closest connection. Generally, these are steps that can be taken without any risk. If, in the words of Elias LJ, the applicant comes up against a brick wall then, depending on the reasons given, the adjudicator will decide whether the applicant has established statelessness, and will do so on the balance of probabilities….’
10. We consider that Judge Baffa misdirected himself in his approach to statelessness and materially erred in finding, at paragraph [115], that the claimant had taken all reasonably practicable steps to gather together and submit all documents/materials which evidence his identity/residence in the state in issue, and which otherwise bear upon his nationality.
11. In focusing too narrowly on the Secretary of State’s reliance on an undated and redacted letter from the Angolan consulate which confirmed the claimant is an Angolan citizen, referred to at [69] of the decision, and in subsequently attaching no ‘meaningful weight’ to that letter due to the redaction, the judge appears to have lost sight of the fact that the burden of proof was on the claimant, to demonstrate on balance that he had taken all reasonably practicable steps.
Birth certificate
12. In considering whether the judge provided adequate reasons for finding that the claimant had taken all reasonably practicable steps to establish his identity, we are troubled by the judge’s reasoning in relation to the claimant’s birth certificate and the verification of that document by the Angolan authorities.
13. The judge at [109] found that the claimant’s birth certificate was reliable and that his date of birth was 22 September 1969 as claimed. The judge had considered, at [108] the Secretary of State’s conclusion in the supplementary refusal letter, that little weight could be attached to the claimant’s birth certificate. The judge further considered the evidence of the claimant’s sister and the expert Dr Amundsen who in an updated report dated 21 August 2024, summarised at [53] of the decision, concluded that the birth certificate was ‘most probably genuine (more than 75 per cent certainty)’. Whilst the judge acknowledged the claimant’s poor immigration history, including the use of false documents, the judge went on to find that:
‘there was nothing placed before me to suggest or support a possible contention that the birth certificate was not genuine’.
14. However, as the judge acknowledged in the following sentence, the Angolan consulate does not accept the birth certificate. Whilst the judge found that ‘this does not mean that it is not reliable’ and purported to consider matters in the round, the findings are silent on the exact nature of the Angolan consulate’s concerns and the impact of those concerns, in the round.
15. As the judge set out at [65] the Angolan consulate in a letter dated 26 January 2022 responding to an application for a travel document by the claimant (relying on 22 September 1969 as his date of birth), could not issue any document to prove the claimant’s Angolan nationality, noting that the ‘data provided do not comply with the necessary requirements to confirm his Angolan nationality or even the nationality of the parents’ and that ‘the copy of the birth certificate provided is not eligible and certified’.
16. The judge at [66] and [67] set out further correspondence between the claimant’s representatives and the Angolan consulate. The claimant’s representative (on 18 June 2024) asked the Angolan consulate a number of questions, including whether the Angolan consulate accepted that the claimant’s birth certificate was a genuine document. The Angolan consulate replied to that question, in a response dated 15 July 2024:
‘The conditions under which the birth certificate was presented to us are not genuine enough to verify its authenticity, for this reason we reiterate the position presented in our official note of January 26, 2022…’.
17. At [70] and [71] the judge considers further correspondence between the claimant’s representatives, dated 6 August 2024 and the Angolan consulate, who replied on 27 August 2024. The following questions were asked:
“1. Are you able generally to verify the authenticity of birth certificates issued when Angola was part of Portuguese territory ?
2. Do the Portuguese authorities hold records of birth from that time, and if so, is it reasonably practicable for those records to be examined? Are you able to confirm that our client’s sister would have been able to obtain a copy of the birth certificate from the Registo Civil (registry office) in Lagoa, Algarve and that, what she was provided with, would have been a reliable document?
3. If records are held, is there a reason why our client’s birth certificate cannot be checked against those records?
4. Are there any features of the birth certificate presented by our client that suggest it is not a document genuinely issued by the Portuguese authorities prior to independence?
18. The judge at [71] sets out the Angolan consulate’s 27 August 2024 reply:
“1- Yes, verifying the authenticity of birth certificates issued before independence is possible.
2- Yes, the Angola authorities have held birth certificate records from that time. Some records are still preserved, and others were destroyed by the war before independence. We did not understand this question: 'And if so, is it reasonably practicable for those records to be examined.'
3- If there are records, the certificate can be verified. We did not receive information from the Central Registry Office in Luanda when we requested it. However, we recommend that the interested party request it in these cases.
4- An erasure is one of the main characteristics. (see attached).”
19. Although the judge found at [109] that the fact that ‘the Angolan consulate does not accept the birth certificate’ did not mean that it was not reliable, that finding erroneously fails to address the clear concerns of the Angolan consulate that there were features of the claimant’s birth certificate that suggested it was not a document genuinely issued by the Portuguese authorities prior to independence because ‘an erasure is one of the main characteristics’.
20. In the skeleton argument submitted to the First-tier Tribunal on behalf of the claimant, Ms Stuart King identified that the first issue was whether or not the claimant is or is not entitled to Angolan nationality. In the submissions that followed, Ms Stuart King relied on the evidence produced by the claimant as to his identity and submitted that the Secretary of State’s assertions in relation to the issue had been unreliable and stated that at no time had the Secretary of State challenged the claimant’s documents including his birth certificate, as being forgeries or otherwise unreliable.
21. Ms Stuart King submitted at paragraph 19 of her skeleton that the Angolan consulate had confirmed by email dated 27 August 2024 that the reason the claimant’s birth certificate could not be verified, is that at one point the number ‘6’ in the date of birth of 1969 appears to be overwritten: Ms Stuart King submitted that the same date was written elsewhere in the document and not similarly affected.
22. The key issue for the judge however, in considering the claimant’s nationality and whether he was stateless, was not whether the Secretary of State had challenged the claimant’s birth certificate as unreliable, but whether the claimant had taken all reasonably practicable steps to gather and submit all documents/materials evidencing his nationality.
23. A barrier to the Angolan consulate confirming or refuting that the claimant is Angolan is clearly identified by the Angolan consulate as the claimant’s birth certificate. The judge took into consideration the expert evidence that supported a finding that the claimant was not Angolan and that the birth certificate was genuine. However, although the judge set out the correspondence with the Angolan consulate earlier in his decision, he fell into error in failing to make specific findings in respect of the Angolan consulate’s confirmation that the conditions under which the birth certificate was presented were ‘not genuine enough to verify its authenticity’ or any findings on the particular issue identified, in relation to the number ‘6’ being overwritten in the 1969 date of birth.
24. Whist Ms Stuart King’s answer to these concerns in her written submissions to the First-tier Tribunal, was that the same date was written elsewhere in the birth certificate document and is not similarly affected, the supplementary report of Dr Amundsen is silent in relation to the Angolan consulate’s views on the document’s authenticity.
25. Although Dr Amundsen listed in that report the documents considered, which included email correspondence between the Angolan consulate and the claimant’s representatives, Dr Amundsen’s supplementary report is dated 21 August 2024, which is before the 27 August 2024 email where the Angolan consulate specifically detailed concerns about ‘erasure’ being ‘one of the main characteristics’ in terms of features which suggest that the document was not genuinely issued.
26. The judge fails to grapple with these issues, and whether, for example, the concerns expressed by the Angolan consulate, and the fact that Dr Amundsen’s supplementary report pre-dated the final piece of correspondence, impacted the weight to be attached to that report.
27. We consider that it was not open therefore to the judge to dismiss the concerns of the Angolan consulate for the summary reasons he gave at [109].
28. We consider that error to be compounded by the judge’s lack of reasoning in relation to the claimant’s failure to make enquiries with the Central Registry Office in Luanda in order to verify his birth certificate, as recommended by the Angolan consulate (reproduced in the judge’s decision and at paragraph [18] above) at point 3 of their 27 August 2024 response.
29. Whilst it was the Rule 24 submission on behalf of the claimant, that it was ‘unreasonable’ for the Secretary of State to assert that it was reasonable for the claimant to make enquiries at the Central Registry Office in Luanda, the judge materially erred in not considering this issue at all, in both dismissing the concerns of the Angolan consulate at [109], as not meaning that the birth certificate was unreliable, and in finding at [115] that the claimant had taken all reasonably practicable steps, in relation to Angolan nationality.
30. Whilst it was Ms Stuart King’s position that to follow up on this evidence would have necessitated an adjournment (there was no indication that any request for an adjournment was made, where such might be considered part of the reasonable steps required given the new information the day before the hearing) and that there was no basis on which the claimant or the Tribunal could assume he would get a different response, the First-tier Tribunal erred in not reaching any findings at all in relation to this key issue.
31. We disagree with Ms Stuart King’s submission that this was not a reasonable step for the claimant to take. Contrary to her submission that there was no basis on which the claimant/the Tribunal could assume that the claimant would get a different response, the Angolan consulate specifically stated on 27 August 2024, both that there were birth certificate records held from when Angola was part of Portuguese territory, and that if there are records ‘the certificate can be verified’. Crucially, the Angola consulate whilst indicating they had not received information from the Central Registry Office in Luanda when they requested it, went on to state:
‘However, we recommend that the interested party request it in these cases’
32. It is unclear therefore how the claimant can purport to rely on the Angola consulate’s own failure to obtain such information, when the same body specifically recommended that the interested party (i.e., the claimant) ‘request it in these cases’; which in our view refers to cases where the Angolan consulate has been unsuccessful in obtaining information. It is difficult to see why the Angolan consulate would make such a recommendation in ‘these cases’ if, as submitted on the claimant’s behalf, there was no basis on which it could be assumed the claimant would get a different response.
33. These are all factors which the judge ‘s decision is silent on. Whilst there is of course no requirement for the First-tier Tribunal to rehearse every detail or issue raised, the issue of the claimant’s birth certificate and nationality is central to the claimant’s case, and the judge fell into error in not giving reasons in relation to the verification of the birth certificate with the Central Registry of Luanda, as recommended by the Angolan consulate. That error is material, as it cannot be said that the judge must have reached the same conclusion, in relation to both the claimant’s birth certificate and whether reasonably practicable steps had been taken, had he considered this issue.
Reasonably practicable steps
34. Whilst the Rule 24 response relied on the fact that the Secretary of State had not asserted that the birth certificate was fraudulent, the relevant issue is the judge’s reasoning, or lack thereof, in relation to whether it was a reasonable step for the claimant to approach the Central Registry Office in Luanda, particularly in circumstances where the Angolan consulate had confirmed that such verification was possible. Whilst the claimant provided an expert report, this is not determinative and, as we have noted, predated the recommendation for the claimant to approach the authorities in Luanda.
35. The judge, at [115] in placing no meaningful weight upon the redacted undated letter relied on by the Secretary of State, which states that the claimant is an Angolan citizen, effectively reversed the burden of proof. The Angolan consulate had accepted that the claimant was Angolan. Whilst the judge notes that the responses from the Angolan consulate have been conflicting and that they had confirmed an error in a date of birth given previously, this did not signify that the Angolan consulate’s acceptance of the claimant’s Angolan citizenship should be disregarded, but rather that there were further reasonably practicable steps that the claimant should have undertaken including in seeking to verify his birth certificate with the Central Registry Office in Luanda.
36. The judge’s approach to verification of the birth certificate is sufficient in our view to make out ground 1. The judge’s findings in relation to AS (Guinea) are also problematic. Whilst the judge interpreted the learning that a claimant ‘ought’ to apply for nationality, as not a ‘must’ where the judge fell into error, was in finding that there ‘was no point in applying for Angolan nationality’ having had regard to the correspondence from the Angolan consulate in relation to the avenues to apply for nationality, and the expert opinion given by Dr Amundsen.
37. As conceded by Ms Stuart King in oral submissions to the Upper Tribunal, whilst the Angolan consulate sets out, at paragraph 3 of the 15 July 2024 correspondence, the avenues for acquiring Angolan citizenship (which Mr Stuart King states, including relying on Dr Amundsen’s reports, indicate that the claimant would not be eligible given his particular circumstances), the letter does not specifically state that the claimant would not be accepted as an Angolan citizen.
38. Whilst Ms Stuart King submitted that the Secretary of State did not dispute Dr Amundsen’s evidence or the claimant’s account that he left Angola in 1974, in considering whether the claimant ought to have applied to the Angolan authorities, the judge misdirected himself in his interpretation of AS (Guinea). In circumstances where the Angolan consulate had recommended that the claimant request verification of his birth certificate from the Central Registry of Luanda, and the claimant has not done so, and where he has not applied for nationality/a passport (although Ms Stuart King told the Upper Tribunal that her instructions were that he had made such an application, she conceded that this was not documented and we note that there was no such information before the First-tier Tribunal) it cannot be said that the claimant has come ‘up against a brick wall’.
39. Judge Baffa’s interpretation of AS (Guinea) is not consistent with a proper reading of Lord Kitchin’s guidance: this provides that in addition to taking all reasonably practicable steps to gather/submit documents etc, an applicant ought also to apply for nationality of the state and that generally these are steps that can be taken without any risk. In any event, the claimant did not have an extant protection claim (paragraph [29]) and therefore this was not a case where a risk of harm had to be factored in, when considering what steps could readily be taken.
40. We do not agree with Ms Stuart King that given the respondent’s own guidance on applying for statelessness and that the standard of proof is the balance of probabilities, that this obviates the need for the claimant to make an application for citizenship/a passport. The, at times, conflicting responses from the Angolan consulate underline the importance of an applicant in the claimant’s position making all reasonable efforts to gather the available evidence and making an appropriate application for citizenship. AS (Guinea) at paragraph [46] provides that if an applicant is unable to take the necessary steps for good reason, then the Secretary of State will assist the applicant and undertake research/make the necessary enquiries:
‘There is therefore no need to speculate as to whether a person is or is not stateless; that person’s status can be ascertained’.
41. The judge fell into material error therefore in the findings reached at [117] which were not open to him on the available evidence.
Ground 2
42. Having found that the claimant was stateless and that his appeal should be allowed, at [118], the judge in the alternative considered the issue of very compelling circumstances from paragraphs [121] to [125]. The judge had set out the legal framework at [89] to [95] and the relevant tests to be applied, including the jurisprudence and the assessment required, from [96] to [105].
43. We consider the judge fell into further material error in failing to provide adequate reasons for finding, in conducting the test for very compelling circumstances, that the balance tipped ‘heavily’ in favour of the claimant.
44. The judge at [94] had identified that a foreign criminal sentenced to more than four years imprisonment, as was the case for this claimant, was not prevented from relying on features of the exceptions identified in sections 117C(4) and (5) of the Nationality, Immigration and Asylum Act 2002 and that the claimant must be able ‘to point to factors identified in Exceptions 1 and 2 of an especially compelling kind, which by themselves or together with other factors outweigh the public interest in deportation.’
45. However, having made the appropriate self-directions, the judge then failed to consider or make any findings in relation to Exception 1, the private life exception (it was not in issue that Exception 2, the family life exception, has no applicability in the claimant’s case).
46. Whilst there is no specific requirement that the Tribunal undertake this assessment in every case (either in cases where an claimant fails to meet the requirements of the exceptions, or, as is the case for this claimant, because he has been sentenced to a term of 4 years of more), in the circumstances of the case before the First-tier Tribunal, without an assessment by the judge of why the claimant did not meet the relevant requirements of Exception 1, the judge fell into error in failing to provide adequate reasons for the conclusions he ultimately reached that there were very compelling circumstances over and above the circumstances described in Exception 1.
47. Such an assessment: ‘may provide a helpful basis on which an assessment can be made whether there are very compelling circumstances over and above those described in Exceptions 1 and 2’ (NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ (662).
48. Exception 1 contains three elements: that an offender has been ‘lawfully resident’ in the UK for most of their life; that the offender is socially and culturally integrated in the UK; and that there would be very significant obstacles to the offender’s integration into the proposed country of removal.
49. Whilst the judge set out the correct tests and jurisprudence earlier in his decision, without clear findings in relation to why the claimant did not meet Exception 1, the judge has failed to carry out the detailed analysis of the claimant’s circumstances required by those authorities, which ought to have included in this case whether or not he is socially and culturally integrated in the UK.
50. Whilst the judge found that the claimant has been in the UK for 30 years, and stated twice at [122], that the claimant had no ties in Angola, and that there was ‘no evidence that he could become socially or culturally integrated within a reasonable time’ in Angola, without an assessment under Exception 1 the judge’s reasoning, which fails to address the claimant’s social and/or cultural integration in the UK, is flawed.
51. This error is material, including as the judge goes on to find that issues facing the claimant in Angola ‘relate to the appellant’s mental health and ability to connect with others to form a private life within a reasonable period of time’. In circumstances where there are no meaningful findings in relation to the claimant’s private life in the UK, other than a finding that he has not committed any further offences and that he suffers from the mental health conditions set out in a medical report provided by Dr Galappathi, the judge’s findings in relation to the claimant’s private life, including his mental health in Angola, are made in a vacuum.
52. Whilst the judge’s reasoning focusses primarily on the claimant’s mental health, in circumstances where the judge acknowledges at [123] that (whilst argued in the skeleton argument before the First-tier Tribunal) the claimant did not seek to advance an Article 3 health claim, it was incumbent on the judge to provide adequate reasoning why the circumstances were very compelling, to the extent that the appeal succeeded on Article 8 grounds. Without any such adequate reasoning, it is insufficient to rely, as the Rule 24 effectively seeks to do in terms, on the judge’s finding that the claimant’s personal circumstances ‘tip heavily in favour’ in the balance against deportation.
53. Further, notwithstanding the judge’s acceptance of the medical and other expert evidence before him in relation to the claimant’s mental health and what the judge finds to be the lack of appropriate mental health services in Angola, the reader is left without a clear understanding of the judge’s reasons in relation to the effect on the claimant’s health of returning to Angola.
54. The judge also factors in the claimant’s favour, that he had not committed any more offences. Whilst a reduced risk of re-offending will result in a reduced public interest in deportation, the supreme Court in HA (Iraq) v SSHD [2020] EWCA Civ 1176 drew a distinction between a case where there is evidence of positive rehabilitation and where, as appears to be the judge’s findings in the claimant’s case, no further offences have been committed. In such a case the lack of further offences is likely to be of little if any material weight.
55. The reasoning of the First-tier Tribunal fails to disclose that the judge had properly balanced the ‘great weight’ that should generally be given to the public interest in this case.
56. Ground 2 is therefore also made out. In terms of disposal we have considered what was said in AEB [2022] EWCA Civ 1512 and Begum [2023] UKUT 46 (IAC). The claimant has yet to take the reasonably practicable steps envisaged in AS Guinea and we agree with the previous decision of the Upper Tribunal in the claimant’s case, promulgated on 23 April 2024, which set aside the decision of First-tier Tribunal Judge Bird, that the claimant has a continuing burden to apply for an Angolan passport. Given this and that the reasonable steps required include in our view the claimant verifying his birth certificate with the Central Registry Office in Luanda, the nature and extent of the fact finding that will then be required renders it appropriate to remit this appeal to be re-heard in the First-tier Tribunal, other than before Judge Baffa or Judge Bird.
Decision:
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. We set aside the decision, with no findings preserved. The appeal is remitted to the First-tier Tribunal.

M M Hutchinson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Date: 2 June 2025