Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005757

On appeal from HU/63493/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
13 March 2025

Before

UPPER TRIBUNAL GLEESON
DEPUTY UPPER TRIBUNAL JUDGE KIRK

Between

AR
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Andrew Eaton, instructed by Duncan Lewis Solicitors
For the Respondent: Mr Nick Wain, a Senior Home Office Presenting Officer

Heard at Field House on 12 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity and is to be referred to in these proceedings by the initials AR.

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.

DECISION AND REASONS

Introduction

1. The Appellant is a national of Ghana. She appeals against the decision of the First-tier Tribunal, dismissing her appeal against the respondent’s decision to refuse her human rights claim and maintain a deportation order made in July 1987 pursuant to the automatic deportation provisions of section 32(5) of the UK Borders Act 2007 (‘2007 Act’).

2. The Appellant is a foreign criminal within the meaning of section 32(1) of the 2007 Act following a conviction and sentencing in July 1987 to six years’ imprisonment for importation of class A drugs into the UK.

Background
3. The Appellant first entered the United Kingdom in the 1980s. She had been refused leave to enter the UK on several occasions, but successfully entered the UK on 6 December 1986 under a false name. On 26 January 2010, the Appellant completed a method of entry questionnaire and claimed to have obtained a visa for the UK from Accra in 1990 and that she left Ghana in June 1990.

4. During her time in the UK, the Appellant acquired a lengthy criminal record under 15 different identities.

Appellant’s criminal history
5. In July 1987, the Appellant was sentenced to six years’ imprisonment for importation of class A drugs into the UK. On 28 September 1988 a deportation order was made, but the Appellant absconded from immigration control before her deportation could be effected.
6. On 23 December 2013, the Appellant was convicted of three counts of having a false instrument with intent, three counts of obtaining property by deception, and four counts of dishonestly making false representations for gain. The criminal conduct that gave rise to the criminal conviction was benefit fraud in the amount of £98,000.
7. In addition, the Appellant used a false identity to engage in what the sentencing judge described as a ‘professionally planned mortgage fraud’ amounting to £251,245.
8. In January 2014, the Appellant was sentenced to 34 months’ imprisonment on the fraud and deception charges.
9. On 31 October 2014, a confiscation order in the amount of £143,500 was made, payable by 30 April 2015. On 12 September 2017, the Appellant was sentenced to a further 12 months’ imprisonment following her failure to pay the confiscation order.

Legislative framework
10. When a person who is not a British citizen is convicted in the UK of an offence for which he or she is sentenced to a period of imprisonment of at least 12 months, section 32(5) of the 2007 Act requires the Secretary of State to make a deportation order in respect of that person (referred to in the legislation as a "foreign criminal"), subject to section 33. Section 33 of the Act establishes certain Exceptions, one of which is that "removal of the foreign criminal in pursuance of the deportation order would breach… a person's Convention rights": see section 33(2)(a).
11. Foreign criminals are divided by section 117D into categories which include those with sentences of between one and four years imprisonment (medium offenders) and those sentenced to four years or more (serious offenders). The Appellant is a serious offender.
12. When considering whether deportation is justified as an interference with a person’s right to respect for private life and family life under Article 8(2) of the ECHR, section 117A(2) of the 2002 Act requires us to have regard to the ‘little weight’ provisions in s.117B(4) and (5), and in cases concerning the deportation of foreign criminals to the additional considerations in section 117C, subject to Exception 1, Exception 2 and the provisions section 117C(6).
13. The relevant parts of s.117C of the 2002 Act, provide:
(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.
The 2017 determination
14. Following the January 2014 sentencing, the Respondent again initiated deportation action. The Appellant appealed to the First-tier Tribunal, arguing that she was at risk because she had been perceived as a child witch by her local community. She relied on alleged mental health issues and on Article 8 ECHR generally.
15. On 9 January 2017, the First-tier Tribunal dismissed the Appellant’s international protection and human rights claims, finding that the Appellant was not a credible witness and had fabricated her claim (‘the 2017 determination’).
16. The central findings of the 2017 determination are as follows:
(1) Dismissal of the Appellant’s claim that she has a well-founded fear of persecution from her local community, who believe her to be a witch and responsible for the death of her father and mother for reason that:
(i) The Appellant’s claim of witchcraft and fear of persecution on return to Ghana was not credible (at [73])
(ii) The Appellant would not face an unduly harsh return to Ghana in breach of her human rights as she could receive financial support from her brothers and son, and she had two properties in London (at [111]).
(iii) There was effective State protection for victims accused of witchcraft in Ghana (at [114]).
(2) Dismissal of the Appellant’s Article 2 and 3 ECHR claims resulting from her mental health issues for reason that:
(i) The Appellant was not genuinely suffering from any mental health conditions (at [150]).
(ii) If she did suffer any mental health condition, she would have access to adequate health care services in Ghana (at [151-152]).
(c) Dismissal of the Appellant’s Article 8 ECHR claim based on her family ties in the UK.

17. Consistently with Devaseelan v Secretary of State for the Home Department [2002] UKAIT 702 (‘Devaseelan’) this is the ‘starting point’ for any subsequent First-tier Tribunal. The ‘starting point’ principle is not a legal straitjacket. It permits subsequent judicial fact-finders to depart from the earlier judicial decision on a principled and properly-reasoned basis. See R (on the application of MW) v Secretary of State for the Home Department (Fast track appeal: Devaseelan guidelines) [2019] UKUT 411 (IAC).

Deportation order

18. On 26 March 2018, the Appellant was served with removal directions set for 28 March 2018 and was detained

19. On 14 April 2022, the Appellant applied to revoke the deportation order, by reference to section 33 of the 2007 Act and section 117D of the 2002 Act (as amended), relying on both Article 3 and Article 8 of the ECHR. She submitted that her Article 8 ECHR rights would be breached if deported because there are very compelling circumstances in her case which outweigh the public interest in deportation. Under Article 3 ECHR, the Appellant submitted that she would suffer inhumane or degrading treatment if forcibly returned to Ghana.

20. On 31 October 2023 the Respondent refused to revoke the deportation order on the grounds .that she did not meet the threshold for the breach of her rights under Articles 3 or 8 of the ECHR.

21. The Appellant appealed to the First-tier Tribunal.

The 2024 decision

22. The Appellant claimed:
(1) Contrary to the findings in the 2017 determination, and in particular the rejection of the Appellant’s credibility, the Appellant would be accused of witchcraft and be at risk of serious harm in Ghana
(2) She suffered both severely poor mental health and several physical conditions and would be at significant risk of (i) suicide and/or (ii) severe suffering if returned to Ghana, inter alia because of her genuine subjective fear of harm
(3) Removal would disproportionately interfere with her private and family life, having regard in particular to (i) her reform and rehabilitation, (ii) her family in the UK, in particular her British citizen son, (iii) her other support networks in the UK, and the absence of any ties to Ghana, (iv) her medical vulnerability, (v) the risk of witchcraft accusations in Ghana and (vi) even in the absence of objective risk, her genuine subjective fear of harm in Ghana.

23. The Appellant’s claim was dismissed in its entirety; see [21]-[68] of the 2024 decision. The Judge rejected the Appellant’s account regarding her mental health on the basis of the medical records, and in particular that

(i) the Appellant had been inconsistent in general in her account of her past: see [25];
(ii) different healthcare professionals had given the Appellant different diagnoses, indicating that “she gives a varying account of her symptoms” (at [28]) and that
(iii) the Appellant’s refusal of medication was cynical, and arose because the Appellant knew that she did not in truth need that medication (at [29]).
24. When assessing the proportionality balance for the purposes of Article 8, the Judge found that the Appellant was not “rehabilitated”, stating:
“It is not that long since the appellant served a prison term for breach of the confiscation order and I am not satisfied that she is rehabilitated rather than that she has not seen the benefit to her in committing further crimes. I have found that she has committed crimes to further her own ends in the past and I consider that that risk is still present” (at [66(d)]).
25. The Appellant’s private and family life although existent, was minimal, and this was a “marginal case” (at [63]-[64]).

Permission to appeal to Upper Tribunal
26. The Appellant applied for permission to appeal to the Upper Tribunal on the following grounds:
(1) Failure to have regard to expert evidence on the Appellant’s mental health;
(2) Failure to have regard to evidence on the risk of re-offending; and
(3) Failure to have regard to Independent Social Worker (‘ISW’) evidence relevant to the Appellant’s private and family life.
27. Permission to appeal was granted on grounds 1 and 3, but not ground 2.
(1) The first ground is arguable - there had been a failure to demonstrate consideration of a recent assessment of the Appellant and the findings contained within the report
(2) The third ground is arguable – there had been no demonstration of engagement with the ISW report which could amount to a material error of law.

Upper Tribunal hearing and submissions
28. The oral and written submissions at the hearing are a matter of record and need not be set out in full here. We had access to all the documents before the First-tier Tribunal and the composite bundle filed by the Appellant.
29. We heard submissions from Mr Eaton for the Appellant and Mr Wain for the Respondent, which we have fully taken into account.
Discussion and analysis
Ground 1 – Failure to have regard to expert evidence on the Appellant’s mental health
30. The issue for our consideration is whether the Judge made a ‘Mibanga error’ in the 2024 decision by disbelieving expert evidence on the basis that the Appellant is an unreliable witness as had been found in the 2017 determination.
31. In Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 (‘Mibanga’) Wilson J explained the basis of this legal error:

“It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence.”
32. ‘The Mibanga duty’ to consider credibility “in the round” was explained in the guidance of this Tribunal in QC (verification of documents; Mibanga duty) China [2021] UKUT 33 (IAC) (‘QC (China)’):

“The Mibanga duty

(2) Credibility is not necessarily an essential component of a successful claim to be in need of international protection. Where credibility has a role to play, its relevance to the overall outcome will vary, depending on the nature of the case. What that relevance is to a particular claim needs to be established with some care by the judicial fact-finder. It is only once this is done that the practical application of the “Mibanga duty” to consider credibility “in the round” can be understood (Francois Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367). The significance of a piece of evidence that emanates from a third-party source may well depend upon what is at stake in terms of the individual’s credibility.
(3) What the case law reveals is that the judicial fact-finder has a duty to make his or her decision by reference to all the relevant evidence and needs to show in their decision that they have done so. The actual way in which the fact-finder goes about this task is a matter for them. As has been pointed out, one has to start somewhere. At the end of the day, what matters is whether the decision contains legally adequate reasons for the outcome. The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder’s overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome.”
33. In the 2024 decision, the Judge listed the medical and other expert evidence before the Tribunal, including that which was before the previous Tribunal in 2017 (at [11]-[13]), and stated at [14]:
“As can be seen from the vast number of reports and their length, it would not be helpful for me to cut and paste sections from all of these reports as this would result in an extremely long decision. I record here that I have read all of the reports and even if I do not make any further mention of them I have considered their contents.”

34. In relation to the Appellant’s mental ill-health, the Judge noted that both the 2017 determination and Dr Wooton’s report recorded that “… the appellant has given many different accounts of her history to different people over the years. These accounts are riddled with inconsistencies and omissions.” (at [25]). The Judge further considered the report of Dr Anton at [30] and found it to be “strong evidence … that the appellant cannot establish that she experiences hallucinations or psychosis.” The Judge then made the following concluding observations in relation to the overall credibility of the Appellant’s evidence at [32]-[33]:

“As a result of the inconsistencies, the omissions, the discrepancies in the wider background context it is very difficult to determine the appellant's true situation. I consider that Dr Wootton’s report recognises this. I consider that the appellant is manipulative and there are various aspects to this claim which Judge James fully identified which shows that she is prepared to do whatever it takes to further her own ends.

Taking all of the evidence before me into consideration I am prepared to accept that the appellant suffers from some mental ill health. She has received varying diagnosis. I consider that her references to hallucinations are not reliable and I am not satisfied that these are not being used to artificially bolster her claims. She is prescribed an anti- psychotic but on her own account she takes a half dose or not at all much of the time. Being prescribed something does not mean one actually needs it or takes it. In relation to PTSD, for the reasons set out below I do not accept the appellant suffered the abuse arising from the witchcraft allegations, and I am not prepared to accept that she suffers from PTSD symptoms in relation to these. Overall I am not satisfied that the appellant suffers from PTSD but I am prepared to accept that she may suffer from some symptoms which matched those which can be experienced by people who suffer PTSD. In summary, I accept that the appellant has some mental ill health largely relating to trauma but I also considered that she has exaggerated her mental ill health.”

35. We are satisfied that the Judge did not fall into the legal error described in the grounds because, consistently with the approach required by Mibanga, that is to say, she did not reach a conclusion on credibility before having regard to the expert evidence.
Ground 2 – Failure to have regard to evidence on risk of re-offending
36. Permission was not granted on ground 2. Even if it had been, it would not have availed the appellant.
37. When determining whether the Judge has made an error of law, we have had regard to Volpi & Anor v Volpi [2022] EWCA Civ 464 (‘Volpi’) at [2] in the judgment of Lord Justice Lewison (with whom Lord Justices Males and Snowden agreed):

“2. …iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
38. Having regard to the guidance in Volpi, we approach this appeal on the basis that the Judge did have regard to all the evidence before her, including Dr Roberts’ report.
Ground 3 – Failure to have regard to ISW evidence relevant to family and private life
39. The Judge accepted that the Appellant has a private and family life in the UK but considered it to be a “marginal case” (at [63]-[64). She accepted that there is “financial dependency” by the Appellant on her son, and noted he is employed and “by all accounts he has his own separate life to her.” The Judge did not mention the closeness of the relationship between the Appellant and her son, nor the Appellant’s reliance on her son for practical and emotional support and for her psychological health, and his reliance on her for his well-being. The ISW report states:

“There is already a strain on [the Appellant’s] and [her son’s] relationship due to the current circumstances, therefore it is highly likely that if [the Appellant] is deported, this will worsen and have a detrimental impact on their closeness. This will be exacerbated by the distance between them and limited contact, as well as [the Appellant] missing out on significant events in [her son’s] life in the future.

There will also be more financial pressure and responsibility on [her son] for his mother’s wellbeing as there will no longer be any community support, which is highly likely to have a detrimental impact on his own mental health. [The Appellant] will also struggle to meet her basic needs, especially during times of mental and physical health deterioration and there will be further financial burden on [her son] to try and support [the Appellant] with accommodation, basic amenities, food and paying for treatment and support (if able to access any).

This will result in further mental and physical health deterioration for [the Appellant] and exceptional financial pressures for [her son]. Even if there was no additional financial burden on [her son], it’s evident from the assessment that [the Appellant] and [her son] care for each other deeply and want to be in the UK together as they would both be deeply concerned for each other if separated. Therefore if they were apart it will impact both their wellbeing as [her son] wants to be able to look after his mother, see her continued recovery and have her as a consistent and active part of his life and for [the Appellant] separation is likely to lead to suicidal actions, as [her son] is her purpose in life. Subsequently there is a co-dependency between them that requires them both to be safe and well to allow for the others’ enhanced wellbeing.”

40. The Judge included the ISW report in the list of reports before the Tribunal at [12] but did not refer to it further in the two paragraphs of the decision in which consideration was given to the Appellant’s family and private life (at [63]-[64]). Again, applying the Volpi guidance, we do not consider that the Appellant has shown that the Judge overlooked the ISW evidence.
41. The weight to be given to evidence such as the ISW report is a matter for the Judge. As we are not satisfied that the Judge’s conclusion was ‘rationally insupportable’ or ‘plainly wrong’ we find that there is no error of law. The decision of the First-tier Tribunal is upheld.

Notice of Decision

42. The making of the First-tier Tribunal decision involved no error of law. We do not set aside the decision but order that it shall stand.

Linda Kirk
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 6 March 2025