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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2023002515 [2024] UKAITUR UI2023002515 (8 February 2024)
URL: http://www.bailii.org/uk/cases/UKAITUR/2024/UI2023002515.html
Cite as: [2024] UKAITUR UI2023002515
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-002515
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First-tier Tribunal No: HU/52682/2022 LH/01217/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 8 th of February 2024
Before
UPPER TRIBUNAL JUDGE SMITH
Between
L K
[ANONYMITY DIRECTION MADE]
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr P Nath, Counsel instructed by Starck Uberoi Solicitors
For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer
Heard at Field House on Wednesday 24 January 2024
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant (LK) 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 .
DECISION AND REASONS
BACKGROUND
1. By a decision promulgated on 15 December 2023, I found an error of law in the decision of First-tier Tribunal Judge G Clarke itself dated 21 June 2023 which had dismissed the Appellant's appeal on protection and human rights (Article 3 ECHR) grounds but allowed the appeal on human rights (Article 8 ECHR) grounds on the basis of the Appellant's private life and a finding that he would face very significant obstacles to integration in Angola which is the intended destination of return. My error of law decision is annexed hereto for ease of reference.
2. Judge Clarke's finding in relation to very significant obstacles was itself predicated on a finding that the Appellant is stateless as it has not been established that he is a national of Angola. Although the Appellant accepts that he was born in Angola to parents who were both Angolan, he says that the family left there when he was aged ten years, that his birth was not registered there, that he has no documents to establish his nationality and that the Angolan authorities do not recognise him as one of their nationals.
3. The Respondent challenged the finding of statelessness on the basis that the Appellant (who bears the burden of proof in this regard) has to show not only that he is not in fact an Angolan national but also, as a matter of law, that he is not entitled to that nationality. It was on the basis of the Judge's failure to consider that latter question that I found an error of law (see in particular [29] and [30] of my error of law decision).
4. Having accepted that the Respondent had made out her grounds of challenge, I set aside the part of Judge Clarke's decision allowing the appeal on Article 8 ECHR grounds. However, since there was no cross-appeal by the Appellant in relation to the dismissal of his appeal on protection, humanitarian protection and Article 3 ECHR grounds, I preserved the findings made by Judge Clarke and the dismissal of the Appellant's appeal on those grounds.
5. Having set aside [63] to [64], [67] to [68] and [99] onwards of Judge Clarke's decision, I gave directions for the appeal to come back before me for a resumed hearing with directions for the Respondent to file with the Tribunal a decision dated 31 March 2016 refusing the Appellant's application for leave to remain as a stateless person, for the Appellant to provide further evidence if he wished to do so and for a resumed hearing.
6. So it was that the appeal came back before me on 24 January. I need say no more about the Respondent's decision dated 31 March 2016. That was filed with the Tribunal albeit somewhat belatedly but, as Ms Gilmour accepted, the application for leave to remain as a stateless person was refused only on the basis that the Appellant is the subject of a deportation order and is therefore not entitled to leave on that basis.
7. The Appellant filed a further statement dated 18 December 2023 which I come to below when dealing with the evidence. In addition to that evidence, I had a bundle before me which also included the Appellant's bundle before the First-tier Tribunal ([AB/xx]) and the Respondent's bundle before the First-tier Tribunal.
8. My directions required an interpreter to be booked for the hearing. Although the Appellant's solicitor asked for a French speaker of African dialect, it was not possible to find one. A native French (European) speaker was therefore booked. It was confirmed by the Appellant and the interpreter that they understood each other and there were no problems of interpretation.
9. Having heard evidence from the Appellant and submissions from Mr Nath and Ms Gilmour, I indicated that I would reserve my decision and provide that in writing which I now turn to do.
LEGAL FRAMEWORK
10. The only issue left for me to determine is whether the Appellant's removal to Angola would breach the Appellant's Article 8 ECHR right to respect for his private life. The Appellant does not claim to have established a family life. He has no partner or child in the UK.
11. The Appellant was convicted on 16 July 2007 of possessing an identity document relating to someone else with intent. He was sentenced to twelve months in prison and recommended for deportation.
12. In light of that conviction and sentence, the Appellant falls within the definition of a "foreign criminal". As such, in order to succeed, he has to show that he meets section 117C Nationality, Immigration and Asylum Act 2002 ("Section 117C").
13. Section 117C comprises two exceptions. Only the first of those exceptions is potentially applicable as follows:
"(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."
14. It is common ground that the Appellant has not been lawfully resident in the UK for most of his life. Although he has lived here since 2007, he has never had any permission to do so. Ms Gilmour did not concede the second issue. She says that the Appellant has not shown that he is socially and culturally integrated in the UK. The third issue is the one on which I found there to be an error of law made by Judge Clarke. The issue is whether there would be very significant obstacles to the Appellant's integration in Angola.
15. The test in this regard was considered by the Court of Appeal in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 (" Kamara") as follows:
16. As the Appellant cannot meet Section 117C(4) (exception 1) due at the very least to his lack of lawful right to remain in the UK, in order to succeed he has to show that there are very compelling circumstances over and above that and the other exception in order to succeed (Section 117C(6)). Whilst on the face of that provision, it applies only to those sentenced to four years or more, the Court of Appeal in NA (Pakistan) and others v Secretary of State for the Home Department [2016] EWCA Civ 662 (" NA (Pakistan)") held that it applies equally to those who are "medium" offenders (ie sentenced to twelve months but under four years) who are unable to meet the entirety of one of the exceptions (see in that regard [27] of the judgment).
17. The Court of Appeal also explained in NA (Pakistan) how Section 117C(6) is intended to operate in relation to medium offenders as follows:
...
18. As I have already mentioned, the error found to have been made by Judge Clarke related to his finding that the Appellant is stateless.
19. The case to which I was taken in that regard is AS (Guinea) v Secretary of State for the Home Department (UNHCR intervening) [2018] EWCA Civ 2234 ( AS (Guinea). As the Court of Appeal concluded in that case, the burden of establishing statelessness is on the person claiming to be stateless and is to a standard of the balance of probabilities ([59]).
20. Some reliance was placed on AS (Guinea) by both parties. I cite the main paragraph relied upon as follows:
"57. These authorities reveal a consistent line of reasoning. A person claiming to be stateless must take all reasonably practicable 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. Of course, from time to time, there may be cases where it would not be reasonable to expect the applicant to take this course, and in those cases the Secretary of State will assist the applicant by making enquiries on his or her behalf but again there is no reason why the issue of statelessness cannot be decided on the balance of probabilities....."
21. Although I did not understand Mr Nath to dispute what I said at [20] and [21] of my error of law decision, the point that statelessness must be established as a matter of law as well as fact emerges from what is said at [52] of the judgment by reference to the judgment of Sales J (as he then was) in R (oao Nhamo) v Secretary of State for the Home Department [2012] EWHC 422. What is there said is also relevant to this case in relation to the evidence which is required to establish statelessness (as I come to below).
EVIDENCE
22. The Appellant has provided two witness statements in this appeal which he adopted in evidence. The first, dated 19 January 2023 appears at [AB/2-10]. The second prepared for the hearing before me is dated 18 December 2023.
23. I have read both statements, the enclosures to the second statement and the Appellant's bundle, but I refer only to those parts which are relevant to the issues I have to decide. Similarly, I have noted all the Appellant's oral evidence but refer only to what is relevant to the remaining issues.
24. In his first statement, the Appellant says that he was born in Bahilondo, Angola. He was born in March 1970. His birth was not registered and therefore he does not have a birth certificate. The Appellant confirmed in his oral evidence that both his parents were Angolan.
25. When the Appellant was aged five years, war broke out and, when the Appellant was aged ten years, he left Angola with his family and moved to the Ivory Coast. He has never returned to Angola.
26. I do not need to deal with the evidence about the family's status and circumstances in Ivory Coast. There is no suggestion that the Respondent intends to return the Appellant there. However, whilst in the Ivory Coast and living apart from his family (as he was now an adult), civil war broke out there (in September 2002). The Appellant says that he learned that his father was dead and that his mother, brother and sister had been separated and were missing.
27. The Appellant says that he has never seen his family again. The Appellant says later in his first statement that his mother committed suicide due to his father's death, that his brother was killed, and his sister was killed or remains missing. It is not entirely clear to me how the Appellant knows this if, as he says, he has had no contact with his family since 2002. However, he said in his oral evidence that he had tried to make contact with his remaining family via the Red Cross and had also searched for his sister on the internet without success. As was pointed out in his evidence, his case is that any family he might still have would in any event be in the Ivory Coast and not Angola.
28. The Appellant admitted in his oral evidence that he had a girlfriend in Ivory Coast with whom he had a child. That is not mentioned in his witness statement.
29. The Appellant left the Ivory Coast in 2003, having lived there for 22 years, and travelled to Slovakia. He travelled from there to the UK in 2007 using what he says was an identity document belonging to a friend. He was aged 37 years when he arrived. It was his use of the Slovakian ID document when he tried to leave the UK which led to his criminal conviction in July 2007.
30. The Appellant claimed asylum in July 2007. That claim was refused, and his appeal dismissed in a decision promulgated on 10 April 2008. He no longer pursues any protection claim.
31. The Appellant suffers from mental health issues. It is appropriate at this juncture to refer to the findings of Judge Clarke in this regard which appear in a section of his decision which I did not set aside:
"47. I find that the medical evidence does not support the GP's assertion that the Appellant has 'severe stress' or that he suffers from major depression, PTSD, low mood and anxiety as assessed by Dr Persaud. In my view, the conservative management of the Appellant's treatment does not accord with someone with severe mental health problems.
48. However, I accept that the Appellant has a history of mental illness and suffers some stress to some degree and so I found that the Joint Presidential Guidance, Note No. 2 of 2010 on Child, Vulnerable Adult and Sensitive Appellant Guidance applied. The practical implication is that I have made allowances for the Appellant on the basis of his mental health.
49. During the hearing, the Appellant gave evidence of having been prescribed medication for his mental health problems in the past but these made him sleepy and so they were discontinued. He is not prescribed any medication for his mental health. He also described being referred to mental health services in the past. I accept his evidence as the GP records indicate such a referral but the current position is that he is not on any medication for his mental health and not under any specialist care or receiving any treatment for his mental health."
32. There is no updated medical evidence before me. Those findings were made following a hearing in April 2023. I was not asked by Mr Nath to treat the Appellant as a vulnerable witness when giving his evidence. As I will come to below, however, the Appellant did become noticeably anxious when dealing with one aspect of his evidence which suggests that he continues to have mental health problems.
33. The Appellant points out in his statement that he has never committed any offences since the one of which he was convicted in 2007. He complains that he has been criminalised by the Home Office ever since. The Appellant says that his offence was borne out of a mistake for which he continues to be punished.
34. The Appellant also says that he has been the victim of the "hostile environment". He applied to remain in 2010 based on marriage but this was refused. He has been unable to work whether on a voluntary or paid basis. In relation to his ties to the UK, he says that this is "the only home [he] know[s]" ([15]). He says that he has "a family with respect to the French African community in London and around the UK". He has no family, friends or ties in any other country. I observe that I have no evidence from any of the Appellant's friends.
35. In relation to return to Angola, the Appellant says that he has no knowledge of that country, no family or friends, no home or support. He says that he does not speak Portuguese. He accepted in his oral evidence that he spoke Portuguese until the age of ten years but said he no longer speaks it. He had lived in the Ivory Coast for twenty-two years. He gave his evidence in French.
36. Turning then to the Appellant's claim to be stateless, he refers in his first statement to two occasions when he was taken to the Angolan Embassy by the Home Office to complete an interview for an emergency travel document. I can pick up the evidence about this in Judge Clarke's decision at [59] to [62] (which paragraphs were not set aside) as follows:
"59. The Appellant maintains that he is effectively stateless as the Angolan Embassy on 2 occasions have refused to recognise him as an Angolan national. In his 2023 Witness Statement at Paragraph 8, the Appellant writes:
'... On 22 nd May 2008 and 17 th April 2009, I was escorted by a Home Office representative to the Angolan Embassy to obtain travel documents and on both occasions the applications were denied as they did not recognise me as a citizen.'
60. Within the Appellant's bundle there are GCID - Case Record Sheets from the Home Office which confirm that following the refusal of the Appellant's claim on 10 th April 2018 by the First Tier Tribunal, an ETD was submitted to the Angolan authorities on 22 nd April 2008. The following records are relevant:
'On 22.04.08 an application for an ETD (emergency travel document) was submitted to the Angolan authorities. The ETD application is still outstanding and no official decision has been made on the ETD to date, despite many requests for an update from RDGU.
On 17.04.09, [LK] attended an ETD (emergency travel document) interview with the Angolan authorities. The ETD application is still outstanding and no official decision has been made on the ETD to date despite many requests for an update from RDGU.
On 10 th August 2011 a second nationality interview was completed, photographs and fingerprints obtained'.
61. I note that this CSID, which is dated 31 st October 2014, describes the Appellant as a 'low harm, low removability case' and that the case is 'currently held in abeyance'.
62. There is also a record of a Home Office caseworker speaking with the Immigration Officer who attended with the Appellant at the Angolan Embassy on 17 th April 2009 and the Immigration Official spoke to an official at the Angolan Embassy, a Mr Mattias Rose, and it is recorded, ' ..Mr Rose stated that he had reviewed this case before and he had previously informed RGDU that the subject was not an Angolan national...'"
37. I turn then to the Appellant's second statement which updates the evidence in relation to this issue as follows:
"1. Further to the Directions of Upper Tribunal Judge Smith on 31.10.23 I hereby confirm that I wrote (with the help of my legal representative) to the Angolan Embassy on 17 November 2023 via email to ascertain how I could go about obtaining an Angolan passport.
2. I received a response on 27 November 2023 which was in Portuguese. I do not know how to speak Portuguese and therefore was able to attend the Citizens Advice Bureau to obtain a translation as to what the Embassy has responded with:
3. I was informed of the following:
a. no records were found in the Citizen Database in my name or on behalf of my parents.
b. for me to provide my birth certificate in order for the application process to be started; and
c. for me to explain what documents I left Angola with.
4. I do not have my birth certificate and as I was only 10 years old when I left Angola, I have no documents that I left with and I cannot even remember as I was a child at the time.
5. This is the information I can currently provide - I possess nothing that would trace or link me to Angola."
38. The documents annexed to the statement are an exchange of emails between the Appellant and the Vice-Consul of the Angolan Embassy between 17 and 27 November 2023. The email from the Embassy dated 22 November is not translated. The translation dated 27 November (which is possibly an email translation sent by the Appellant to his solicitor) is not of the same email.
39. The Appellant was asked in the course of his oral evidence for evidence that he had supplied the information which appears to be requested by the Embassy in the (untranslated) email dated 22 November 2023 (full name, date of birth, place of birth, place of registration of birth and full names and dates of birth of the Appellant's parents).
40. The Appellant said that he had provided that information to the Embassy and had sent the email exchanges to his solicitor. An email demonstrating that the information had been sent was not in the email exchange before the Tribunal. This prompted a short adjournment so that the Appellant and Mr Nath could contact the solicitor for a copy of the email which the Appellant said he had sent.
41. When the Appellant and Mr Nath returned, I was told that the email to which the Appellant referred could not be traced. It appears that messages in the chain as sent may have been deleted by mistake. The Appellant became quite agitated about the missing evidence. I am however prepared to accept that he had provided that information to the Embassy not least because the email dated 27 November 2023 appears to show that the Embassy had indicated that no records were found of the Appellant or in the names of his parents. I recognise that I do not have the Portuguese version of this email but, on the other hand, that also tends to suggest that I do not have the complete email exchange and supports the Appellant's evidence that emails have gone missing.
42. There is no evidence before me dealing with the provisions of Angolan nationality law.
FINDINGS AND DISCUSSION
Statelessness
43. Ms Gilmour accepted that the facts in AS (Guinea) were different. There had not in that case been a refusal of an emergency travel document ("ETD"). However, she submitted that this in isolation did not show that the Appellant was not a national of Angola. She relied on AS (Guinea) as establishing that the burden is on the Appellant to show on a balance of probabilities that he is not entitled to the nationality of Angola. That would require him to show not simply that he is not currently recognised as a national but also that he could not apply to be registered as such.
44. Mr Nath said that the steps taken by the Appellant were sufficient to meet his burden of proof. He had, as it was put in AS (Guinea) (at [57] of the judgment) hit a brick wall. The Appellant could not apply for a passport as he did not have a birth certificate.
45. As Mr Nath accepted, the Appellant has provided no evidence that he would not be entitled to register as a national of Angola if he tried to do so. He accepts that he was born there of Angolan parents.
46. The fact that the authorities may not currently have any record of the Appellant or his parents is perhaps unsurprising since the family left there in 1980 and there has been an internal conflict which may have led to the loss or destruction of records. I do not need to speculate because it is for the Appellant to show on the balance of probabilities that he would be unable to apply for nationality in those circumstances. In the absence of any evidence about the nationality laws of Angola and whether the Appellant would be entitled to be registered as an Angolan national on the facts of his case, he has not met that burden.
Section 117C(4) - Exception 1
47. It is common ground that the Appellant cannot meet this exception in full. He has not lived in the UK lawfully for most of his life. In fact, he has not lived in the UK unlawfully for most of his life either. He did not come to the UK until the age of thirty-seven, having spent ten years in Angola, twenty-two in the Ivory Coast and the remainder in Europe (it appears Slovakia).
48. In relation to social and cultural integration in the UK, I have no evidence from those with whom the Appellant has friendships in the UK. It is notable that he said that his friends were amongst the French African community in the UK.
49. I accept that the Appellant may have wished to work in the UK had he been able to do so but he has not done so and therefore cannot point to any integration in that way.
50. The Appellant gave his evidence in French. He may speak some English given the time he has spent here but I have little evidence about that.
51. I am prepared to accept that the Appellant may have friendship ties in the UK given the time he has spent here, and he may currently view this country as his home. The fact remains however that he grew up in Angola and the Ivory Coast and spent longer in the Ivory Coast than he has here.
52. There is simply not enough evidence for me to find that the Appellant is socially and culturally integrated in the UK. Although I accept that Judge Clarke found there to be "some evidence of cultural integration", that is at [109] of his decision which is not one of the findings I preserved. Moreover, what is there said is inconsistent with or has changed from the evidence before me (in terms of employment and a relationship on which the Appellant no longer relies).
53. I turn then to the issue of very significant obstacles to integration in Angola. This is, I accept, the high point of the Appellant's case.
54. In relation to obstacles to integration, I found the Appellant's evidence to be credible. I accept he has no contact with any family which remains. Even if the Appellant may have retained some contact with them after he left Ivory Coast (which may be how he knows what happened to his mother and brother), I accept that he no longer has any contact with his sister, former girlfriend or child.
55. Even if the Appellant did have contact with any of those persons, it would not avail him. They were last all living in Ivory Coast. There is no evidence that he has any family remaining in Angola.
56. The Appellant has been out of Angola since 1980 - a period of over forty years. I accept that the Appellant might be able to pick up the Portuguese language again as that must have been his mother tongue and no doubt his parents continued to speak it after they left Angola. However, the Appellant's later education will have been conducted in French which is the language spoken in Ivory Coast and the language he now speaks. He associates with those from the French African community in the UK.
57. The Appellant will have some measure of understanding how society used to operate when he lived in Angola even though he was only a child. However, that was prior to the war in Angola, and much is likely to have changed with or without a conflict in the lengthy period since he left.
58. The Appellant has never worked in Angola. His later education would have been in Ivory Coast and not Angola. I have no evidence about what skills the Appellant may or may not have to obtain employment, but I accept that he would find it very difficult indeed to find employment in a country where he has never worked, where he was only educated to the age of ten years and where he has no family support.
59. If the Appellant is unable to obtain employment, it is difficult to see how he would find accommodation. I have no evidence about the area from which the Appellant comes. It may be a rural area where people would help the Appellant to integrate. On the other hand, given the passage of time, it is difficult to conceive that those who lived in his home area forty years ago are still likely to be there let alone remember the Appellant and his family.
60. The problems which the Appellant would face on return to Angola would, I find, be exacerbated by his mental health problems. Although I do not accept that those are as serious as suggested by Mr Nath in his submissions, based on the findings made by Judge Clarke, I accept that the Appellant suffers from mental health problems, including stress and anxiety.
61. Of course, it is for the Appellant to show that there are very significant obstacles to his integration. However, given the combination of the factors set out above and bearing in mind the high threshold which applies, I accept that the Appellant has shown that such very significant obstacles exist to his integration in Angola.
Very Compelling Circumstances Over and Above the Exceptions
62. The finding that there are very significant obstacles to integration does not entitle the Appellant to succeed without more as he is unable to meet the first exception in Section 117C(4) for the reasons I have set out.
63. In relation to the additional factors, I leave out of account the issue of statelessness. As I have pointed out, although I appreciate that it may be difficult for the Appellant to be returned to Angola, he has not shown that he is not entitled to be registered as an Angolan national. I have to proceed on the basis of a hypothetical removal to Angola whether or not that is something which the Respondent ultimately will be able to achieve.
64. Mr Nath relied on the Appellant's health. He drew my attention to the medical evidence at [AB/37-71] and [AB/106-11]. However, that has to be read in the context of Judge Clarke's findings about the Appellant's health which I did not set aside and which are cited at [31] above. I take into account the finding made that the Appellant suffers from some mental illness and stress. I have commented on the anxiety shown by the Appellant in the course of his evidence. However, I have no evidence that the Appellant is receiving treatment for his mental health problems. He was not receiving treatment at the time of the hearing before Judge Clarke and I have no updated evidence in that regard.
65. Mr Nath mentioned that the Appellant had an operation on his lungs last year. However, I have no evidence about that, and limited evidence about any lung condition. I have no information whether the operation has successfully dealt with whatever was the underlying health condition nor what is the longer-term prognosis.
66. When considering the very significant obstacles which I have found to exist to the Appellant's integration in Angola under the heading of Section 117C(6), I have to take into account the public interest.
67. As was said in NA (Pakistan) (as cited at [17] above), very strong reasons are required to outweigh the high public interest in deportation. I accept that there is a public interest in the deportation of foreign criminals (Section 117C(1)). That public interest is not however to be given fixed weight. As is said at Section 117C(2) "[t]he more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of a criminal". The weight to be given to it has to be considered on the facts of the instant case.
68. In this case, the Appellant's criminal offence was a significant time ago (nearly seventeen years ago). He has not offended since. Whilst offences involving use of another person's identity documents are serious and have a wider impact on illegal migration and therefore on the public interest in countering illegal migration, the offence which the Appellant committed was use of a friend's document for his own purposes to travel to and attempted travel out of the UK on one occasion. I give the public interest less weight in this case because of the nature of the offence, the sentence and the passage of time since.
69. On the other hand, the Appellant has remained in the UK unlawfully for the past seventeen years. That is contrary to the public interest in the maintenance of effective immigration control.
70. I accept as Mr Nath submitted that the Appellant has been trying to show that he is unable to return to Angola. I accept that at present he has been unable to establish that he is a national of that country to the Angolan authorities. That position is reinforced by the Respondent's inability thus far to obtain an ETD for the Appellant.
71. The Appellant is not a national of Ivory Coast and although he lived there for twenty-two years, I do not know whether the authorities of that country would allow him to return. It is not suggested by the Respondent that the Appellant could be returned there. He does not appear to have had any permanent status there which would entitle him to do so. In those circumstances, he may have had little option but to remain in the UK.
72. I will assume for the purposes of the balancing assessment that the Appellant speaks English and is financially independent. There is some evidence that he does speak English. Whilst I do not know how the Appellant has been supporting himself as he has been unable to work, I have no evidence that he has been supported by the State. I accept as Ms Gilmour pointed out that the Appellant has been using the NHS for medical treatment and that is use of public resources. There is no evidence that he has paid for those services.
73. As was accepted by the Court of Appeal in NA (Pakistan), a foreign criminal is able to rely on factors falling within the exceptions in Section 117C(4) and/or Section 117C(5) when relying on there being compelling circumstances over and above those exceptions. It is not necessary for there to be factors additional to the factors within the exceptions.
74. In this case, I am considering the exception based on the Appellant's private life. Whilst he has spent some time in the UK (seventeen years), I have not accepted that the Appellant is socially and culturally integrated in the UK due to lack of evidence. It is for the Appellant to demonstrate the weight which should be given to his private life. Applying Section 117B(4) and (5), the Appellant's private life is deserving of little weight in any event as it was formed at a time when he was in the UK unlawfully or with precarious status.
75. However, the issue under Article 8 ECHR is whether the interference which would be caused by deportation is disproportionate and it is here that I consider the very compelling circumstances in the Appellant's case lie. I have found that there are very significant obstacles to the Appellant's integration in the only country to which return is presently envisaged, namely Angola. I do not repeat what I have already said about my reasons for reaching that finding. However, that reasoning demonstrates the very significant interference which there would be with the Appellant's Article 8 rights were he to be returned to Angola.
76. Mindful of the high threshold encompassed in both the test of very significant obstacles and the requirement for very compelling circumstances over and above the Section 117C(4) exception (which is not met in any event in this case), I have nonetheless reached the conclusion that, when the interference with the Appellant's Article 8 rights is balanced against the public interest in this case (as explained above), deportation would be disproportionate. To put it in the terms expressed in NA (Pakistan) (at 94), the Appellant's case in relation to the very significant obstacles which exist to integration in Angola is sufficiently strong to outweigh the high public interest in deportation.
77. For those reasons, the Appellant succeeds on human rights (Article 8) grounds.
NOTICE OF DECISION
The appeal is allowed on human rights (Article 8 ECHR) grounds
L K Smith
Upper Tribunal Judge Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber
6 February 2024
APPENDIX: ERROR OF LAW DECISION
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-002515
|
|
|
First-tier Tribunal No: HU/52682/2022 LH/01217/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
.........15 December 2023...
Before
UPPER TRIBUNAL JUDGE SMITH
Between
SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and
L K
[ANONYMITY DIRECTION MADE]
Respondent
Representation :
For the Appellant: Ms S Cunha, Senior Home Office Presenting Officer
For the Respondent: Mr P Nath, Counsel instructed by Starck Uberoi Solicitors
Heard at Field House on Monday 30 October 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant (LK) 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 .
DECISION AND REASONS
BACKGROUND
1. This is an appeal brought by the Secretary of State for the Home Department. For ease of reference, I refer to the parties as they were before the First-tier Tribunal. The Respondent appeals against the decision of First-tier Tribunal Judge G Clarke dated 21 June 2023 ("the Decision") allowing the Appellant's appeal against the Respondent's decision dated 10 April 2022 refusing his protection and human rights claim. That claim was made in the context of a decision to deport the Appellant to Angola.
2. The Appellant first came to the attention of the UK authorities on 1 July 2007 following an arrest for attempting to leave the UK using a Slovakian identity card to which he was not entitled. He claimed to have arrived in the UK on 16 March 2007. He claimed at that stage that he was a dual national of Angola and Sierra Leone but had lived in Slovakia for the previous five years. On 16 July 2007, the Appellant was convicted of possessing an identity document relating to someone else with intent. He was sentenced to twelve months in prison and recommended for deportation.
3. The Appellant claimed asylum on 2 July 2007. His claim was refused on 16 February 2008. He was notified of his liability to deportation on 26 February 2008 and he appealed against that decision on protection and human rights grounds. His appeal was dismissed on 8 April 2008 on all grounds by the Asylum and Immigration Tribunal (Immigration Judge Grimmett and Mr R Hamilton) ("the Previous Decision"). The Tribunal found that the Appellant would not be at risk on return to Angola and that his deportation would not breach his human rights. It was noted that, at that time, he had family in the Ivory Coast and a girlfriend in Russia. The Appellant's attempts to challenge the Previous Decision failed and his appeal rights were exhausted on 14 May 2008. On 20 May 2008, a deportation order was signed.
4. On 17 November 2013, the Appellant made submissions asserting that he could not return to Angola as he would be at risk there on the basis that he does not speak Portuguese, would be considered to be a rebel of the Cabinda and also because he suffered from chronic health problems. Those are the subject of the decision which is now under appeal. Between the submissions and the appeal, the Appellant also made an application for leave to remain claiming to be stateless. That application was refused on 31 March 2016. The Appellant did not seek to appeal that decision.
5. Judge Clarke found that the Appellant would not be at risk on return to Angola on the basis he claimed ([88] to [92] of the Decision). There has been no challenge to that finding by the Appellant. The Judge also found that removal would not breach the Appellant's Article 3 ECHR rights based on his medical condition ([98] of the Decision). Again, the Appellant has not sought to challenge that finding.
6. The Judge then went on to consider Article 8 ECHR. The Judge did not accept that the family life exception applies due to the lack of any evidence as to a relationship in the UK ([101] to [104] of the Decision). The Appellant has not challenged that finding.
7. In relation to the Appellant's private life, the Judge found that he could not meet the exception in this regard due to lack of lawful residence throughout his stay. He could not meet the first limb of the exception. The Judge accepted at [109] of the Decision that "[t]here [was] some evidence of social integration". He also accepted that the Appellant would face very significant obstacles to his integration in Angola ([110]).
8. Although the Appellant cannot meet the private life exception in relation to deportation, the Judge's findings in relation to very significant obstacles feeds into his overall conclusion that there would be very compelling circumstances over and above the exceptions to deportation and forms the starting point to the Respondent's challenge to the Decision.
9. The Judge's acceptance of very significant obstacles relies on the Appellant's time out of Angola, that he has no support network there as he has no family there and that he would not obtain any benefits from the Angolan State ([111] to [113]).
10. When considering whether there would be very compelling circumstances over and above the exceptions, the Judge also found that the Appellant "is effectively stateless" ([116]). He said it was this which "amounts to a very compelling circumstance". His finding was based on travel document interviews which the Appellant had at the Respondent's behest with the Angolan embassy and the Angolan Embassy's refusal to accept that the Appellant is an Angolan national ([117] of the Decision). He concluded at [122] of the Decision that the Appellant's statelessness "and the other factors [he had] mentioned amount to very compelling circumstances". He therefore allowed the appeal on Article 8 grounds.
11. The Respondent challenges the Judge's finding that the Appellant is stateless. She relies in this regard on the case of AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234 (" AS (Guinea)") in particular at [57] of the judgment. She submits that the Judge has found that the Appellant is stateless without evidence that the Appellant had taken the steps there set out.
12. Permission to appeal was granted by First-tier Tribunal Judge I D Boyes on 7 July 2023 in the following terms so far as relevant:
"..3. Permission is granted. The SSHD is entitled to have her case and her arguments scrutinised and if rejected an explanation as to why they were not accepted. The SSHD posits that an applicant must show they have, in effect, exhausted all avenues of enquiry and/or shown that such nationality is not available to them. It is arguable neither has happened in this case and there is no valid explanation by the Judge as to why, inter alia, the operation of Angolan law excludes the appellant from being considered a national...."
13. The matter comes before me to decide whether the Decision contains an error of law. If I conclude that it does, I must then decide whether to set aside the Decision in consequence. If I do so, I must then go to on re-make the decision or remit the appeal to the First-tier Tribunal for re-making.
14. I had before me a core bundle of documents relevant to the appeal and the Appellant's and Respondent's bundles before the First-tier Tribunal. I do not need to refer to any of the documents at this stage as the Judge has summarised or set out the evidence relevant to the issue at hand in the Decision.
15. Having heard submissions from Ms Cunha and Mr Nath I indicated that I found there to be an error of law in the Decision. Directions for a resumed hearing before me were agreed with the parties (see below). I indicated that I would provide reasons for my decision in writing which I now turn to do.
DISCUSSION
16. Judge Clarke dealt with the nationality issue at [53] to [67] of the Decision. I can ignore what is there said about the position in relation to Ivory Coast and Sierra Leone. The issue is whether he has or is entitled to Angolan citizenship as the Judge's finding was premised only on the basis of evidence about Angolan nationality.
17. At [55] of the Decision Judge Clarke recited the Appellant's case in relation to Angola. He was born there. His birth was not however registered, and he does not therefore have a birth certificate. However, he lived there for ten years and, as recorded at [58] of the Decision, the Appellant has also confirmed that both his parents were Angolan.
18. The Judge at [59], [60] and [62] sets out what is in essence the evidence relied upon by the Appellant as showing that he is stateless. That is mainly evidence emanating from the Respondent and is set out as follows:
"59. The Appellant maintains that he is effectively stateless as the Angolan Embassy on 2 occasions have refused to recognise him as an Angolan national. In his 2023 Witness Statement at Paragraph 8, the Appellant writes,
'On 22 nd May 2008 and 17 th April 2009, I was escorted by a Home Office representative to the Angolan Embassy to obtain travel documents and on both occasions the applications were denied as they did not recognise me as a citizen.'
60. Within the Appellant's Bundle there are GCID - Case Record Sheets from the Home Office which confirm that following the refusal of the Appellant's claim on 10 th April 2018 by the First Tier Tribunal, an ETD was submitted to the Angolan authorities on 22 nd April 2008. The following records are relevant:
'On 22.04.08 an application for an ETD (emergency travel document) was submitted to the Angolan authorities. The ETD application is still outstanding and no official decision has been made on the ETD to date, despite many requests for an update from RDGU.
On 17.04.09, [LK] attended an ETD (emergency travel document) interview with the Angolan authorities. The ETD application is still outstanding and no official decision has been made on the ETD to date despite many requests for an update from RDGU.
On 10 th August 2011 a second nationality interview was completed, photographs and fingerprints obtained."
...
62. There is also a record of a Home Office caseworker speaking with the Immigration Officer who attended with the Appellant at the Angolan Embassy on 17 th April 2009 and the Immigration Official spoke to an official at the Angolan Embassy, a Mr Mattias Rose, and it is recorded, ' ... Mr Rose stated that he had reviewed this case before and he had previously informed RDGU that the subject was not an Angolan national...'"
19. On the basis of that evidence, the Judge made the following findings:
"63. Taking all this evidence in the round, I find that the Appellant is effectively stateless. I accept that he was born in Angolan, he confirmed in his oral evidence that both his parents, now deceased, were Angolan nationals and that he lived in Angola until the age of 10 when his family fled the civil war. However, the reality is that the Appellant does not have any Angolan passport or any documents that he can prove his nationality and his own Embassy have told an Immigration Official from the Home Office that the Appellant is not an Angolan national.
64. I agree with Mr Nath's submission that if the Respondent and her officials cannot get written evidence from the Angolan Embassy as to their decision on the Appellant's nationality following his attendances at the Embassy in 2008 and 2009, which included an interview, it is highly unlikely that the Appellant will be able to do so.
65. I confirmed with Ms Kugendran that there is no suggestion by the Respondent that the Appellant can be deported to Ivory Coast and she confirmed that there was no such suggestion.
66. I therefore find that the Appellant is unable to prove his Angolan citizenship and is effectively stateless.
67. In making this finding, I note that the Appellant made an application for limited leave to remain in the United Kingdom as a stateless person that was refused on 31 st March 2016. This was refused on 31 st March 2016 on the basis of Paragraph 404 of the Immigration Rules with reference to Paragraph 322 of these Rules which states leave to remain is to be refused if, at the date of application, the applicant is subject to a Deportation Order. A copy of the Refusal Letter is included in the Appellant's bundle."
20. Ms Cunha began her submissions with a point which she said was not clearly articulated in the grounds as pleaded. She submitted that to establish statelessness, a person must be not only de facto stateless but also de jure. In other words, that person must show not only that he does not in fact have the nationality claimed but also that, as a matter of law of the country concerned, he is not able to obtain that nationality.
21. Mr Nath did not take any point about this not being pleaded and was right to do so. It is encompassed in the reference to the 1954 Convention relating to the Status of Stateless Persons set out in the grounds ("the term 'stateless person' means a person who is not considered as a national by any State under the operation of its law"). Furthermore, that this was part of the Respondent's case was clearly understood by Judge Boyes when granting permission. It is referred to in the final sentence of the permission grant.
22. Ms Cunha took me to AS (Guinea) and emphasised that the burden of establishing statelessness lies with the Appellant. As Ms Cunha fairly conceded, in AS (Guinea) the appellant's nationality had been accepted by the Embassy concerned ([22] of the judgment). However, in all other respects the case was not dissimilar to the facts here. In that case, the Tribunal Judge had rejected the appellant's case, but it is to be noted from [28] of the judgment that the appellant had sought to rely on the Embassy's refusal to issue him with an ETD.
23. As I understood Mr Nath to accept, the judgment in AS (Guinea) is authority for the proposition both that the burden of establishing statelessness lies on an appellant and that the standard is balance of probabilities. The Court's reasoning is most conveniently to be found stated at [57] of the judgment as follows:
24. Mr Nath submitted that the Judge had properly directed himself to the law. I cannot accept that submission. There is no reference to AS (Guinea) in the Decision (although I accept that this may be because he was not taken to it). I also accept that, on the face of what is said at [66], he may have considered the Appellant to bear the burden of proof. However, having looked carefully at the wording, I am not satisfied that he has done so. He has found that the Appellant has not shown his nationality but has jumped straight from that conclusion to a finding that the Appellant is therefore stateless without explaining how the Appellant has met the burden of showing this to be the position. Even if he correctly attributed the burden, the Judge asked himself the wrong question.
25. Mr Nath very fairly accepted that the Appellant had himself not provided any evidence about the position viz a viz Angolan law to show that he is not entitled to claim nationality of that country. The Appellant relied on a report of Professor Mario L Aguilar dated 16 November 2018 about conditions in Angola which does deal with the obstacles that someone in the Appellant's position might face having been out of that country for many years. However, Mr Nath accepted that Professor Aguilar did not deal with the legal position regarding the acquisition of citizenship for someone in the Appellant's position who was born to Angolan national parents in Angola and spent the first ten years of his life there. Nor does it appear that Professor Aguilar (who is not a lawyer) would have the necessary expertise to provide such an opinion.
26. Turning back then to the evidence on which the Judge (and the Appellant) relied, the Judge erred in finding that this would be sufficient to establish statelessness.
27. First, the GCID notes show only that the Angolan Embassy had unofficially indicated in 2009 that the Appellant is not an Angolan national. Leaving aside that there has been no official confirmation of that position, that was not the last attempt at documentation. In 2011, there was a further interview and photographs and fingerprints were taken. There is nothing in the evidence to show whether those steps altered the Embassy's view or that the Embassy has refused to accept the Appellant's nationality at that point in time. The Judge did not take that development into account.
28. Second, the apparent and unofficial refusal to accept the Appellant's nationality depends on what the Appellant told the Embassy. It is not clear whether he gave them full particulars of his parents, his birthplace and date and his residence in Angola until the age of ten.
29. Third, the unofficial position of the Embassy is only that they did not recognise the Appellant as presently an Angolan national. That does not mean that he might not be entitled to register as one. That is the point already made about the lack of any evidence before the Judge to show that the Appellant was stateless de jure.
30. In short, therefore the Appellant had not shown that he had taken reasonable steps to establish that he is stateless both in fact and in law. He needed to demonstrate both that he does not presently have the nationality of Angola and that he is not entitled to claim that nationality as a matter of Angolan law. It is not enough as the Judge appeared to suggest for the Appellant to assert that he has no passport or other documentation to establish Angolan nationality. At the very least, in accordance with what is said in AS (Guinea), he would need to approach the Embassy formally to enquire both as to any existing recognition of nationality and his entitlement to acquire it if the Angolan authorities are not prepared to accept him as their national.
31. For those reasons, the Judge erred in law when determining the statelessness issue.
32. Although there may well be other obstacles to the Appellant's integration in Angola, it cannot be said that the outcome of the appeal on that issue would remain the same absent the statelessness conclusion. So much is clear from the Judge's reasoning at [116] and [131] of the Decision where he finds that the statelessness is the "very compelling circumstance" which the Appellant requires to get over the line. The error of law is therefore capable of impacting on the outcome of the appeal.
33. However, as discussed with the parties following my conclusion regarding the error of law, and as indicated above, there has been no challenge to the Judge's conclusions that the Appellant does not have a well-founded fear of persecution in Angola, that the Appellant does not face a risk contrary to Articles 2 or 3 ECHR in that country and that the Appellant does not face a risk contrary to Article 3 on account of his health conditions. I therefore preserve the Judge's reasoning in that regard ([69] to [98]) and his dismissal of the appeal on those grounds.
34. The Judge's findings in relation to Angolan nationality at [63] to [64] and [67] to [68] fall to be set aside based on the error of law which I have found. I observe in relation to [67] of the Decision that the Judge says that the Respondent's refusal of the Appellant's statelessness application is in the Appellant's bundle, but I have been unable to trace it. Accordingly, I have given a direction for the Respondent to provide this to the Tribunal and Appellant.
35. The Judge's statelessness findings impact on the Article 8 assessment from [99] onwards. I did consider whether to preserve the Judge's finding in relation to the non-existence of family life ([100] to [104]). However, Article 8 will need to be reconsidered at the date of the resumed hearing and the Appellant's circumstances may have changed by that point. Accordingly, I have decided that it is appropriate to set aside the entire assessment at [99] onwards.
CONCLUSION
36. The Judge has made an error of law when determining the statelessness issue. I set aside the findings at [63] to [64] and [67] to [68] of the Decision and the Article 8 assessment and allowing of the appeal on that basis at [99] onwards. I preserve the Judge's findings at [69] to [98] of the Decision and the Judge's dismissal of the appeal on asylum, humanitarian protection grounds and Article 3 grounds.
NOTICE OF DECISION
The Decision of First-tier Tribunal Judge G Clarke dated 21 June 2023 involves the making of an error of law. I set aside [63] to [64], [67] to [68] and [99] onwards of the Decision and the allowing of the appeal on Article 8 grounds. I preserve the findings at [69] to [98] of the Decision and the dismissal of the appeal on asylum, humanitarian protection grounds and Article 3 grounds. I make the following directions for the rehearing of this appeal:
DIRECTIONS
1. By no later than 4pm on Monday 13 November 2023, the Respondent shall file with the Tribunal and serve on the Appellant her decision dated 31 March 2016 refusing the Appellant's application for leave to remain as a stateless person.
2. By no later than 4pm on Monday 11 December 2023, the Appellant shall file with the Tribunal and serve on the Respondent any further evidence on which he wishes to rely at the resumed hearing (including but not limited to evidence regarding the nationality/statelessness issue).
3. The parties have liberty to apply for amended directions, particularly in relation to any extension of time required for evidence. Such application shall be made on written notice to the other party.
4. The re-hearing of this appeal is to be listed before UTJ Smith for a face-to-face hearing on the first available date after 2 January 2024, time estimate ½ day. French interpreter is required.
L K Smith
Upper Tribunal Judge Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber
31 October 2023