United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004529
	First-tier Tribunal No: PA/08984/2017

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

20 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE LOUGHRAN

DEPUTY UPPER TRIBUNAL JUDGE BIBI

 

Between

 

OG

(ANONYMITY ORDER MADE)

Appellant

And

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

 

Representation :

 

For the Appellant: Mr Michael West, Counsel instructed by Chipatiso Associates LLP

For the Respondent: Mr Madhi Parvar, Senior Home Office Presenting Officer

 

Heard at Field House on 7 February 2025

 

 

DECISION AND REASONS

 

1.              The Appellant appeals from the decision of First-tier Tribunal Judge Chinweze promulgated on 22 August 2024, dismissing his appeal against the decision of the Respondent refusing his protection and human rights claim dated 04 February 2016, 21 July 2017 and 23 December 2021 which are discussed below in paragraphs 4 and 5.

2.              The Appellant was refused permission to appeal by First-Tier Tribunal Judge Hollings-Tennant on 16 September 2024. However, permission was granted by Upper Tribunal Judge Reeds on 15 October 2024 on all grounds save for ground 1.

3.              After hearing submissions, we reserved our decision. We decided that the appeal should be dismissed. We find that there was no error of law in the decision of the First-tier Tribunal. Our reasons for the decision are set out below.

Background to the appeal

4.              The Appellant is a national of Jamaica born on 03 November 1993. On 04 February 2016, the Respondent served him with a notice that she intended to deport him due to his offending history. On 18 February 2016, the Appellant submitted representations that his deportation would breach his human rights under the European Convention on Human Rights, (ECHR). On 7 March 2017, the Appellant claimed asylum on the grounds of his sexual orientation. On 21 July 2017, the Respondent refused the Appellant's protection and human rights claim

5.              On 23 December 2021, the Respondent notified the Appellant that pursuant to Section 72 of the Nationality Immigration and Asylum Act 2002, (NIAA 2002 Act), he was excluded from protection under the Refugee Convention, as he had been convicted of a particularly serious crime and was a danger to the community. In submissions dated 01 March 2022, the Appellant sought to rebut the presumption that he was a danger to the community. On 21 March 2022, the Respondent refused the submissions.

6.              In a detailed decision, the Judge found that the Appellant was not excluded from refugee protection under Section 72 NIAA 2002 Act, but concluded that the Appellant has failed to demonstrate on the lower standard that he is bisexual. The Judge found that the Appellant could not meet the private life exceptions in s117C(4) NIAA 2002 because of his length of residence. The Judge found that the Appellant does not meet the requirements of exception 2 as it would not be unduly harsh for his child, TA to continue to live in the UK without the Appellant. The Judge, having reviewed the evidence did not accept that there were ' very compelling circumstances' under s117C(6) NIAA 2002 and dismissed the appeal on Article 8 grounds.

7.              The Appellant's grounds of appeal asserted that the Judge had erred in law as firstly, he gave inadequate weight to the Appellant's diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). Secondly, the Judge's assessment of the Appellant's claim to be a bisexual man was flawed. The Judge failed to consider that the Appellant's asylum interview was conducted without the aid of an intermediary to assist him with his evidence. The Appellant asserts that the Judge erred in considering that the Appellant ought to have been active in the LGBTQ community and produce evidence of his sexual orientation.

8.              Thirdly, it was submitted, that the Judge materially erred when assessing "very compelling circumstances," because he failed to give weight to any of the expert reports in relation to his ADHD diagnosis. The Judge found contrary to the opinions of the experts that the Appellant can return safely and reintegrate in Jamaica.

9.              Fourthly, the Appellant asserts that the Judge erred in finding that it would not be unduly harsh for TA to be separated from her father because §90 "there was no evidence from TA's school of the Appellant's involvement in any of her curricular activities or attending any parent teacher meeting and nor is there any evidence of the Appellant contributing financially" without considering that the Appellant does not work. The grounds assert that the Appellant's inability to provide financially does not negate the fact that he has a close relationship with TA, or that TA will be impacted by the separation given her age and ability to deal with the separation. Furthermore, the Appellant asserts that the Judge did not consider TA mother's testimony to the social worker and the extent of the Appellant's relationship with his daughter. The Appellant submits that the test in HA (Iraq) is met and the Judge failed to give adequate consideration to the evidence and erred in the balancing exercise.

10.          There was no Rule 24 response filed by the Respondent.

Permission to Appeal

11.          The Appellant was refused permission to appeal by First-Tier Tribunal Judge Hollings-Tennant. However, Upper Tribunal Judge Reeds granted permission to appeal for the following reasons:-

"Ground 4 challenges the assessment of undue harshness in the context of his relationship with his daughter. Whilst the FtTJ accepted that he had a genuine subsisting relationship with his daughter, and that she was an integral part of her life, it is arguable that the FtTJ did not apply the correct test following HA (Iraq) see paragraph 116, when referring to there being no factors that arise "above the commonplace affection of family life" and by reference to the evidence given by the child herself as to the effects of separation.

Grounds 1 the grounds assert that there was inadequate weight given to the Appellant's diagnosis of ADHD when assessing the overall decision. It is further asserted that the FtTJ failed to give adequate weight to the diagnosis and to adjustments to the past evidence. There is no arguable error of law disclosed in ground 1. The FtTJ set out between paragraphs 24 - 32 the ways in which the hearing was conducted. The FtTJ properly applied the decision of AM (Afghanistan) and in the light of the Appellant's diagnosis of ADHD and that the Appellant was assessed as requiring an intermediary. The FtTJ sets out the relevant steps taken which included the proposals given by the intermediary (see paragraph 26) and which included a list of questions and grounds rule hearing. At paragraph 29, the FtTJ set 2 out the steps he adopted after discussions with both advocates and in light of the recommendations made by the intermediary. It is plain from the FtTJ's decision that he had proper regard to the diagnosis of ADHD having treated the Appellant as a vulnerable witness. However in respect of Ground 2 it is arguable that the FtTJ did not take account of the diagnosis in the context of the claim based on his sexuality. It is of note that the grounds do not appear to challenge the substantive reasoning given for upholding the section72 certificate and that the challenge made in the grounds to the assessment of his claimed sexuality could only be relevant to the Article 3 assessment.

The other grounds seem to be no more than a disagreement with the decision and are weaker, but I grant permission on all grounds save for ground 1".

The hearing

12.          In submissions on behalf of the Appellant, Mr West pursued only grounds 3 and 4. He confirmed that the Appellant is no longer relying on ground 2 and that the Appellant was not pursuing his protection claim. Mr West submitted that if the panel found that there was an error on ground 4 then the assessment of ground 3 would not require consideration. Mr West accepted that as they were not being challenged the Judge's findings in respect of the Appellant's protection claim will stand.

13.          Mr West focussed his submissions on the Judge's consideration of the issue of whether it would be unduly harsh for TA to remain in the UK without the Appellant. In affect Mr West argued that the Judge had erred by failing to consider the evidence relating to TA's history of self-harm in his consideration of that issue. Mr West accepted that the Judge had considered it at §111 to §116 under the section of "very compelling circumstances," but that it was also relevant to whether it was unduly harsh for TA to remain in the UK without the Appellant. He noted that the test for "unduly harsh" is different to "very compelling circumstances".

14.          For the Respondent, Mr Parvar submitted that the Judge had clearly been mindful that the Appellant's failure to meet the exceptions in s117(4) and (5) NIAA 2002 meant that very compelling circumstances over and above the exceptions were required; that was inherent in the structure and content of his decision. In relation to ground 3, the Judge considered the Appellant's diagnosis of ADHD at §97. In respect of ground 4, the Judge has set out at §79 "The test of very compelling circumstances sets a higher standard than that of the test of undue harshness, HA Iraq, (44)". The Judge stated that he placed limited weight to the report by the independent social worker at §114 and gave clear reasons for that. The Judge had properly and carefully considered the evidence before him and there was no error of law in his decision. The grounds amounted to no more than a disagreement with the decision.

15.          At the end of the hearing we reserved our decision, which we now give.

Error of law decision

16.          It is firmly established that an appellate court should exercise caution when considering first instance decisions of the First-tier Tribunal as a specialist tribunal of fact. The Court of Appeal and Supreme Court have repeatedly emphasised that an error of law should not be assumed where the First-tier Tribunal has not expressly referred to an authority or statutory provision. The focus must always be on the way the Judge has "performed the essence of the task required": see, for example, Yalcin v SSHD [2024] WLR(D) 49 at §67 and the principles summarised in HA (Iraq) v SSHD [2020] EWCA Civ 1176 at §72.

17.          In this case, the Judge explicitly reminded himself of the relevant case law and the test he is required to consider in relation to "unduly harsh" at §86: " On the question of whether the impact of the Appellant's deportation on TA would be unduly harsh, I have borne in mind HA Iraq, [41] and [42]" and "very compelling circumstances" at §79: "The test of very compelling circumstances sets a higher standard than that of the test of undue harshness, HA Iraq, (44)." The Judge has outlined the correct legal framework at §73 to §82.

18.          We are satisfied that the Judge did not err in his approach to the evidence. The Judge was entitled to consider the lack of evidence from the TA's school and that the Appellant did not contribute financially to TA's upkeep. We are satisfied that the Judge considered the independent social worker's report and TA's mother's testimony given to the independent social worker. The Judge noted at §90 that although the independent social worker had referred to the Appellant collaborating in TA's care, no examples of how he did so had been given and at §91 that no practical examples were given by the independent social worker of the Appellant's day to day involvement in TA's life.

19.          We are not persuaded by Mr West's submission that the Judge erred by failing to consider TA's history of self-harm in the context of whether the Appellant's deportation would be unduly harsh on TA. We note that the Judge's consideration of the independent social worker's evidence regarding TA's history of self-harm is at §113 - §114 and under the heading "very compelling circumstances". However, the decision needs to be read as a whole. We are satisfied that the Judge included that evidence in his consideration of whether the Appellant's deportation would be unduly harsh on TA.

20.          In any event, in light of the Judge's findings in respect of that evidence, even if the Judge had erred in the manner claimed it would not be material. The Judge recorded that TA's mother informed the independent social worker that TA had a history of self-harm and that if the Appellant was deported "she would find it difficult to cope and may end up self-harming." However, the Judge noted that there was no evidence of self-harm from TA or her doctor, or that it was caused by the separation from the Appellant or that it stopped when the Appellant came back into her life. The Judge recorded that TA was not interviewed by the independent social worker and after having considered the report, the Judge decided to give it "limited weight" at §114. This was a finding that was open to the Judge. He gave detailed and careful consideration to the evidence.

21.          We cannot see that there is any merit in ground 3 at all. The Judge sets out his consideration of the Appellant's diagnosis of ADHD and refers to the country expert report at §97 to §99 and at §106 to §108. The Judge concluded that there was no evidence that ADHD medication is not available in Jamaica, there was no evidence that the Appellant was unable to function without his medication and that he would have financial support from family members. These findings were open to the Judge on the evidence before him.

Notice of Decision

22.          The decision of the First-tier Tribunal did not involve the making of an error of law and we decline to set it aside. The Appellant's appeal is dismissed.

 

T Bibi

 

T Bibi

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

18 February 2025