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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005338
	First-tier Tribunal No: PA/57411/2023 LP/01852/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE CANAVAN

DEPUTY UPPER TRIBUNAL JUDGE HARRIS

 

Between

 

AA

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Jegarajah of Counsel

For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

 

Heard at Field House on 31 January 2025

 

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 .

DECISION AND REASONS

 

1.              The appellant appeals against the decision dated 23 August 2024 of First-tier Tribunal Judge B Hughes dismissing her appeal against the respondent's decision dated 15 September 2023 to refuse her protection and human rights claim.

The First-tier Tribunal hearing

2.              Before the judge the parties identified the credibility of the appellant as the fundamental issue in the appeal, particularly the credibility of her claim that she was a Sri Lankan national who, having fled Sri Lanka in 1990, had been living in India, and who had illegally obtained an Indian passport which she used to enter the UK. It was said that the appellant fears ill treatment by the Indian authorities when detained on return to India for having the illegal passport and that she would then be deported to Sri Lanka where she would face very significant obstacles integrating there.

3.              It was the case of the respondent that the Indian passport used by the appellant was genuine and that the appellant is an Indian national able to return safely to India.

4.              It was agreed by the parties that if the judge found that the appellant was of Indian nationality (and thus by implication entitled to be issued with an Indian passport) then the protection claim fell away.

5.              The judge made findings after hearing the appellant give oral evidence at the hearing through a Tamil interpreter. The judge paid particularly close attention to copies of documentary evidence relevant to the issue of nationality as the appellant accepted that she had told lies at various times.

6.              Although only a single page, containing the personal details of the appellant, from the appellant's Indian passport was before the judge, there was no suggestion from the parties that there were other pages that would assist her. The judge noted the various details shown including that the appellant's place of birth was recorded as a town in India. The judge considered that on the face of the matter the Indian passport appeared to be genuine and strong evidence to support that the appellant was an Indian national.

7.              The judge also attached weight to the appellant using the passport without difficulty to secure visas and to travel between India and the UK, considering that past use of the passport was of relevance to considering its future use in general and, in particular, what may happen if she presented the passport upon re-entry to India. The judge drew the conclusion that the passport was not only sufficient to lead to the issue of three visas but had withstood scrutiny when inspected at UK and Indian border controls. The judge found it unlikely that it was a forged document.

8.              The judge went on to note the evidence produced by the appellant in support of the claim that she was of Sri Lankan nationality, consisting of marriage certificate documentation and a birth certificate. The judge considered that the marriage certificate documentation, while indicating that the appellant married in Sri Lanka, was of little assistance in determining the present day nationality of the appellant.

9.              The judge then turned to the birth certificate, commenting that it provided evidence that the appellant was born in Sri Lanka. However, the judge identified the question was whether the appellant has subsequently acquired Indian nationality.

10.          The judge noted that in the expert report produced by the appellant it was said that it would have been possible (but not easily possible) for a person who left Sri Lanka to India in 1990 to have secured Indian citizenship by 2020. The judge then observed it was therefore possible that both the marriage certificate and the Indian certificate were both genuine documents and considered that use of the passport for travel was credible evidence that the passport was genuine and supportive of the contention that the appellant was of Indian nationality.

11.          The Judge further noted that the appellant had not disputed that the respondent had carried out checks deeming the passport to be genuine. This was strong support for the contention that the passport was genuine.

12.          Over a number of paragraphs in her decision the judge reviewed the oral evidence of the appellant and found her lacking in credibility as a witness in a number of ways that we do not have to detail. It was noted that, by her own account, the appellant accepted she had lied in her visa applications. Evidence in the form of a letter said to be to a daughter of the appellant from the Indian Ministry of Government Affairs was of dubious reliability and added little to the appellant's case. Notwithstanding that the appellant's daughter gave oral evidence at the hearing concerning circumstances in the UK, the judge found that the absence of a witness statement from the appellant's husband significantly reduced the credibility of the appellant's claim.

13.          The judge treated the report of the Indian Advocate, produced by the appellant, as expert evidence but could not see, even with the benefit of the report , why the appellant could not have taken a course similar to that described as regards her children in India, which was embarking upon a route to securing Indian citizenship.

14.          Bearing in mind the expert's inevitable reliance on what the appellant had put forward for his consideration, the judge concluded that there was at least a likelihood that the appellant had gained Indian citizenship during her 30 year residency in the country. The existence of the Indian passport supported this. Reviewing the evidence before her, the judge found she was not satisfied that the appellant had demonstrated that she is a Sri Lankan national at the point of entry to the UK.

15.          Applying the facts to the law, the judge found that the appellant's claim was not demonstrated on asylum, humanitarian protection or Article 3 grounds. In the context of the appellant returning as an Indian national to India where she had family the judge found there was no breach of Article 8.

Ground of appeal

16.          The appellant has essentially raised one ground of appeal. It is based on the First-tier Tribunal Judge apparently accepting as genuine not just the Indian passport but also the Sr Lankan birth certificate produced by the appellant. Crucially, while the Indian passport gives an Indian location for the appellant's place of birth, the birth certificate gives a Sri Lankan location. It is submitted if the appellant had subsequently acquired Indian nationality and the birth certificate was genuine, the Indian passport would have stated the Sri Lankan location as the appellant's place and not the Indian location. The judge had made her finding on the nationality of the appellant without giving adequate consideration to the conflict regarding place of birth between the passport and birth certificate

Grant of permission

17.          Upper Tribunal Judge Ruddick granted the appellant permission to appeal in a decision dated 3 December 2024. The Upper Tribunal Judge found it arguable that the First-tier Tribunal Judge's decision that the appellant had become an Indian national after years of residence in India was irrational or inadequately reasoned because it appears to accept two inconsistent facts regarding the appellant's place of birth as stated in the Indian passport and as stated in the Sri Lankan birth certificate.

The Upper Tribunal hearing

18.          At the hearing before us, we heard submissions from both the parties.

19.          Ms Jegarajah for the appellant relied on the submissions made in the grounds of appeal and reiterated that the First-tier Tribunal Judge had failed to give adequate reasoning for finding the appellant had become an Indian national when the place of birth in the Indian passport differed from that given in the appellant's birth certificate.

20.          Mr Tufan for the respondent submitted that the judge had reached a decision lawfully open to her to make. He drew attention to the lack of dispute over the Indian passport being genuine and having been used and checked by border officials on a number of occasions. He relied on Hussein and Another (Status of passports: foreign law) [2020] UKUT 250 (IAC) to submit that a person who holds a genuine passport should be regarded as a national of the country which issued the passport. The judge had repeatedly found he appellant to be an unreliable witness. It was open to the appellant to approach the Indian authorities to confirm she was not entitled to an Indian passport but there was no evidence she had done this.

21.          Having considered the submissions made, we indicated to the parties that we did find a material error of law in the decision of the First-tier Tribunal judge and that we would be providing our reasons in writing at a later date. In response to our enquiry, both parties submitted that it would be appropriate to remit this appeal for a fresh hearing in the First-tier Tribunal.

22.          We turn now to set out our reasons for finding there has been a material error of law.

Analysis

23.          On her last arrival to this country, as on a number of offer occasions, the appellant presented to UK officials an Indian passport issued in her name.

24.          It was held in Hussain that a person who holds a genuine passport, apparently issued to him, and not falsified or altered, has to be regarded as a national of the State that issued the passport and that in an asylum case the burden of proving the contrary lies on the person making the claim. It can also be noted that at paragraph 13 of Hussain the Tribunal did observe that a passport detected as deceptive will not have the effect of a genuine passport.

25.          In this case the appellant does not dispute that the passport is genuine but her case is effectively that it was obtained by deception in some way and therefore does not demonstrate that she is an Indian national.

26.          The assessment that the Indian passport was lawfully issued to the appellant is central to the Judge's reasoning that the appellant was not now a Sri Lankan national but an Indian national.

27.          However, one would expect a passport lawfully issued to a person to contain details that match that person's birth certificate. The judge in her reasoning did not reject the reliability of the appellant's Sri Lankan birth certificate. In this case the stated places of birth on the passport and the appellant's birth certificate differ significantly: the passport gives an Indian location, the birth certificate a Sri Lankan location.

28.          This significant difference is capable of supporting the claim of the appellant regarding the passport and her nationality but is not addressed in the reasons of the appellant. Having noted at that the Indian passport recorded the place of birth as 'Nagapattinam, Tamil Nadu' [25], and at a later stage, considered that one plausible explanation might be that an agent might have acted on her behalf 'in securing a genuine passport... whether with false information provided by the appellant or not' [38], the judge failed to make findings in relation to a matter that was material to a proper determination of the appeal. We find this to be an error of law.

29.          As noted by the judge, the issue of the appellant's nationality is fundamental to the assessment of the protection and human rights claims made by the appellant. The judge's assessment of the passport was at the core of her reasoning regarding finding the appellant to be an Indian national and not credible in her claim to currently be a Sri Lankan national. In this context we find the error of law to be a material one.

Observations

30.          We take the view that both parties can provide greater assistance than has previously been given to the First-tier Tribunal at the fresh hearing with identifying what are the primary issues in this appeal.

31.          We note that neither party has contended that possession of dual Indian and Sri Lankan nationality is possible for a person.

32.          So far the respondent has been steadfast in arguing that the Indian passport is genuine and indicative that that the appellant is an Indian national. Nevertheless, it would be wise for the respondent to be prepared to argue her case in the alternative in order to engage with any potential finding of the First-tier Tribunal that the passport is genuine but fraudulently obtained and that the evidence does not establish that the appellant is an Indian national. In the circumstances of the appellant being found not to be an Indian national, the respondent has not identified any other status, in the alternative, that would now entitle the appellant to enter and reside in India.

33.          Before us the respondent acknowledged that if it were decided that the appellant was Sri Lankan, she would be returned to Sri Lanka and not India. Clearly, that will affect what protection or Article 3 issues arise, if at all, in that scenario.

34.          Ms Jegarajah acknowledged before us that, as argued at present, the appellant's case was that she could not lawfully return to India. If the appellant's current protection claim is taken at its highest, she has only expressed a fear of return to India. International protection is only available if a person does not have an alternative country of protection. It is the appellant's case that she is a Sri Lankan national. She has produced evidence to show that her mother still lives in Sri Lanka and stated in interview that a number of other relatives also remain in Sri Lanka.

35.          Given that the issue of return to Sri Lanka was not explored in interview or in the decision letter, the respondent may need to consider whether to give consent for it to be considered as a 'new matter' under section 85 of the Nationality, Immigration and Asylum Act 2002. In view of the fact that it is clearly relevant, and neither party has considered the alternative scenario of return to Sri Lanka, we would encourage the respondent to do so. If consent is given, any alternative case relating to potential return to Sri Lanka will need to be considered, particularised, and evidenced properly before a fresh hearing can take place.

36.          We consider that the appellant should also provide clearer particularisation of what her claim precisely is, whether in protection or Article 8 terms, in the event of the First-tier Tribunal finding that the appellant cannot go to India, as she is not an Indian national, but that she is a Sri Lankan national entitled to go to Sri Lanka.

Conclusion

37.          Accordingly, we have decided that the decision of First-tier Tribunal Judge Hughes should be set aside.

38.          We have considered whether we should remake the decision on the appeal in this Tribunal. The normal course of action is for the Upper Tribunal to remake the decision even if it requires further findings of fact to be made on the evidence. However, given that fresh findings will need to be made in relation to the credibility of the claim, and there are other obvious issues relating to potential return to Sri Lanka that might also need to be considered by both parties before the next hearing, it was agreed that the appropriate course of action would be to remit the appeal to the First-tier Tribunal for a fresh hearing. The First-tier Tribunal can case manage the procedural issues outlined above.

Notice of Decision

The decision dated 23 August 2024 of First-tier Tribunal Judge Hughes contains a material error of law. We set aside that decision and direct that the appeal be remitted to the First-tier Tribunal for a fresh hearing before any judge except for Judge Hughes.

 

M Harris

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

10 February 2025