Asfar Uddin v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Bean,Lady Justice King
Judgment Date12 March 2020
Neutral Citation[2020] EWCA Civ 338
Date12 March 2020
Docket NumberCase No: C5/2019/0576
CourtCourt of Appeal (Civil Division)
Between:
Asfar Uddin
Appellant
and
The Secretary of State for the Home Department
Respondent

[2020] EWCA Civ 338

Before:

THE SENIOR PRESIDENTOF TRIBUNALS

Lord Justice Bean

and

Lady Justice King

Case No: C5/2019/0576

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM The Upper Tribunal (Immigration and Asylum Chamber)

Deputy Upper Tribunal Judge Manuell

PA007372018

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Gordon Lee and Miss Amy Childs (instructed by Duncan Lewis Solicitors) for the Appellant

Mr William Irwin (instructed by Government Legal Department) for the Respondent

Hearing date: 11 December 2019

Approved Judgment

The Senior President

The Senior President:

Introduction

1

The Appellant appeals an order of Deputy Upper Tribunal Judge Manuell of 2 October 2018 which upheld a decision of Judge Herlihy in the First-tier Tribunal of 16 July 2018 dismissing his appeal from a decision of the Secretary of State to refuse him leave to remain. On 7 June 2019 Asplin LJ granted permission to appeal.

2

By the time of the hearing before the Court of Appeal on 11 December 2019, the oral submissions of both parties had developed from their paper origins to the extent that during oral argument the appeal focussed on one issue: the correct approach to construing the engagement of the right to respect for family life in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) in the factual circumstances that might arise out of a foster care relationship and where the person who had received or continued to receive the benefit of that care is now an adult.

Factual and Procedural Background

3

The Appellant is a national of Bangladesh who was born on 8 December 1999. His historical narrative, which is not accepted by the Secretary of State, is that he lived with his parents until the age of six but left home after he was mistreated. He says that he was found by a woman called Khuki who cared for him and brought him to London in early 2013. On any basis, on 20 February 2013, he was abandoned and was treated as a trafficked child who was placed with foster carers by the responsible local authority.

4

The Appellant made an application for asylum on 27 February 2013. The application was refused on 22 April 2013 but he was granted leave to remain as an unaccompanied asylum-seeking child until 8 June 2017. As his period of leave was expiring, the Appellant applied for further leave to remain on 18 May 2017. His application relied in part on his family life with his foster carers and their family.

5

The Secretary of State refused the Appellant leave to remain on 12 December 2017 because he a) had failed to establish a well-founded fear of persecution to qualify for asylum, b) had failed to demonstrate a real risk of serious harm to qualify for humanitarian protection, c) had failed to demonstrate that a refusal to grant leave to remain would breach his right to respect for family life under Article 8 ECHR or would cause a real risk that he would face treatment contrary to Article 3 ECHR, and d) was not eligible for a grant of discretionary leave.

6

In his appeal to the First-tier Tribunal (‘FtT’), the Appellant challenged only the decisions made in respect of his case under Articles 3 and 8 ECHR. In his subsequent appeal to the Upper Tribunal (‘UT’), the Appellant was granted permission only in relation to his Article 8 case. He argued that the FtT had a) given inadequate reasons for its findings, b) defined family life too narrowly and contrary to authority and c) erred in finding that there was insufficient dependency.

7

The factual evidence relating to the Appellant's relationship with his foster family that was available to both tribunals is important and I shall return to it later in this judgment. It is important that I identify at this stage what it is and that it was not adequately considered by any decision maker. The FtT heard oral evidence given in English from both the Appellant and from the carer who I shall call his foster mother because she asserts that quality of relationship in her evidence. There were witness statements from the Appellant and his foster mother, correspondence with the British Red Cross, evidence from the Appellant's social worker and reports from his Children Services Department including, among other material, the statutory Pathway Plan made for the Appellant, as a young man leaving the care system for whom the state has continuing obligations.

8

The evidence that exists includes the following:

i. The Appellant's view, expressed at paragraphs 6 and 12 of his witness statement, that his foster mother cares for him “like her own son”, and that her children care for him “as their own sibling”.

ii. His view, expressed at paragraph 15(c) that his “only family” is his foster family and that he sees his foster mother as “family who supports me if I need help with anything.”

iii. That the local authority children services department consider the Appellant to have “established a secure base through being with a foster carer who is committed to his welfare and success in life”, and that the relationship is also seen by them as being a “strong protective factor” and that he was assessed as having a “close attachment to her”. That is evidenced at pages 6 and 7 of the Pathway Plan and at page 10 of the same document the Appellant's relationship with his foster mother is recorded as being: “very important and key to maintaining long term stability as she knows him and is attentive to his needs”.

iv. The foster mother's evidence at paragraph 5 of her statement is that the Appellant was seen as “the third child in the family”, that both of her children “love the Appellant as their youngest brother”, that the family as a whole “provide him with emotional support” and that the Appellant has grown a “strong bond” with her and the family.

v. The fact that he continues to live with his foster family after becoming an adult and he has not yet been assessed as being ready for “independent living” by children's services, that is, there is a clear case to be answered that he is emotionally and practically dependent on them as well as being financially dependent on the local authority.

Decision appealed

9

The FtT dismissed the Appellant's appeal primarily in respect of the asserted case on Article 3 ECHR, finding that there was no real risk that the Appellant would suffer serious harm if deported: he would be returning to a country in which he had lived for thirteen years, he could speak Bengali to a reasonable degree, was well-educated and had sufficient practical skills to care for himself. He was capable of reintegrating into Bangladesh society and able to avail himself of the country's public services.

10

While accepting that it did not directly impact upon the decision to be made, the judge expressly recorded her view that the Appellant was not a credible witness with regard to the account he gave of his history. She noted that his account was devoid of almost any detail and that she found some of his claims to be highly implausible. She did not think that he had been wholly open and honest about his circumstances in Bangladesh. There is at least a suggestion that the conclusion to which she came on the credibility of his historical narrative affected her view of his overall credibility.

11

I note in that regard the conventional warning which judges give themselves that a person may be untruthful about one matter (in this case his history) without necessarily being untruthful about another (in this case the existence of family life with the foster mother's family), known as a ‘Lucas direction’ (derived in part from the judgment of the CACD in R v Lucas [1981] QB 720 per Lord Lane CJ at 723C). The classic formulation of the principle is said to be this: if a court concludes that a witness has lied about one matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure. That is because a person's motives may be different as respects different questions. The warning is not to be found in the judgments before this court. This is perhaps a useful opportunity to emphasise that the utility of the self-direction is of general application and not limited to family and criminal cases.

12

As to Article 8, the judge understandably gave briefer consideration to this question given its relative lack of emphasis in the appeal before the FtT. She concluded that the refusal to grant leave to remain would not breach the Appellant's right to respect for family life. In doing so, she appropriately relied on the principle most often cited from the judgment of Sedley LJ in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 (which was itself a citation from the Commission's report in S v United Kingdom [1984] 40 DR 196), and she acknowledged that dependency was not limited to being only economic.

13

The judge did not find that the Appellant had established that his relationship with his foster family constituted family life nor was she persuaded that the Appellant had demonstrated dependency beyond normal emotional ties. She considered that the Article 8 right to respect for family life was not engaged. Accordingly, she dismissed the Appellant's appeal on human rights grounds.

14

The Upper Tribunal's analysis of the issues on the appeal is concise. I make no criticism of that, brevity is a skill. What is surprising is the lack of any analysis of the evidence which existed given the Article 8 case that was being advanced in the UT. In the event, the UT found that there was no error of law in the FtT's conclusion that family life did not exist between the Appellant and his foster family on the facts of this...

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