Richie Boniface Akpan v Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Lord Justice Sales,Lord Justice David Richards,Lady Justice Sharp |
Judgment Date | 10 December 2015 |
Neutral Citation | [2015] EWCA Civ 1266 |
Court | Court of Appeal (Civil Division) |
Docket Number | Case No: C4/2015/0485 |
Date | 10 December 2015 |
[2015] EWCA Civ 1266
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MRS E COOKE SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
CO108552013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
Lord Justice Sales
and
Lord Justice David Richards
Case No: C4/2015/0485
The Queen on the Application of
Ms Catherine Rowlands (instructed by Government Legal Department) for the Appellant
Mr John Walsh (instructed by OA Solicitors) for the Respondent
Hearing dates: 26 November 2015
This is an appeal by the Secretary of State from Elizabeth Cooke, sitting as a Deputy Judge of the High Court, in which she quashed a decision of the Secretary of State refusing to grant the respondent, Ms Akpan, leave to remain in the United Kingdom under paragraph 276ADE of the Immigration Rules as it stood at the relevant time. The issue in the case is whether Ms Akpan can establish that she "has no ties (including social, cultural or family)" with the country to which she would have to go if required to leave the United Kingdom, namely Nigeria.
At the relevant time, paragraph 276ADE provided in material part as follows:
"The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
…
(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK."
Ms Akpan is a Nigerian national, born on 31 July 1988. She came to this country as a 14 year old in January 2003.
The circumstances in which Ms Akpan came to the United Kingdom as a child were tragic. She returned from school in Nigeria one day to find her father dead, her home ransacked and her mother, brother and sisters all fled. She was told by a family friend that her father had been killed by a local gang known as the "Bakassi Boys" with whom he had been in dispute. Ms Akpan was helped by friends to leave the country and come to the United Kingdom.
Shortly after arriving here, in March 2003 Ms Akpan made a claim for asylum on the grounds of the threat she would face from the Bakassi Boys if returned to Nigeria. Her claim was refused in April 2003, but because she was an unaccompanied minor she was granted discretionary leave to remain until she was 18. She was placed with a foster mother, with whom she has developed a close bond.
In April 2006, before her leave to remain expired, Ms Akpan applied for an extension on asylum and human rights grounds. Her leave to remain was extended by statute pending determination of her application.
The Secretary of State refused her application. Ms Akpan's appeal was dismissed by Immigration Judge Molloy in the Asylum and Immigration Tribunal in a determination of 5 April 2007. IJ Molloy found Ms Akpan to be a credible witness and accepted her account of the circumstances in which she left Nigeria. He also accepted her evidence that she had not made any contact with anyone at all in Nigeria since coming to the United Kingdom, but did so with dismay since he considered that there were reasonable avenues available to her for seeking better information from persons in Nigeria or the Nigerian authorities which she ought to have pursued. Accordingly, he did not consider that Ms Akpan had demonstrated to the appropriate standard that she would be at real risk of persecution or harm if she were removed to Nigeria.
Ms Akpan was granted a reconsideration of IJ Molloy's determination. By a determination of 14 September 2007 Senior Immigration Judge King again dismissed her appeal. SIJ King accepted the previous finding that Ms Akpan was a credible witness. He noted that at the previous hearing Ms Akpan had given evidence that, although she had not personally tried to contact her family in Nigeria, there were friends who had been back, but it was a big country and they had not been able to make contact with any family members there. Ms Akpan also said that she had no friends in Nigeria. SIJ King again found that it would be safe for Ms Akpan to return to Nigeria; he also held that she had not discharged the burden upon her to show that she would be without family support: "She has a mother, brothers and sister and there is no reason to believe that they would not still be in the area and able to give support. The fact that the appellant's friend was unable to make contact with the family did not necessarily mean that the family was no longer in that area" ([13]). He found that, if returned to Nigeria, "The appellant would be returning to an area not as a stranger but someone having contact with the area and the potential of friends and family in that area capable of providing some assistance" ([14]).
Ms Akpan applied for permission to appeal to this court. This was refused by Longmore LJ on 12 March 2008. This meant that her leave to remain came to an end, as her appeal rights had been exhausted. Nonetheless, Longmore LJ expressed the hope that the Secretary of State would allow her to stay here in order to complete the nursing studies she was then undertaking at King's College, London. Ms Akpan was not removed and she graduated with a nursing degree from King's College in 200Since then, by reason of her status as an unlawful entrant she has been unable to work.
In December 2009 the Secretary of State asked for information from Ms Akpan, which she supplied. She then heard nothing more for a long time.
On 25 March 2013, under cover of a letter from her solicitors, Ms Akpan filed a new application for leave to remain on the basis of her Convention rights under Article 2 (right to life), Article 3 (prohibition of torture), Article 8 (right to respect for her private life and family life with her foster mother in the United Kingdom) and paragraph 276ADE of the Immigration Rules. We were not provided with the full set of materials submitted to the Secretary of State, but it appears from the completed application form what documents were sent. In the application form, in answer to a question regarding her ties with Nigeria she simply put "No ties", without further explanation, and also stated in answer to another question about family and friends there, "No family or friends". The covering letter stated: "She has no family to return to in Nigeria. She has no social, cultural or family ties in Nigeria". It referred to the facts that her father had been killed by the Bakassi Boys and that she had left Nigeria as a minor, and maintained that it would be difficult to locate any of her family if she returned to Nigeria.
Ms Akpan did not provide copies of, nor did she rely upon, the decisions in the Tribunal. Mr Walsh, who appeared for her on this appeal, contended that the Secretary of State should have traced these decisions and considered them. I do not agree. It was incumbent on Ms Akpan to submit with her application any materials on which she wished to rely.
The Secretary of State refused Ms Akpan's application by a short decision letter dated 14 May 2013. In relation to paragraph 276ADE(vi), the letter stated: "You have spent 14 years of your life living in Nigeria and, in the absence of any evidence to contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country." The letter did not refer to the decisions in the Tribunal. This is unexceptionable, since Ms Akpan did not seek to rely upon them in support of her application.
Thus it may be observed that Ms Akpan's application under paragraph 276ADE(vi) was in very summary terms, involving little more than unsupported assertion; and the Secretary of State's decision on that application was also very summary, essentially relying on the period of time spent by Ms Akpan in Nigeria and the age at which she left.
Ms Akpan's solicitors wrote a pre-action protocol letter dated 21 May 2013 to threaten a judicial review challenge to the Secretary of State's decision. The letter essentially repeated what had been said before. It stated that Ms...
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