RM (Sierra Leone) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Christopher Clarke,Lord Justice Kitchin |
| Judgment Date | 21 May 2015 |
| Neutral Citation | [2015] EWCA Civ 541 |
| Docket Number | Case No: C5/2013/2819 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 2015 |
[2015] EWCA Civ 541
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kitchin
Lord Justice Underhill
and
Lord Justice Christopher Clarke
Case No: C5/2013/2819
Mr David Chirico (instructed by Wilson Solicitors LLP) for the Appellant
Mr Robert Palmer (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 19 March 2015
INTRODUCTION
This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dismissing an appeal against a decision of the First-tier Tribunal, which in turn dismissed the Appellant's appeal against the refusal by the Secretary of State to revoke a deportation order. Mr David Chirico appeared for the Appellant and Mr Robert Palmer for the Secretary of State. Both counsel argued the case very well.
THE APPELLANT'S IMMIGRATION HISTORY
The Appellant is aged 43. He arrived in this country, using a false passport, on a flight from Lagos in April 1999. He said that he was a national of Sierra Leone, having been born and brought up in Freetown. He claimed asylum on the basis that he feared persecution there because of his tribal affiliation. His account was that he had in fact left Sierra Leone at the age of 15 and gone to live in Lagos. He said that he went back in December 1998 to visit his parents, but he found that they had been murdered because of their tribal affiliation: he said that he feared the same fate if he stayed and had returned to Nigeria at once.
The Appellant's claim for asylum was refused in March 2003. He appealed to the Immigration Appellate Authority. His appeal was dismissed in March 2004. The adjudicator found many implausibilities and inconsistencies in his account, saying that he was not a credible witness in relation to "all the core aspects of his story".
In January 2006 the Appellant was convicted in the magistrates' court for use of a forged passport and sentenced to eight months' imprisonment. He was recommended for deportation.
Shortly before the Appellant's release, on 15 May 2006, his then solicitors, Abbott & Co., wrote to the Home Office asking that he should be returned not to Sierra Leone but to Nigeria. They said that his mother was Nigerian and that he had acquired Nigerian citizenship during the many years that he had lived there.
Following his release the Appellant absconded, but in April 2007 he was detected trying to leave the country using a forged passport. He was in due course convicted and sentenced to fifteen months' imprisonment.
In October 2007, while the Appellant was still serving that sentence, the Secretary of State made a decision to deport him, and in the following month he was transferred to immigration detention in Harmondsworth.
The Appellant appealed against his deportation on the basis that he was a homosexual and would be persecuted for his sexuality if he was returned, as the Secretary of State at that stage apparently intended, to Sierra Leone. He also claimed that his deportation would involve a breach of his rights under articles 3 and 8 of the European Convention of Human Rights: he relied on the facts that he had been diagnosed with HIV and that he was suffering from mental illness. As regards the latter, a report from Professor Katona diagnosed a major depressive disorder with psychotic features and post-traumatic stress disorder. He was said to pose a suicide risk. It was said that on account of his mental illness he suffered from memory loss.
The appeal was dismissed by the Asylum and Immigration Tribunal in June 2008. It was accepted that homosexuals are ill-treated in Sierra Leone; but the Tribunal was doubtful whether the Appellant was in truth a homosexual, and in any event it found that even if he was he would not behave in a way which would put him at risk if he were returned to Sierra Leone (the decision pre-dated HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 37, [2010] 1 WLR 1934). The asylum claim was accordingly rejected. The Tribunal did not find that the Appellant's problems with either his physical or his mental health were sufficient to engage article 3; and it found that although his deportation would interfere with his right to a private life such interference was proportionate.
A deportation order was made on 17 September 2008. The following week the Appellant was taken to an interview at the Sierra Leone High Commission in order to obtain travel documents. However, the authorities there declined to accept that he was a national of Sierra Leone and said that they thought he was probably from Nigeria or Ghana.
There followed a long delay, apparently because of the Appellant's mental ill-health. He was transferred from detention to hospital in October 2008, and though he was returned to detention after ten weeks he remained unwell.
Apparently because of the impasse about the Appellant's nationality UKBA sought a "linguistic analysis report" from Sprakab, a Swedish body which provides opinions on a person's country of origin on the basis of a conversation with an expert analyst: details of its modus operandi appear in the case-law referred to below, and I need not go into them here. The conversation took place on 4 August 2009. Sprakab sent its report on 7 August, expressing the opinion that the Appellant spoke English of a kind not found in Sierra Leone but characteristic of Nigeria or Ghana.
Armed with that opinion, the Secretary of State concluded that the Appellant was, as his solicitors had asserted two years previously, of Nigerian nationality and that he should be returned to Nigeria. An approach was made to the Nigerian High Commission, who conducted a telephone interview with the Appellant on 25 August 2009 and on 27 August provided an emergency travel document. The document states on its face that the Appellant "has stated that he is a Nigerian" and that the responsible official has no reason to doubt that statement. The Appellant's solicitor has since reported that he denies ever having spoken to the High Commission.
The Appellant's deportation did not proceed at that point: again, there were problems with his mental health, and he also issued judicial review proceedings. He was eventually released from detention, following a court order, on 4 November 2010. He had been detained, apart from the time that he was in hospital, for three years.
On 23 December 2010, the Appellant's solicitors, T.V. Edwards LLP, wrote to the Secretary of State seeking to make a fresh claim for asylum or for the right to remain under articles 2, 3 and 8 of the Convention, and also applying under paragraph 390 of the Immigration Rules for the revocation of the deportation order made in September 2008. The basis of the claim was stated as follows:
"These fresh submissions are made on the following bases:
1. that removal of our client from the United Kingdom to Nigeria would be in breach of the Secretary of State's obligations under the 1951 Refugee Convention as our client has a well-founded fear of persecution on account of his sexuality; and
2. in light of our client's sexuality as well as his ongoing physical and mental health needs, that removal of our client would be in breach of his rights under Articles 2, 3 and 8 European Convention on Human Rights (ECHR)
Although these issues have previously been considered and rejected by the Secretary of State in respect of [RM], they stand to be reconsidered in light of the following fresh evidence that has not previously been considered:
1. recent case-law in respect of asylum claims made on the basis of fear of persecution due of sexuality.
2. the risk upon return to Nigeria due to persecution as a result of his sexuality; and
3. up-to-date medical evidence regarding [RM's] mental and physical health."
By letter from UKBA dated 11 March 2011 the Secretary of State accepted the representations as a fresh asylum and human rights claim but refused it. She also refused the application for the revocation of the deportation order. The letter is lengthy and somewhat repetitive. It can be sufficiently summarised for present purposes as follows:
(1) At paras. 38–57 consideration is given to the claim based on the Appellant's sexuality. The Secretary of State accepts that "homosexuality is illegal in Nigeria and that it is socially repressed" but she does not accept that the Appellant was homosexual. That point is made again at paras. 65–66 and 69.
(2) Para. 58 reads:
"With regard to your client's claim that he should be returned to Sierra Leone, we have noted that the findings of your client's language analysis test indicate that your client is most likely to be from Nigeria. Furthermore the Sierra Leone High Commission do not accept that your client is a citizen of that country. However, your client maintains that he is from Sierra Leone. In this regard it is noted that the tribunal in 2008 found your client to be lacking in credibility and your client's behaviour and accounts since that time tend to confirm this view."
That is oddly expressed, since the Appellant had made no "claim that he should be returned to Sierra Leone": on the contrary, T.V. Edwards had made clear that although their submissions were addressed to his risk on return to Nigeria, because that was where the Secretary of State was intending to deport him to, they believed that he would be at equal risk in either...
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