Upper Tribunal (Immigration and asylum chamber), 2014-03-25, IA/08762/2012
| Jurisdiction | UK Non-devolved |
| Date | 25 March 2014 |
| Published date | 27 January 2016 |
| Hearing Date | 17 December 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | IA/08762/2012 |
Appeal Number: IA/08762/2012
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/08762/2012
THE IMMIGRATION ACTS
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Heard at Field House |
Promulgated on: |
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On 29 October and 17th December 2013 |
On 25 March 2014 |
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Before
THE PRESIDENT, THE HON MR JUSTICE MCCLOSKEY
UPPER TRIBUNAL JUDGE DAWSON
Between
BACKO MENDENGUE
(No Anonymity Order made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Hussain (of Counsel), instructed by Burton & Burton Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer.
DETERMINATION AND REASONS
INTRODUCTION
1. This is the decision of the panel to which both members have contributed.
2. The Appellant is a national of The Cameroon, who is now aged 34 years. He has been present in the United Kingdom for some 10 years. His appeal to this Tribunal has its origins in a decision made on behalf of the Secretary of State for the Home Department (“the Secretary of State”) on 3 April 2012, whereby his application for asylum was refused for reasons given in a letter dated 27 March 2012. This was followed by a further letter dated 10 May 2012) communicating a decision to make a deportation order. The Appellant appealed to the First-Tier Tribunal (“the FtT”), unsuccessfully. He then appealed to this Tribunal which, by its determination dated 28th January 2013, held that the decision of the FtT was vitiated by an error of law, the nature whereof appears from the following passages:
“[23] In my view in order to make a proper sustainable finding in relation to section 55 of the 2009 Act and make a balanced assessment under Article 8, the First-Tier Tribunal should have made a clear and unambiguous finding in relation to the extent of the Appellant’s relationship with his children. Two of the children are British citizens and all of them are citizens of the EU …
[25] The First-Tier Tribunal considered the childrens’ best interests but did not reach a conclusion. The assessment was not adequate. …
A clear and unambiguous finding needs to be made in relation to the Appellant’s relationship and contact with his children and their best interests and the decision under Article 8 [ECHR] needs to be remade in light of those findings and there needs to be a proper consideration of the public interest.”
The Upper Tribunal set aside the decision of the FtT to dismiss the appeal under Article 8 ECHR accordingly.
3. By this further determination, the Upper Tribunal, having conducted hearings on 29th October and 17th December 2013, remakes the decision. As the above résumé demonstrates, the issues to be determined centre on the deportation provisions of the Immigration act 1971, certain provisions of the Immigration Rules, Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”).
CHRONOLOGY OF MATERIAL EVENTS
4. The salient events in the history of this appeal are uncontentious. We summarise them thus:
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The Appellant, who is a national of the Cameroon, now aged 34 years, arrived in the United Kingdom, entering and remaining unlawfully, on some unspecified date prior to November 2008.
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On 2nd November 2008, he was arrested on suspicion of having attempted to use a false passport to open a bank account in another name. He was charged with possession of a false identity document.
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On the same date, 2nd November 2008, the Appellant claimed asylum, asserting that he had travelled to the United Kingdom in September 2003 via France, where he had lived for some 9 months.
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On 24th November 2008, the Appellant was sentenced to ten months imprisonment for possessing and using a false instrument. Further, the Court recommended his deportation.
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On 31st December 2008, the Appellant was notified of a decision to make a deportation order.
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On 3rd April 2009, following his release from prison, he was granted immigration bail, with the remainder of his sentence to be served in the community until 1st March 2010.
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On 15th May 2009 the Appellant was arrested on suspicion of having committed the offence of common assault. The victim was his first female partner, “A” (infra).
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On 16th July 2009, the child “J” was born to “A”, the Appellant being the paternal father.
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On 6th November 2009, the Appellant, having pleaded guilty to the assault charge, was sentenced to 50 days imprisonment.
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When sentenced, the Appellant was time served.
(At this point in the chronology there is a reasonably substantial gap of approximately one year’s dimensions.)
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In October and November 2010, the Appellant enrolled for two educational courses.
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In the year 2011, the Appellant became the father of two children by two different mothers. The child “R” was born to “AA” on 29th January 2011. The child “M” was born to “A” on 26th November 2011.
5. Chronologically, the next material event was the Secretary of State’s decision in April 2012 rejecting the Appellant’s asylum claim. The claim was based on an asserted fear of the Cameroonian Secret Services arising out of the Appellant’s political activities when a university student. The detailed letter of decision makes clear that the claim was rejected primarily on the ground that it was not genuine or credible. The reasons for this assessment were expressed in impressive detail which it is unnecessary to reproduce in the present context, as the Appellant subsequently abandoned his appeal against the refusal of refugee status. It suffices to highlight that the Appellant did not pursue his appeal against a decision which contained findings of mendacity against him. The Secretary of State’s also entailed that deportation of the Appellant would not infringe any of the rights of those concerned protected by Article 8 ECHR. This was followed by the separate decision to make a deportation order, in May 2012 (supra).
THE FAMILY FRAMEWORK
6. The family matrix under scrutiny is somewhat complex. It involves the Appellant, two women from whom the Appellant is estranged, three children born to these women and of whom the Appellant is the biological father and, finally, the Appellant’s current female partner. We preface this summary with the observation that the dates, periods and sequences pertaining to the Appellant’s unmarried relationships with the two ladies mainly concerned are far from clear. We do not consider it necessary to disentangle forensically and comprehensively this complex jigsaw. The most important finding which emerges, in our estimation, is that the Appellant moved swiftly backwards and forwards between the two female partners concerned and liberally deceived and cheated on them. This is illustrated most graphically by the fact that the Appellant fathered two children born separately to these two ladies within a period of ten months, in 2011: see paragraph [4](l) supra.
7. We elaborate on this complex web of adult/adult and parent/children relationships as follows:
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‘AA’ was, historically, the Appellant’s first female partner. We accept the Appellant’s assertion that this relationship began around 2006. At that time, AA was the mother of two children born in 1996 and 1999 respectively. The Appellant assaulted AA on 15th May 2009, shortly after his release from prison, giving rise to his second conviction, made on 6th November 2009. This relationship appears to have been re-established to some extent, resulting in ‘AA’ giving birth to ‘M’ on 17 November 2011.
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‘AN’ was the Appellant’s second female partner. Based on the date of birth of their child, R, on 29th January 2011, this relationship appears to have commenced some time in 2010, not long after the Appellant’s conviction for assaulting his first female partner ‘AA’. In a letter dated 7th May 2011, written six months before ‘M’s’ birth, AN roundly denounced the Appellant, declaring her relationship with him to be finished, complaining that he was providing her with no support.
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We note that in support of his Article 8 ECHR claim, the Appellant submitted both a witness statement and a letter of support from ‘AA’, dated 15th and 17th January 2011 respectively. The Appellant’s son ‘R’ was born to a different female partner, ‘AN’, some two weeks later.
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The Appellant’s relationship with ‘AA’ appears to have ended, when she was expecting their second daughter. Notably, the FtT recorded in its determination the Appellant’s claim that he was in an enduring relationship with “AA”. We find that this was mendacious. We further find that neither of his female adult...
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