Upper Tribunal (Immigration and asylum chamber), 2019-06-05, HU/14036/2018
| Jurisdiction | UK Non-devolved |
| Date | 05 June 2019 |
| Published date | 01 August 2019 |
| Hearing Date | 29 May 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/14036/2018 |
Appeal Number: HU/14036/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14036/2018
THE IMMIGRATION ACTS
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Heard at Manchester |
Decision & Reasons Promulgated |
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On 29 May 2019 |
On 05 June 2019 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
AKTAR HUSSAIN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr H B Semega-Janneh (counsel) instructed by Shah Jalal Solicitors
For the Respondent: Mr A McVetty, Senior Home Office Presenting Officer
DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Garratt promulgated on 11 February 2019, which dismissed the Appellant’s appeal.
Background
3. The Appellant was born on 4 May 1974 and is a national of Bangladesh. On 20 April 2017 the Appellant applied for leave to remain in the UK. On 13 June 2018 the Secretary of State refused the Appellant’s application.
The Judge’s Decision
4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Garratt (“the Judge”) dismissed the appeal against the Respondent’s decision. Grounds of appeal were lodged and on 19 March 2019 Judge Keith granted permission to appeal stating
“2. The grounds assert that the Judge erred in applying the wrong standard of proof - while the Judge considered the appellant’s appeal, including by reference to articles 2 and 3 of the European Convention on Human Rights (“ECHR”), as well as article 8, the Judge referred, at [29] to the standard of proof being the “balance of probabilities”, which was inconsistent with the authority of HKK (article 3: burden and standard of proof) Afghanistan [2018] UKUT 386 (IAC)
3. In an otherwise well-reasoned determination, it appears that the Judge assessed the appellant’s appeal, including by reference to articles 2 and 3 of the ECHR, when he referred to both of those articles at [36] of the reasons; and to “serious harm” at [40]. However, it is potentially unclear what standard of proof the Judge applied in assessing the appeals under articles 2 and 3, so that the Judge arguably erred in applying too high a standard.”
The Hearing
5. (a) For the appellant, Mr Semega-Janneh moved the grounds of appeal. He told me that the Judge applied the wrong standard of proof in considering articles 2 and 3 ECHR grounds of appeal. He took me to [29] of the decision where the Judge identifies the standard of proof as the balance of probabilities. He relied on Kacaj (Article 3 – Standard of Proof – Non-State Actors) Albania [2001] UKIAT 00018 and HKK (Article 3: burden/standard of proof) Afghanistan [2018] UKUT 00386(IAC).
(b) I drew Mr Semega-Janneh’s attention to the grounds of appeal to the First tier Tribunal, and asked if he could identify whether any grounds of appeal were pled other than article 8. He told me that paragraph 21 of the grounds of appeal raise (at least implicitly) articles 2 and 3 ECHR grounds and that, in any event, at [36] the Judge finds that the grounds of appeal encompass articles 2 and 3 of the 1950 convention.
(c) Counsel for the appellant told me that the correct standard is a real risk or substantial grounds for believing that article 3 would be breached, and that the Judge applied a higher standard of proof. He asked me to set the decision aside.
6. For the respondent, Mr McVetty told me that the decision does not contain errors of law, material or otherwise. He told me that the original application proceeded on article 8 ECHR grounds only, and that the grounds of appeal to the First-tier tribunal raises only article 8 grounds. He reminded me that after the grounds of appeal were lodged the appellant could only amend the grounds of appeal and introduce new matters with the consent of the respondent. He told me that no attempt had been made to either amend the grounds of appeal or to seek the respondent’s consent to extending the grounds of appeal to a new matter. Mr McVetty told me that [29] of the decision is correct and that the Judge has applied the correct standard of proof because the only matter competently before the Judge was an appeal on article 8 ECHR grounds.
Analysis
7. In HKK (Article 3: burden/standard of proof) Afghanistan [2018] UKUT 386 (IAC) it was held that (1) It has long been a requirement, found in the case law of the European Court of Human Rights (“ECtHR”), for the government of a signatory state to dispel any doubts regarding a person’s claim to be at real risk of Article 3 harm, if that person adduces evidence capable of proving that there are substantial grounds for believing that expulsion from the state would violate Article 3 of the ECHR; (2) This requirement does not mean the burden of dispelling such doubts shifts to the government in every case where such evidence is adduced, save only where the claim is so lacking in substance as to be clearly unfounded; (3) Article 4.5 of the Qualification Directive (Council Directive 2004/83/EC) provides that, where certain specified conditions are met, aspects of the statements of an applicant for international protection that are not supported by documentary or other evidence shall not need confirmation;(4) The effect of Article 4.5 is that a person who has otherwise put forward a cogent case should not fail, merely because he or she does not have supporting documentation. Nowhere in the Directive is it said that a person who has documentation which, on its face, may be said to be supportive of the claim (e.g. an arrest warrant or witness summons), but whose claim is found to be problematic in other respects, has nevertheless made out their case, so that the burden of disproving it shifts to the government.
8. In Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040 (IAC) the Tribunal held that it is for a claimant to establish that the requirements of the Immigration Rules are met or that an immigration decision would be an interference with established family life. In both cases, the relevant standard for establishing the facts is the balance of probabilities.
9. In Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260 the Court of Appeal held that a failure of the respondent to serve a section 120 did not render a decision unlawful. An appellant on whom no section 120 notice has been served may not raise before the Tribunal any ground for the grant of leave to remain different from that which was the subject of the decision of the Secretary of State appealed against.
10. In FG v Sweden App No 43611/11 ECtHR Grand Chamber the Appellant did not pursue a claim that he was at risk because of converting to Christianity before the Migration Board, but later sought to rely on Articles 2 and 3. It was held that (in the case of Articles 2 and 3 at least) national courts must be alive to obvious human rights points even when they are not adverted to or relied on by a claimant. The Swedish court should have known it was required to carry out an assessment of all potential ECHR arguments, analogous to the Robinson obvious test.
11. Section 85 of the 2002 Act prevents the Tribunal considering a “new matter” unless the respondent gives consent. In Mahmud (S85 NIAA 2002 – “new matters”) [2017] UKUT 488 (IAC) it was held that (i) Whether something is or is not a 'new matter' goes to the jurisdiction of the First-tier Tribunal in the appeal and the First-tier Tribunal must therefore determine for itself the issue; (ii) A 'new matter' is a matter which constitutes a ground of appeal of a kind listed in section 84, as required by section 85(6)(a) of the 2002 Act. Constituting a ground of appeal means that it must contain a matter which could raise or establish a listed ground of appeal. A matter is the factual substance of a claim. A ground of appeal is the legal basis on which the facts in any given matter could form the basis of a challenge to the decision under appeal; (iii) In practice, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter. The assessment will always be fact sensitive. Examples were given. Where a relationship had previously been relied on and considered by the SSHD then the fact the couple had married would be new evidence but not a new matter. Conversely the fact the couple had a child was likely to be a new matter. Actual consideration in a decision letter of the new factual matrix relied upon is required for a matter not to be a “new matter”.
12. In AK and IK (S.85 NIAA 2002 - new matters) Turkey [2019] UKUT 67 it was held that if an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim from that relied upon in his application for LTR on human...
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