Upper Tribunal (Immigration and asylum chamber), 2020-01-21, JR/03571/2019

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: JR/3571/2019

Court 11

Field House

15‑25 Breams Buildings

London

EC4A 1DZ

6 January 2020

Before:

UPPER TRIBUNAL JUDGE GLEESON

B E T W E E N:

magUtuza

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Mr PHIL HAYWOOD appeared on behalf of the Applicant

Mr NICHOLAS OSTROWSKI appeared on behalf of the Respondent

APPROVED JUDGMENT

UTJ GLEESON: The applicant has permission to seek judicial review of the respondent’s decision on 2 July 2019 to refuse to revoke a deportation order and to refuse to treat his further submissions as a paragraph 353 fresh claim.

2. The applicant is a citizen of Zimbabwe and a long-term overstayer. The applicant has legal aid in these proceedings with effect from 14 October 2019.

3. He arrived in the United Kingdom on 5 May 2000, on a visit visa which was varied, in time, to a student visa, but has not had extant leave to remain since 30 September 2001. The applicant asserts that he claimed asylum on arrival at Gatwick Airport but thereafter he absconded, and that claim did not proceed beyond the initial screening interview.

4. Between October 2002 and August 2018, the applicant was convicted of 31 criminal offences on 16 occasions, including offences against the person, property offences, fraud and kindred offences, public disorder offences, offences relating to police, courts or prisons, and other miscellaneous offences. In April 2009, he was convicted of assault occasioning actual bodily harm, for which he was sentenced to 6 months’ imprisonment.

5. On 20 September 2010, the applicant was convicted of assault occasioning grievous bodily harm with intent, for which he was sentenced to 32 months’ imprisonment. The applicant is therefore a foreign criminal and sections 32 and 33 of the Borders Citizenship and Immigration Act 2009 apply to him. On 29 May 2012, the respondent made a deportation order. The applicant appealed unsuccessfully against that decision, but on 24 October 2012, his appeal against that decision was dismissed.

6. On 24 October 2012, the First-tier Tribunal sitting at Kingston Crown Court dismissed the applicant’s appeal against the deportation order. The applicant’s offender manager had raised the possibility that the applicant might be suffering from post-traumatic stress disorder. First-tier Judge Jhirad and Sir Jeffrey James KBE CMG (a non-legal Member) found the applicant to be an unreliable witness who had not discharged the paragraph 339L burden of establishing the facts on which he relied. No weight was placed on the offender manager’s opinion as she was not a psychiatrist, psychologist, or general practitioner and had not stated how she had reached her conclusion or what tests, if any, she carried out. They were not prepared to assume in the applicant’s favour that he would be unable to demonstrate loyalty to the regime in Zimbabwe, simply because the applicant asserted it.

7. In 2014, following further submissions, the respondent again refused to revoke the deportation order and refused international protection, relying on the previous finding by the 2012 Tribunal that the applicant was not a reliable witness, based on inconsistencies and contradictions in the account given in 2012, and his failure to claim asylum at the earliest opportunity.

8. The applicant appealed again to the First-tier Tribunal. First-tier Judge Landes on 2 April 2015 dismissed his appeal. The applicant did rely on having previously been arrested and tortured because of his refusal to carry out an assassination order while working for the CIO in Zimbabwe. At [34], the 2015 Tribunal noted that the applicant had been formally diagnosed with post-traumatic stress disorder, in a brief letter dated 15 February 2013 from Dr Al-Asadi at the Oxford Health NHS Foundation Trust and another letter from Dr Ashraf at the Westongrove Partnership dated 27 December 2012 confirming the diagnosis. The applicant was in the care of the Healthy Minds service, to whom he had been referred in December 2012.

9. In addition, the applicant had produced arrest warrants from Zimbabwe and a letter from a Zimbabwe MP, Mr Chihota, saying that he was to be prosecuted; and he said that that his brother had been arrested in Zimbabwe in December 2014 because the authorities discovered that he was communicating with the applicant.

10. The Tribunal set out the discrepancies in the applicant’s oral evidence and his asylum interview and found that there were ‘so many inconsistencies in the account the [applicant] gave to different people at different times about his family members. Taken together it is an indication that the applicant says whatever he feels is most convenient at the time about his family members, regardless of whether it is the truth’.

11. Even having regard to the mental health evidence, and giving weight to the delay in claiming asylum, the Tribunal found that the applicant’s core account lacked credibility. The Tribunal then discounted the Zimbabwean documents on the basis that the applicant had already been found not to be a credible witness. The First-tier Tribunal did not direct itself expressly as to the guidance set out in the starred decision of the Immigration Appeal Tribunal in Secretary of State for the Home Department v D (Tamil) [2002] UKIAT 00702 (Devaseelan). Observations at [54] may indicate that the Judge was aware of that responsibility. The applicant’s account was dismissed in its entirety and the appeal failed.

12. On 7 October 2018, the applicant was detained under immigration powers at the end of a custodial sentence of 12 weeks’ imprisonment for battery.

13. In November 2018, the applicant was interviewed by the Zimbabwean authorities to obtain a travel document and on 4 January 2019, the respondent served notice of arrangements for deportation. The applicant challenged that by judicial review: the respondent cancelled the deportation arrangements and agreed to consider his further representations, including new medical evidence. The further evidence was as follows:

1. A Rule 35 report by Dr Qusai Arsiwala dated 1 September 2014;

2. A Rule 35 report by Dr G Hillman, Consultant Psychiatrist, on 15 October 2015;

3. A medico-legal report by Dr Thelma Thomas of Medical Justice dated 10 December 2015;

4. A psychiatric report prepared by Professor Cornelius Katona of the Helen Bamber Foundation, former Dean of the Royal College of Psychiatrists dated 4 December 2016, supplemented by an addendum psychiatric report from the same author on 24 March 2017; and

5. The applicant’s witness statement dated 14 December 2018.

2. On 17 May 2019, the respondent refused to treat the further representations as a fresh claim and declined to revoke the deportation order. That is the decision against which this judicial review claim is made.

3. Permission for judicial review was granted on the basis that the respondent had arguably erred in concluding that the new material before her was not significantly different from the evidence previously considered. On 18 September 2019, the respondent filed detailed grounds of defence offering to reconsider the application and pay the applicant’s reasonable costs, arguing that the application had been rendered academic by her offer. The consent order was never sealed. It appears that two different case workers took different views on whether to defend this application: on 2 October 2019, the respondent withdrew her offer to reconsider, having concluded that ‘the case can and should be defended’.

4. Both parties have assisted the Upper Tribunal with written submissions before the substantive hearing, as well as a substantial bundle of agreed documents.

The applicant’s case

2. For the applicant, Mr Haywood relied on the summary of the fresh claim evidence at [1]-[38] of his 21 October 2019 skeleton argument. He argued that at the second First-tier Tribunal appeal in 2015, there was some very limited psychiatric evidence before the First-tier Judge, a short letter indicating that the applicant had a presentation consistent with post-traumatic stress disorder, but no evidence at all about the likely causation of scarring, now provided in Dr Thomas’ report.

3. The First-tier Tribunal in 2015 also did not have the benefit of the evidence of Professor Katona that the applicant’s psychiatric presentation might well be relevant in evaluating the manner in which he gave his evidence, and the possibility of consistency and/or omission, when credibility was assessed. The evidence of Professor Katona included an indication that the applicant might present as a risk of self-harm or suicide if returned.

4. The new evidence presented was relevant and cogent, and having regard to the modest test identified by Lord Justice Buxton (with whom Lord...