Upper Tribunal (Immigration and asylum chamber), 2020-07-10, [2020] UKUT 267 (IAC) (R (on the application of L) v Secretary of State for the Home Department (return of person removed: discretion))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge O'Connor |
| Status | Reported |
| Date | 10 July 2020 |
| Published date | 10 September 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | return of person removed: discretion |
| Hearing Date | 15 June 2020 |
| Appeal Number | [2020] UKUT 267 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of L) v Secretary of State for the Home Department (return of person removed: discretion) [2020] UKUT 00267 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House (Court 5) via Skype for Business |
Judgment Promulgated |
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On 15 June 2020 |
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…………………………………
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE O’CONNOR
Between
The Queen
on the application of l
(ANONYMITY ORDER MADE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Applicant: Mr A Briddock, Counsel, and Mr D Grütters, Counsel, instructed by the Camden Community Law Centre
For the Respondent: Mr C Thomann, Counsel, instructed by the Government Legal Department
(1) A decision to remove a person (P) from the United Kingdom under immigration powers will not be unlawful by reason of the fact that it is predicated upon an earlier decision which has not, at the time of removal, been found to be unlawful, but which later is so found: AB v Secretary of State for the Home Department [2017] EWCA Civ 59; Niaz (NIAA 2002 s.104: pending appeal) [2019] UKUT 399 (IAC).
(2) The fact that P’s removal was not unlawful will not necessarily preclude a court or tribunal on judicial review from ordering P’s return. The fact it was lawful will, however, be a “highly material factor against the exercise of such discretion”: Lewis v Secretary of State for the Home Department [2010] EWHC 1749 (Admin).
(3) Where P’s removal was unlawful, by reference to the position at the time of removal, that fact should not only constitute the starting point for the Tribunal’s consideration of the exercise of its discretion to order return, but is also likely to be a weighty factor in favour of making such an order. The same is true where the effect of P’s removal has been to deprive P of an in-country right of appeal.
JUDGMENT
A. BACKGROUND
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The applicant is a citizen of Nigeria. He entered the United Kingdom in 2005 as a student. He subsequently obtained further leave to remain in that capacity to April 2010. He said that he met his wife, an Italian citizen, in 2006.
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In January 2012, the applicant came to the attention of the United Kingdom authorities, when he was arrested on suspicion of fraud. He claimed to have lived in Italy with his wife and daughters from 2009 until his arrest in 2012. The couple had a son and daughter born in Italy in, respectively, 2009 and 2012.
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On 6 December 2013, the applicant was convicted at Chelmsford Crown Court on two counts of cheating the Public Revenue. On 5 September 2013, the applicant was sentenced to four years and six months’ imprisonment on each count, to run concurrently. In his sentencing remarks, the judge described the applicant as the “prime mover” in a criminal enterprise of almost three years’ duration, whereby the applicant and others under his control deployed stolen identities in order to submit 154 successful, but fraudulent VAT returns and repayment claims. The sums secured were laundered through a series of different accounts at substantial, and irrecoverable, cost to the United Kingdom taxpayer.
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On 23 September 2014, the applicant made a claim for asylum. In November 2015, however, he notified the respondent’s Criminal Casework Directorate that he wished to withdraw the claim; and that he had applied for a residence card as a member of the family of an EEA national, namely his wife. That application was refused on 25 November 2015. The applicant lodged an appeal against the refusal. Directions for the applicant’s removal from the United Kingdom were cancelled, in order for the respondent to ascertain the status of the appeal. A renewed date for removal was then set for 26 January 2016 and the applicant served with new removal directions on 14 January 2016.
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Those directions were cancelled when, on 26 January 2016, the applicant made a fresh claim for asylum. A substantive asylum interview took place with the applicant in June 2016 and on 29 July 2016 the applicant’s representatives served further materials on the respondent in connection with that claim.
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On 25 April 2017, the respondent refused the asylum claim. The respondent’s decision runs to 155 paragraphs. It began by accepting that the further submissions amounted to a fresh asylum claim within paragraph 353 of the Immigration Rules. Given the terms of paragraph 353, this meant that the respondent was satisfied that the submissions had not already been considered and that “taken together with the previously considered material, [they] created a realistic prospect of success, notwithstanding its rejection”. As we shall see, this factor is important.
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The refusal decision explained why the respondent decided to certify the applicant’s asylum claim under section 72 of the Nationality, Immigration and Asylum Act 2002. The respondent was satisfied that the applicant’s convictions comprised the final judgment by a court of the United Kingdom of conviction of a particularly serious crime, such that the applicant constitutes a danger to the community of the United Kingdom.
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The decision letter then proceeded to consider the applicant’s claim to be at risk of serious harm, if returned to Nigeria. The two bases of the applicant’s claim were that he is bi-sexual and had converted to Christianity from Islam. The applicant said that in May 2013 he had returned to Nigeria for a holiday and that his friends there had arranged a sex party involving male prostitutes. The applicant agreed to pay a substantial sum of money towards the costs of hiring the prostitutes. The applicant left Nigeria, returning to Italy in June 2013, where he remained until August 2013 when he travelled to the United Kingdom, being arrested upon arrival and subsequently imprisoned.
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As this meant the applicant had been unable to pay the balance of the money owed to the male prostitutes, they began to hassle his friends in Nigeria; and those friends gave the male prostitutes the contact details of the applicant’s family. The applicant also believes that the male prostitutes reported him to the Nigerian police. He said that the police had been to his family home in Nigeria in January 2016, looking to arrest the applicant for taking part in a gay sex party and having sex with another man.
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The applicant also said he had received threats from his family and from friends of his father because they had discovered his bi-sexuality and his conversion to Christianity. His wife had also been made aware of the family’s attitude. All this had caused the applicant to become anxious and depressed.
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The decision letter considered the background information on the attitude of the Nigerian authorities towards gay men. It was accepted that societal hostility and discrimination against LGBT persons exists in Nigeria and that same sex relationships there are illegal. Prosecutions are, however, rare.
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The respondent did not accept that the applicant had returned to Nigeria in May 2013. Nothing in his passport indicated such travel, there being no Nigerian entry or exit stamps.
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The respondent’s overall conclusion was that the timing of the applicant’s claim for asylum meant it had been fabricated in an attempt to frustrate his removal from the United Kingdom. The decision did, however, consider the general evidence regarding religious conversion from Islam to Christianity in Nigeria. It was concluded that there were avenues of redress available to the applicant, if he were to encounter difficulties on return in this regard. It was, therefore, not accepted that the applicant had a well-founded fear of return to Nigeria on the basis of the risk posed to him by non-state agents on the grounds of religious intolerance.
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The decision then addressed the ability of the applicant to relocate within Nigeria, concluding that there were parts of Nigeria, in which he would not have a well-founded fear of persecution, to which it would be reasonable to expect the applicant to go.
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Having considered the position regarding treatment for mental illness in Nigeria, the decision then explained why the respondent concluded under paragraph 339D of the Immigration Rules that the applicant had committed a serious crime, such as to deprive him of the benefits of humanitarian protection.
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After considering, and rejecting, the applicant’s claim by reference to Article 8 of the ECHR, the applicant was given a section 120 notice, requiring him to tell the respondent if the applicant’s circumstances changed, such that he had new reasons for wishing to remain in the United Kingdom.
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The decision ended by informing the applicant that he had a right of appeal against the decision, exercisable under section 82(1) of the 2002 Act. The decision stated that the respondent had decided not to certify the applicant’s human rights claim under section 94B of the 2002 Act; but this was not to be treated as a “concession that the Secretary of State is satisfied that there will be a real risk of serious irreversible harm, before the appeal...
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