Upper Tribunal (Immigration and asylum chamber), 2016-11-21, OA/01355/2014
| Jurisdiction | UK Non-devolved |
| Date | 21 November 2016 |
| Published date | 15 September 2020 |
| Hearing Date | 18 October 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | OA/01355/2014 |
Appeal Number: OA/01355/2014
IAC-CH-SA-V
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/01355/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 20th May 2016 (Error of Law) And 18th October 2016 |
On 21st November 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
ECO
and
G F
(anonymity direction MADE)
Claimant
Representation:
For the ECO: Mr T Wilding, Home Office Presenting Officer
For the Claimant: Mr G Lee (Counsel)
DECISION AND REASONS
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity having previously been ordered in the First-tier Tribunal and there being no application to remove the order, I see no reason to do so and the order remains in place. Unless and until a Tribunal or a court directs otherwise, the Claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Claimant and to the ECO. Failure to comply with this direction could lead to contempt of court proceedings.
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The ECO (ECO) appeals with permission a decision of the First-tier Tribunal Judge Andonian allowing the Claimant’s appeal against the ECO’s decision to refuse him entry clearance to be reunited with his wife and seven children present in the United Kingdom with refugee status.
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The ECO Claimant was the ECO before the First-tier Tribunal, and the Sudanese national was the Claimant. For ease of reference I use ECO and Claimant to refer to the parties.
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On 18 November 2013 the ECO refused this Sudanese national’s application for entry clearance to be reunited with his wife and children in the UK on four grounds.
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Firstly, with reference to the substantive family re-union Immigration Rules’ requirements at paragraph 352A(i), (iv):
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“I am not satisfied that you are the spouse of a person granted refugee status in the United Kingdom, and that you and your Sponsor intend to live together in the United Kingdom.”
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Secondly, with reference to the mandatory documentary requirements at paragraph 320(3):
“I am satisfied that you have failed to satisfactorily establish your identity and nationality. I am therefore not satisfied with your identity.”
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Thirdly with reference to the general reasons for refusal mandatory requirements at paragraph 320(7A):
“I am satisfied that the Ugandan passport presented as (sic) a genuine document. However, it is a genuine document and it incorporates false information.” KB (Para: 320(7A): “False Representations”) Albania [2009] UKAIT 00043.
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Fourthly with reference to the general reasons for refusal discretionary ground at paragraph 320(19):
“You are the leader of the Justice and Equality Movement (JEM). I am aware from official reporting and media reporting that JEM continues to be involved in fighting against the Sudanese government forces. As the head of JEM, and prior to you taking the leadership, you have played a significant role in the conflict in Darfur. In view of the above, I am satisfied that your exclusion from the United Kingdom is conducive to the public good on the basis of your conduct, character and associations.”
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Judge Andonian resolved the family reunion disputes concerning Rule 352A (i) and (iv) in favour of the Claimant. The Grounds of Appeal to the Upper Tribunal did not extend to encompass those findings. Judge Andonian resolved the mandatory grounds of refusal Rule 320 (3) and 320(7A) and the discretionary grounds of refusal at Rule 320(19), in favour of the Claimant. The Judge allowed the appeal on Immigration Rules grounds. The grounds of appeal to the UT concern the Judge’s conclusions in respect of the Rule 320 parts of the ECO’s decision, and argue that, in any event, the Judge did not have jurisdiction.
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Following an initial hearing in the Upper Tribunal [UT], and in a decision dated 20 May 2016, I concluded that the judge had erred in allowing the appeal on Immigration Rules grounds. I found that the Judge did have jurisdiction. I found the mandatory requirements of 320(3), as they were at the date of decision, and they have changed since, amounted to a mandatory strict formal documentation requirement, which, it was conceded, the Claimant had not met. As a result, the rules-based grounds of appeal before the First-tier Tribunal were bound to fail, despite the positive findings in relation the subsistence of the marriage relationship. It followed that Judge Andonian’s allowing of the appeal on rules-based grounds was vitiated by error and could not stand. Turning to the other rules-based parts of the decision, in respect of the consideration of 320 (7A), I found an error of law in failing to resolve and reason the factual dispute as to whether the Ugandan passport was a false document. In respect of 320(19), I found an error of law in the conflation of the Article 1F test with the paragraph 320(19) test. The full reasons are set out in that decision and need not be repeated here.
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I relisted the matter to remake the decision in the UT, including determining the outstanding factual dispute as to whether the passport was a false document. In light of Judge Andonian’s unchallenged resolution of the family reunion dispute in favour of the Claimant, the issue of Article 8 family and private life rights remains live. In those circumstances, both representatives recognised that if I found for the ECO on 320(3), as I have done, 320(19) is not determinative, and the dispute ultimately falls to be resolved in an Article 8 consideration. The Article 8 assessment must start with a correct evaluation of the rules-based position, including of the mandatory refusal provisions at 320(7A), and the discretionary refusal provisions at 320(19). At the commencement of the rehearing in the UT, I set out the above as the structure of my decision-making task and the representatives were in agreement with that approach.
Background
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I set out my introduction from the error of law decision to provide the background information to this case.
“2. There is a lengthy history with a number of unusual features. This Claimant entered the United Kingdom in 2006 and made a claim for asylum. The ECO refused the asylum claim but granted 6 months’ discretionary leave on 27 October 2007, affording no right of appeal. During the currency of that leave the Claimant made a second claim for asylum, the decision which followed has been subject to successful challenge on more than one occasion, so that at what was to become a significant turning point in the Claimant’s case: 2012, he still awaited a lawful decision in respect of the Asylum claim, but also in respect of variation of his application based on a “legacy policy” as well as accumulating 6 years continuous residence under the discretionary leave policy.
3. The SSHD is, to say the least, unhappy about the Claimant’s involvement in the Sudanese civil war. Efforts to decide the case against the Claimant because of this history have been thwarted by errors in her consideration. This second asylum claim has been repeatedly returned to her for further consideration. The Claimant has been determined not to have fallen foul of Article 1F (c) of the refugee convention. The asylum claim remains undetermined, and is the subject of proceedings in the High Court currently, apparently at the instigation of the Claimant in order to prompt a “lawful decision”. The basis of that case and matters arising from his presence abroad are not germane to my consideration save as background of the chronology.
4. Following making the second claim for Asylum the Claimant travelled extensively, initially on his previous issued Sudanese passport, now expired, and in any event lost in the keeping of the ECO. He has also been afforded travel facilities by the UK Government, sometimes at the direction of the Courts, and sometimes through Ministerial intervention. On one occasion in March 2012 his return to the UK was facilitated, even though the issued travel document had expired. The Claimant has managed to participate, as the leader of the Justice and Equality Movement, in the Sudanese peace talks.
5. Having afforded travel facilities to the Claimant in 2012 the ECO then failed, later in 2012, to issue him with a new travel document. On the evidence that refusal was maintained after Mr Cameron acknowledged the Claimant’s beneficial role in the peace talks and his assuring him that a travel document would be available to attend pending peace talks. In the event nothing was forthcoming, and having been offered passport facilities by the Ugandan Government in order to be able to attend the said talks, the Claimant was provided with a Ugandan passport. He used the passport to travel and participate in the peace process, leaving the United Kingdom on 24 July 2012. In October 2012 the Claimant asked the ECO to permit him to return to the United Kingdom only to find...
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