Upper Tribunal (Immigration and asylum chamber), 2016-11-29, AA/11394/2015 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 29 November 2016 |
| Published date | 09 October 2020 |
| Hearing Date | 09 November 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/11394/2015 & Ors. |
Appeal Numbers: AA/11394/2015
AA/11397/2015
AA/11401/2015
AA/11403/2015
IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/11394/2015
AA/11397/2015
AA/11401/2015
AA/11403/2015
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 9 November 2016 |
On 29 November 2016 |
|
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Before
DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON
Between
VR
KO
RO
RO
(ANONYMITY DIRECTION MADE)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Ms M Knorr, Counsel, instructed by Southwark Law Centre
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer
DECISION AND REASONS
Background
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The first appellant in this case, Ms VR, is a citizen of Nigeria and the second to fourth appellants are her children, two daughters and a son, who are minors. The appellants appealed against a decision, made by the respondent on 7 August 2013, to refuse to grant asylum. In a decision promulgated on 25 July 2016 Judge of the First-tier Tribunal Herlihy dismissed the appellants’ appeal on asylum grounds, on humanitarian protection grounds and under the Immigration Rules. Judge Herlihy allowed the appellants’ appeal on human rights grounds, under Article 8 outside the Immigration Rules.
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I refer to my Decision and Reasons, appended to this decision, heard at Field House on 5 October 2016 and promulgated on 20 October 2016. In that decision I dismissed the respondent’s appeal against Judge Herlihy’s Article 8 decision for the reasons set out. I also set aside Judge Herlihy’s decision in relation to the appellant’s appeal on asylum, humanitarian protection and human rights grounds Article 3.
The Hearing
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That decision comes before me to be remade. At the hearing on 9 November Ms Knorr confirmed the position, as set out on 5 October 2016, that the first appellant is not fit to give evidence for the reasons set out in the second expert report of Dr Susan Fairweather, consultant psychiatrist. In her second report dated 28 September 2016 Dr Fairweather confirmed at paragraph 7.6.1 that although in her report of 17 June 2016 she was of the view that the first appellant was fit to give evidence, in light of her most recent assessment she changed this opinion and for the reasons set out believed that the appellant was not fit to give evidence. Mr Tarlow confirmed at the outset that he was not seeking to challenge this assessment. Although therefore Dr Fairweather had helpfully attended the Upper Tribunal, both on 5 October 2016 and 9 November 2016, it was not necessary to hear oral evidence.
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The hearing proceeded by way of submissions only and these are set out in full in the Record of Proceedings. The documentation before me included the respondent’s bundle in the usual form, the appellant’s consolidated bundle, together with additional case law and guidance relied on and a skeleton argument. I considered all the evidence and information before me even if not referred to specifically below. At the end of the hearing I reserved my decision which I now give.
Preliminary Issue
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The respondent in the grounds of appeal to the Upper Tribunal dated 5 August 2016 had argued that the second to fourth appellants, three of the first appellant’s four children, did not have rights of appeal as there had been no rejection of their claim, for the purposes of Section 82 of the 2002 Act as amended by the Immigration Act 2014.However, Mr Tarlow indicated at the outset of the hearing that the second to fourth appellants did have a right of appeal under Section 82 of the 2002 Act.
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On 28 October 2014 the first appellant and her three children claimed asylum. I note that the first appellant’s screening and asylum interview specifically indicates that the first appellant was claiming not only on her own behalf but also for her children. For example, at question 4.2 of the screening interview, the appellant when asked to briefly explain why she could not return to her home country referred to her own circumcision and that if she returned “my two daughters will be circumcised”.
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Additionally in the screening interview (continuation sheet A12) the first appellant when asked if there was anything further she wanted to add referred to the fact that she had come to the UK “around thirteen years ago” for “sex work” and that she did not “want my children to suffer like I did. I have been through horrible things”. In the substantive asylum interview the appellant again, including at question 155, indicated that she feared for her daughters “because they are going to be cut”. Additionally she indicated that “my boy because of his special language he will be labelled and ostracised”. The first appellant went on to provide further details in relation to what she alleged were difficulties for her children on return to Nigeria.
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I note on 19 November 2014, prior to that substantive asylum interview the appellant’s solicitors wrote to the respondent in response to a Section 120 notice. This letter indicated that the first appellant and her then three children (the fourth child, who it is not disputed is not an appellant, was not yet born at this stage) relied on a number of additional grounds in relation to ‘risks on asylum and human rights grounds’, The letter set out, inter alia, the risk of Female Genital Mutilation (FGM) to the first appellant’s two daughters and the risk to her son in relation to his developmental delay. In addition the appellant’s representatives then submitted further representations following the interview detailing the asylum and human rights grounds for each of the four appellants.
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I note and it was not disputed by Mr Tarlow that the respondent’s decision refusing the asylum and human rights claim addressed the claims in relation to all of the appellants.
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Whilst the respondent at the error of law hearing initially sought to rely on the fact that notices were issued to the second to fourth appellants stating that they did not have a right of appeal as they were dependants, Mr Tarlow did not dispute before me that each appellant had made an asylum and human rights claim which had been refused and therefore had a statutory appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended.
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Despite these notices the four appellants all lodged grounds of appeal which were accepted. Mr Tarlow did not dispute the argument that this situation was analogous to that in Abiyat & Ors (rights of appeal) Iran [2011] UKUT 00314 (IAC), a decision of the Vice President, Mr Ockelton. Although that was in relation to the rights of appeal under Section 83 of the Nationality, Immigration and Asylum Act 2002, there are parallels to the amended Section 82.
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I accept the argument that the jurisdiction does not come from the notices themselves but rather that the Secretary of State had in actuality refused protection claims that had been made by all four appellants.
The Respondent’s Case
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The refusal addressed to the first appellant dated 7 August 2015 accepted that the appellants are Nigerian nationals. The respondent detailed that the appellant had travelled to the UK from Nigeria by plane, using false documents on an unknown date in 2000. The first appellant then returned to Nigeria using false documents. On 19 February 2007 the first appellant was granted a visa to enter to the UK valid until 19 August 2007. On 13 August 2007 she was issued with a visit visa valid until 13 August 2009. The first appellant arrived again in the UK on 8 November 2007 before returning to Nigeria after approximately three months. In April 2008 the first appellant travelled to the UK again flying to Gatwick Airport on a valid visit visa. On 10 December 2009 the first appellant applied for leave to remain as a dependent spouse. This was rejected with no right of appeal on 30 March 2010. On 30 March 2010 the first appellant applied for leave to remain as a dependent spouse again which was refused with no right of appeal on 30 March 2011. On 2 April 2012 the first appellant applied for leave to remain under the family and private life Rule which was again refused with no right of appeal on 13 June 2013. On 28 October 2014 the first appellant attended an appointment to raise an asylum claim. On 15 April 2015 a referral was made to the National Referral Mechanism in order for a competent authority to make a decision as to whether the first appellant was a victim of trafficking.
The Competent Authority Decision
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The decision was dated 17 July 2015 although I accept that it was not received by the appellant or her representatives at that time. The conclusive grounds decision accepted that there were reasonable grounds to believe that the appellant was a potential victim of trafficking. Following on from the reasonable grounds decision of 15 April 2015 a conclusive grounds decision was made and it was considered that the appellant’s account was internally consistent but remained uncorroborated.
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However, the decision went on to consider that the first appellant did not recall either when she arrived or...
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