Upper Tribunal (Immigration and asylum chamber), 2020-12-08, PA/03385/2019 & EA/07252/2018
| Jurisdiction | UK Non-devolved |
| Date | 08 December 2020 |
| Published date | 06 January 2021 |
| Hearing Date | 15 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/03385/2019 & EA/07252/2018 |
PA/03385/2019 & EA/07252/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/03385/2019 (V)
EA/07252/2018 (V)
THE IMMIGRATION ACTS
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Heard at Field House Remotely |
Decision & Reasons Promulgated |
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On 15th October 2020 |
On 8th December 2020 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
Mr I A
(aNONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M J Azmi, instructed by Turpin & Miller LLP
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant is a Palestinian national born on 18th July 1970 and he appealed against the decision of the Secretary of State dated 15th March 2019 which refused his international protection and humanitarian protection claim and simultaneously refused his application to remain under the EEA European Economic Area Regulations 2016. On 13th June 2018 the Secretary of State wrote to the appellant explaining that Section 32(5) of the UK Borders Act 2007 required that a deportation order should be made against him unless he could demonstrate that he fell within any of the specified exceptions. That decision also noted that he had an outstanding asylum claim from 2014. The appellant appealed.
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His appeal came before First-tier Tribunal Judge Birk, who dismissed the appeal on all grounds on 24th July 2019. The appellant challenged the First-tier Tribunal decision as containing a material error of law. It was submitted that a Medical Foundation Report of 2012 was not before the Upper Tribunal in 2014 but presented to Judge Birk in 2019 (by different solicitors) and the report set out fourteen marks attributable to maltreatment, however, no finding was made on torture. Had findings been made the account of the incidents asserted were likely to be credible, that is, the appellant was fingerprinted and forced to sign a blank form which he says was a confession and only released by the intervention of the Red Cross. That would of itself raise the issue of past persecution. The appellant’s passport had now expired, and he would be with the strict regime unlikely to be allowed to enter the Gaza Strip and of interest to the Israeli authorities.
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These grounds set out above were found to have force and constitute a material error of law. The determination of the First-tier Tribunal was set aside by a decision of the Upper Tribunal dated 24th December 2019. There were no preserved findings of fact.
History
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The appellant arrived in the in the United Kingdom on 7th April 2010 on the basis of a dependent spousal visa valid until 28th February 2011. During the currency of that leave, on 22nd November 2010, he made an asylum claim which was refused and his appeal was dismissed by the First-tier Tribunal on 10th December 2010. The Upper Tribunal comprising a panel of Upper Tribunal Judge C Lane and Designated Judge McClure on 31st January 2014 set aside the decision of the First-tier Tribunal, but dismissed the appeal, and made various findings which I will revisit later in this decision. His appeal rights were exhausted on 18th July 2014. On 1st August 2014 the appellant made further submissions which were ultimately dealt with in 2019 by the Secretary of State.
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In April 2015 the appellant commenced a relationship with Mrs EK, a national of Hungary, and on 30th January 2016 their son was born and who was granted British citizenship on 18th April 2018. The couple married on 7th July 2016 and on 29th November 2016 the appellant applied for an EEA residence card on the basis that he was a family member of an EEA national and qualified person, namely his sponsor wife.
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However, on 18th May 2018 at Reading Crown Court the appellant was convicted of eight counts of dishonestly making false representations to make gain for himself or another or cause loss to another/expose others to risk and four counts of making/supplying articles for use in fraud and two counts of possessing/controlling articles for the use of fraud. The appellant had inter alia been selling secondhand cars and falsifying their service records. On 25th May 2018 he was sentenced to a total of three years’ imprisonment but that was subsequently said to have been reduced to two years. On 9th August 2018 he was issued with a letter including a Section 72 notice but Mr Jarvis confirmed that this had indeed been withdrawn.
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On 4th September 2018 the appellant completed an asylum registration questionnaire and attended a substantive asylum interview on 21st September 2018 and provided copies of medical letters from the University of Reading Medical Practice dated 16th January 2018 and 10th May 2018 in support of his claim that he suffered from posttraumatic stress disorder.
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On 19th October 2018 the Court of Appeal’s Criminal Division confirmed that his appeal against his length of sentence in his case had been allowed and that his total sentence consisted of two sentences of twelve months’ imprisonment concurrent and one sentence of six months’ imprisonment consecutive. It was accepted in the refusal letter of the Home Office that: “The Section 72 notice became irrelevant in your case as you had not received a sentence of two years’ imprisonment for a single offence”. It was also noted that on 24th January 2016 he was convicted of battery for which he received a £54 fine, had to pay £250 costs and had to pay a £50 compensation with a £30 victim surcharge.
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The basis of the appellant’s asylum and humanitarian protection claim made on 4th August 2014 was that he feared the Israeli authorities because he had previously been detained and tortured in the Negev prison in Israel after being accused of throwing a petrol bomb at an Israeli military jeep. He maintained his family had informed him he had been sentenced to 750 years’ imprisonment for this offence in his absence after he left Gaza in 1990. His family were bombed by the Israeli Army in 2009 and two of his brothers were killed and he feared it was not safe to return to Palestine and he refused to take his family back to a warzone.
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He states that he was detained at the Negev Prison for two months during which time he was tortured. His claim was that he was summoned by the General Intelligence Unit of the Israel Army working with the local Palestinian police to report at their headquarters and on arrival he was blindfolded, taken into a bus and driven to the Negev Administrative Detention Camp where he was detained. He was tortured daily, kicked on the stomach, face and body when he started to bleed. A bag was placed over his head and his pants were taken off and he was subject to further genital torture. He then went on hunger strike and was released to the Red Cross. However, he was subsequently summoned and offered inducements should he work as an informant with the Israelis. He was threatened with rape and a publication on the fact that he was raped. As a result his father advised him to leave the Gaza Strip and his escape was arranged via Egypt and he was smuggled through the Rafah Crossing to Egypt where an agent helped him to travel to Manila on 6th June 1990 on a student visa. He subsequently learnt that as a result of a confession that he had signed whilst was in Gaza the court conviction had been made against him and he was considered a fugitive from justice. He had not claimed asylum in the Philippines because the place was corrupt but remained there until he travelled to the United Kingdom to join his wife. He feared returning to Gaza as they had a database and he feared he would be identified at the Rafah Crossing, which was controlled by the Israelis. Asked about the Egyptian travel documents during his initial asylum proceedings, he stated that it was obtained for him by fixers who fixed his travel to the Philippines and he had not mentioned having signed a confession because he was not asked about it at interview. His wife then applied for a visa to travel to the United Kingdom as a student in 2008 and she subsequently came to the United Kingdom whereupon the appellant joined her in 2010. They subsequently separated and the appellant is now with his new wife.
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As noted above, the Upper Tribunal on 31st January 2014, some three years after the decision of the First-tier Tribunal dismissed the appellant’s appeal. Further submissions were then made by Lei Dat & Baig Solicitors who submitted that in the light of recent developments there were substantial grounds for believing if he was forced to return to Gaza he was at real risk of torture. It noted that the main dispute in the Upper Tribunal was over the credibility of the appellant but he maintained he had told the truth throughout and had been consistent. He maintained that he had new documentation relating to him being able to obtain identity documents relating to his Palestinian nationality and further that information from the Upper Tribunal was published online on the Tribunal’s website and he feared the information regarding his claim for asylum having been made public and that placed him at real risk of apprehension on his return...
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