Upper Tribunal (Immigration and asylum chamber), 2020-12-31, PA/07944/2017
| Jurisdiction | UK Non-devolved |
| Date | 31 December 2020 |
| Published date | 14 January 2021 |
| Hearing Date | 21 July 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/07944/2017 |
PA/07944/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07944/2017 (V)
THE IMMIGRATION ACTS
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Heard remotely |
Decision & Reasons Promulgated |
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On 21 July 2020 |
On 31 December 2020 |
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Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
Mohamed barry
(anonymity directioN NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
The resumed hearing of this appeal was conducted on the Skype for Business platform, with the Upper Tribunal sitting at Field House. The hearing was duly recorded by the Upper Tribunal.
Representation:
For the appellant: Mr G Lee, Counsel, instructed by Lex Sterling Solicitors
For the respondent: Mr S Whitwell, Senior Home Office Presenting Officer
REMAKING DECISION AND REASONS
INTRODUCTION
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This is the remaking component of the decision in this appeal following the conclusion of a panel (comprising The Hon. Lord Uist, sitting as a Judge of the Upper Tribunal, and myself) that the First-tier Tribunal had erred in law when dismissing the appellant’s appeal against the respondent’s refusal of his protection and human rights claims, which had in turn been made following the instigation of deportation action.
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The panel’s conclusions and reasons are set out in full in the appendix to this remaking component of the decision. Before turning to the error of law issue, it is important to summarise the relevant background to the appellant’s case.
BACKGROUND
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The appellant was born in Conakry, Guinea, on 28 December 1987. His nationality has been and remains a matter of dispute between the parties. It appears that he arrived in the United Kingdom in September 2002 at the age of 14. An asylum claim was made shortly thereafter in which it was asserted that the appellant was a citizen of Sierra Leone. Whilst that claim was refused November 2002, the appellant was granted exceptional leave to remain (what is now discretionary leave to remain) on the basis of his minority.
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In May 2005, the appellant accrued the first of 17 convictions in this country, further details of which I will set out, below. As a result of at least three of his initial convictions, the respondent instigated deportation action in late 2008. There then followed various administrative steps which prolonged matters. In 2010 the appellant made a further asylum claim, repeating his assertion that he was a citizen of Sierra Leone. The asylum process was elongated (it is asserted by the respondent that this was in part due to the appellant’s non-compliance with interview procedures). A full asylum interview was not conducted until November 2012. It was only in late January 2016 that the appellant was served with a notice of a decision to deport him. This notice included a certificate under section 72 of the Nationality, Immigration and Asylum Act 2002, as amended (“NIAA 2002”). A deportation order was signed on 24 August 2016, pursuant to section 32(5) of the UK Borders Act 2007. This was accompanied by a “stage 2” notice of decision to deport. The appellant’s protection claim was certified under section 94B NIAA 2002. In light of the judgment of the Supreme Court in Kiarie and Byndloss [2017] UKSC 42; [2017] 1 WLR 2380, the certification decision was withdrawn and the respondent issued the decision to refuse the appellant’s protection and human rights claims which is the subject of this appeal.
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Following the lodgement of the appeal with the First-tier Tribunal, a protracted period unfolded during which a number of adjournments were sought and granted. The respondent liaised with the Metropolitan Police under the auspices of Operation Nexus and obtained large amounts of evidence as to the appellant’s alleged criminal behaviour.
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One element of the delay was as a result of an adjournment granted in early January 2019 in order to give the respondent the opportunity to make any further enquiries as to the authenticity and overall reliability of letters from the Sierra Leonean and Guinean Embassies in the United Kingdom (dated 4 December 2018 and 19 February 2018, respectively). The respondent did not take advantage of this opportunity.
THE APPELLANT’S OFFENDING HISTORY
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The appellant’s criminal record is not in dispute. As mentioned above, he has accrued 17 convictions. These span the period 2005 to 2013 and account for 25 specific offences. Given the importance of the public interest it is appropriate to set out the record here:
11 May 2005: robbery whilst on bail; 12 months’ supervision order;
17 May 2007: possession of cannabis; £50 fine;
30 July 2007: possession of an offensive weapon in public, whilst on bail; 16 weeks in a Young Offenders Institution;
8 August 2007: obstructing powers of search for drugs and using disorderly behaviour threatening words; 28 days in a Young Offenders Institution and £100 fine;
25 March 2008: possession of a knife in public; four months’ imprisonment, suspended for 12 months and 12 months’ supervision requirement;
29 April 2008: possession of cocaine whilst on bail: £100 fine;
5 June 2008: failing to surrender to custody; £10 fine;
6 June 2008: possession of cannabis, possession of a bladed article in public, and failure to comply with community requirements of a suspended sentence order; 4 weeks’ imprisonment and activation of previous suspended sentence of 16 weeks;
15 July 2008: possession of bladed article in public; 8 months’ imprisonment;
16 December 2008: possession of ammunition without certificate; £100 fine;
10 March 2010: possession of cannabis whilst on bail; 1 days’ detention;
21 April 2010: possession of crack cocaine whilst on bail; community order requiring unpaid work;
11 May 2010: possession of cannabis whilst on bail; £50 fine;
6 July 2010: common assault, criminal damage, and using threatening words or behaviour; a total of 6 months’ imprisonment;
15 October 2010: robbery and possession of a knife in public; total of 3 years’ imprisonment;
1 December 2010: possession of heroin whilst on bail; 2 months’ imprisonment;
22 March 2013: possession of crack cocaine; 2 months’ imprisonment.
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The Operation Nexus evidence relating to matters in respect of which charges were not brought against the appellant was not, in the event, relied on by the respondent before the First-tier Tribunal and has played no part in my considerations.
THE DECISION OF THE FIRST-TIER TRIBUNAL
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Before the First-tier Tribunal, the appellant argued that he was neither a citizen of Sierra Leone nor Guinea: in other words, he was stateless. In respect of Article 8, the appellant did not contend that he had a family life in the United Kingdom.
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The claim of statelessness was predicated on the two Embassy letters referred to above. That emanating from the Guinean authorities, written and signed by the Consul, Mr or Ms Iromou, stated as follows:
“To whom it may concern
This letter is to confirm that after an investigation from the Ministry of Interior in [sic] and per the Home Office documents submitted to the Embassy by Mr Barry, it has been established that, Mr Mohamed Barry born 28/12/1987 is not a Guinean national.
Please do not hesitate to contact us if you require further information.”
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The letter from the Sierra Leonean Embassy stated that:
“TO WHOM IT MAY CONCERN
This is to confirm that Mohamed Barry, D.O.B 28th December 1987, who is currently residing at […] Has been interviewed by the High Commission and has proved beyond reasonable doubt that he is not a Sierra Leonean Citizen.
All assistance rendered to him will be highly appreciated.”
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On any view, the judge’s decision was conscientious and indicative of good deal of thought. Whilst one specific aspect of his findings and conclusions involved the making of an error of law, several other issues were dealt with more than adequately. The panel preserved the following conclusions (in respect of which only the fourth was the subject of any challenge in the grounds of appeal):
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the appellant was excluded from the protection of the Refugee Convention as a result of the upholding of the certificate issued under section 72 NIAA 2002. He was a danger to the community of the United Kingdom;
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the appellant was excluded from Humanitarian Protection by virtue of his offending history;
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the rejection of the Article 3 claim (which, on the facts, had the effect of rejecting the substance of the asylum claim as well);
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the absence of social and cultural integration in the United Kingdom and, as a consequence, the appellant’s inability to bring himself within Exception 1 under section 117C(4) NIAA 2002 and paragraph 399A the Immigration Rules.
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In respect of the statelessness issue, the judge stated at [32] that it was “uncontroversial that the appellant is not a citizen of Sierra Leone.” Thus, the core factual issue for determination was whether or not the appellant was a citizen of Guinea (see [33]), or whether he was indeed stateless. In this regard, the most important passage the judge’s decision is contained at [72]:
“Drawing the threads together, I find as a fact the appellant was born in Conakry and his family all had Guinean nationality. I also find the...
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