Upper Tribunal (Immigration and asylum chamber), 2021-03-01, PA/12516/2017
| Jurisdiction | UK Non-devolved |
| Date | 01 March 2021 |
| Published date | 17 March 2021 |
| Hearing Date | 15 February 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/12516/2017 |
Appeal Number: PA/12516/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12516/2017
THE IMMIGRATION ACTS
|
Heard at Manchester (via Skype) |
Decision & Reasons Promulgated |
|
On 15 February 2021 |
On 01 March 2021 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
YKA
(Anonymity direction made made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Parkin instructed by Barnes Harrild Dyer Solicitors.
For the Respondent: Mr A McVeety Senior Home Office Presenting Officer.
DECISION AND REASONS
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The appellant, who is recorded as having been born on 1 January 2001, claimed to be a national of Syria. A judge of the First-tier Tribunal (‘the Judge’) concluded at [28] of the decision promulgated on 24 September 2019:
28. Applying the lower standard of proof, I take into account the Appellant’s age when he first claimed asylum and as at the date of the hearing. Considering the points made above namely being unable to infer answers are correct in the SAI, the Appellant’s evidence being vague and inconsistent, not providing evidence which was easily obtainable and the language analysis report, in the round I do not accept the Appellant is Syrian.
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The appellant applied for permission to appeal which was initially refused by another judge of the First-tier Tribunal but granted on a renewed application by a judge of the Upper Tribunal on 13 July 2020, the operative part of the grant being in the following terms:
The grounds of appeal are that the First-tier Tribunal materially erred in law in failing to consider whether the Appellant is admissible to Egypt and/or removal there; the Appellant claiming to be Syrian and without any documentation in support of him being Egyptian and without the Respondent being able to obtain any travel document on his behalf either.
Whilst it may not be material to all grounds of appeal before the First-tier Tribunal, it is arguable that the First-tier Tribunal simply failed to engage or make findings on an issue in the appeal as to whether regardless of the Appellant’s nationality, he would be removable to Egypt. It will be for the parties to address the extent of such submission to the First-tier Tribunal as the record of proceedings shows this only as a short point and not developed in the way it had been in the grounds of appeal. Materiality may well be in issue as well given the factual findings by the First-tier Tribunal about the Appellant’s attendance at the embassy.
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Before the Tribunal Mr Parkin accepted the grounds of appeal were a very narrow and technical point but asserted the Judge had erred in law in relation to the same.
Error of law
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The observation in the grant of permission relating to the very limited extent to which this point was raised before the First-tier Tribunal, as compared to the grounds of appeal, is factually correct, although there is limited reference to show this was a matter relied upon by the appellant.
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The appellant’s claim is recorded by the Judge at [22] where it is written:
22. The Appellant’s oral evidence was limited with regards to his nationality. He has said he tried to go to the Egyptian embassy to prove he is not Egyptian. I do not have any evidence of an application or even a witness statement of the adult who should have accompanied him to submit this application, given his young age. In his witness statement dated 02 May 2019 he again asserts he is Syrian and claims his lack of knowledge is due to receiving no education and being kept at home by his mother. However as explained in paragraph 20, he was but I simply do not know if they are correct or not. Therefore, I find his evidence on this is inconsistent.
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Contrary to the submission made by Mr Parkin, the Judge made a finding in relation to the appellant’s claim he had visited the Egyptian embassy; namely that insufficient weight could be placed upon the claim the appellant had made. The specific finding by the judge “I do not have any evidence of an application” is clearly a finding within the range of those available to the Judge that it was not made out that the appellant’s claim was true. It is also an important aspect of this case that the appellant’s claim, which was based upon a real risk if he was returned to Syria as a Syrian national, was shown to be totally without merit, leading to a finding it was more likely, even to the lower standard applicable in an asylum appeal, that the appellant is Egyptian. The whole basis on which he had therefore claimed international protection had been found to be a lie. Although Mr Parkin submitted that his specific instructions are that his client does not agree with this finding, it has not been appealed.
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Mr Parkin places reliance upon an argument that the appellant “probably falls within a category of individuals described as being impossible to remove for legal or practical reasons”.
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Mr Parkin in his grounds of 18 June 2020 relies upon two authorities being Neshanthan (cancellation or revocation of ILR) [2017] UKUT 00077 (IAC and Sapkota [2011] EWCA Civ 1320.
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As noted by the headnote of Upper Tribunal in Patel (consideration of Sapkota – unfairness) [2011] UKUT 00484 (IAC), the decision in Sapkota [2011] EWCA Civ 1320 is based on a public law duty to exercise s.47 powers where fairness requires it, having regard to the factors considered in Mirza [2011] EWCA Civ 159 and TE (Eritrea) [2009] EWCA Civ 174. It does not amount to an inflexible rule that the power must always be exercised.
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Before the Upper Tribunal and subsequent appeal to the Court of Appeal a new point had been taken by the appellants, namely the Secretary of State’s failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. That argument, which failed before the Upper Tribunal and the Court of Appeal became the principal issue before the Supreme Court in Patel [2013] UKSC 72. At [27] of that judgment it is written “……The powers to issue removal directions under section 10 of the 1999 Act and section 47 of the 2006 Act (like the power to issue notices under section 120 of the 2002 Act) are just that – powers. Their statutory purpose is as part of the armoury available to the Secretary of State for the enforcement of immigration control. Any extra protection provided to an appellant is incidental. Neither section can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision. As Burnton LJ said in the Court of Appeal [2013] 1 WLR 63, para 73: “This language is clearly and unequivocally the language of discretion, not duty, and it is simply not open to the court to interpret it as imposing a duty. For the court to do so is to amend the legislation, not to interpret it.”.
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There was no duty upon the Secretary of State to issue a removal direction and, indeed, none have been issued in this appeal. Indeed, the guidance to caseworkers’ states:
You can only set removal directions (RDs) if the following criteria are met:
• no outstanding casework barriers
• detainee is fit to fly
• authority to conduct a family separation is obtained, where necessary - refer to
the guidance on family separations for further information
• appropriate level of authorisation for removal is obtained
• valid travel document (or valid travel document agreement) held - as an
exception if the detainee is to be removed on a charter flight, RDs may be set
while the emergency travel document (ETD) is still pending agreement.
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The respondent was therefore unable to set removal directions or to undertake the necessary checks and procedures to facilitate removal whilst the appeal process was ongoing. The criticism raised by Mr Parkin of the failure of the Judge to consider that the Secretary of State has had no more success in obtaining documentation than the appellant or showing that the Egyptian authorities are likely to accept the appellant is of Egyptian nationality misses the point that at that stage of the proceedings there was no obligation upon the Secretary of State to do so; any difficulties in the return process not being relevant to the protection appeal in which no evidence of a real risk if returned to Egypt had been made out.
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Mr Parkin’s submission...
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