Upper Tribunal (Immigration and asylum chamber), 2021-05-05, HU/02667/2020
| Jurisdiction | UK Non-devolved |
| Date | 05 May 2021 |
| Published date | 19 May 2021 |
| Hearing Date | 22 April 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/02667/2020 |
Appeal No. HU/02667/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02667/2020 (V)
THE IMMIGRATION ACTS
|
Heard at Field House via Skype for Business |
Decision & Reasons Promulgated |
|
On 22 April 2021 |
On 05 May 2021 |
Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
BABATUNDE OKANLAWON OGUNMAKIN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr. F Khan, Counsel, instructed by Direct Access
For the Respondent: Mr. S Kotas, Senior Presenting Officer.
DECISION AND REASONS
Introduction
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This is an appeal against the decision of Judge of the First-tier Tribunal Sangha (‘the Judge’), sent to the parties on 17 November 2020, by which the appellant’s appeal against a decision of the respondent to refuse a human rights claim and to maintain a deportation order was dismissed.
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Judge of the First-tier Tribunal Adio granted the appellant permission to appeal to this Tribunal by a decision dated 30 December 2020. Though the clear intention of Judge Adio was not to grant the appellant permission to appeal on ground 1, he did not limit the grant of permission in the section of the standard form document that contains the decision and so the grant of permission to appeal is considered by this Tribunal to be on all grounds: Safi and others (permission to appeal decisions) [2018] UKUT 00388 (IAC), [2019] Imm AR 437.
Remote Hearing
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The hearing before me was a Skype for Business video conference hearing held during the Covid-19 pandemic. I was present in a hearing room at Field House. The hearing room and the building were open to the public. The hearing and its start time were listed in the cause list. I was addressed by the representatives in exactly the same way as if we were together in the hearing room. I am satisfied: that this constituted a hearing in open court; that the open justice principle has been secured; that no party has been prejudiced; and that, insofar as there has been any restriction on a right or interest, it is justified as necessary and proportionate.
Anonymity
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The Judge made an anonymity order, simply reasoning at the conclusion of his decision that ‘there are four young children involved in this appeal’.
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The requirement that justice should be administered openly and in public is a fundamental tenet of the domestic justice system. It is inextricably linked to freedom of the press and so any order as to anonymity must be necessary and reasoned: R. (Yalland) v. Secretary of State for Exiting the European Union [2017] EWHC 630 (Admin).
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The public enjoys a common law right to know about court proceedings and such right is also protected by article 10 ECHR.
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As observed by the Supreme Court In re Guardian News and Media Ltd and Others [2010] UKSC 1, [2010] 2 AC 697 where both articles 8 and 10 of the ECHR are in play, it is for the Tribunal to weigh the competing claims under each article. Since both article 8 and article 10 are qualified rights, the weight to be attached to the respective interests of the parties and family members will depend on the facts. A Judge is therefore obliged to provide reasons as to why article 10 rights are given lesser weight than those given to the appellant's article 8 rights. Such reasons may permissibly be short, with reference to Guidance Note 2013, No. 1 which is concerned with anonymity orders, but they are required.
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Rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 ('the 2008 Rules') contains a power to make an order prohibiting the publication of information relating to the proceedings or of any matter likely to lead members of the public to identify any person whom the Upper Tribunal considers should not be identified.
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Guidance Note 2013 No 1 addresses considerations to be applied to children at paras. 18 to 20. The identity of children whether they are appellants or the children of an appellant (or otherwise concerned with the proceedings), will not normally be disclosed nor will their school, the names of their teacher or any social worker or health professional with whom they are concerned, unless there are good reasons in the interests of justice to do so. Where the identity of a child is not to be revealed the name and address of a parent other than the appellant may also need to be withheld to preserve the anonymity of a child. Consequently, there is no mandatory requirement that an anonymity order be made in respect of an appellant simply because they have a child or children.
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I note the recent observation of Elisabeth Laing LJ in Secretary of State for the Home Department v. Starkey [2021] EWCA Civ 421, at [97]-[98], made in the context of deportation proceedings consequent to sexual offences, that defendants in criminal proceedings are usually not anonymised. Both the First-tier Tribunal and this Tribunal are to be mindful of such fact. The appellant in this matter has already been subject to the open justice principle in respect of his criminal convictions, which are a matter of public record and so considered to be known by the local community.
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I am aware that the appellant’s conviction was reported in the media. I am also mindful that the media may well be interested in reporting these proceedings consequent to previous coverage of the appellant’s conviction. Such reporting would, on its face, be in the public interest. The appellant and another man set up an immigration advisory firm in Essex, called East London Legal Centre, offering advice on immigration matters and submitting in the region of 400 visa applications containing false documents to the respondent. The second defendant, Mr. Ifelola Owoseni, falsely claimed to be an immigration solicitor and neither man was registered by the Office of the Immigration Services Commissioner. In the circumstances, the public can properly be considered to have an interest in knowing whether the appellant is, or is not, to be deported.
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I observe the Editors' Code of Practice which provides that editors of newspapers ‘must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child's private life’. The Tribunal can properly expect editors to abide by the Code of Practice.
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Upon considering the papers filed in this matter, I am satisfied that there is no requirement that the appellant’s wife and children be named, nor is there any requirement to identify where the family live nor for details to be given as to the schools the children attend.
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I am satisfied that article 8 rights in this matter do not outweigh relevant article 10 rights so as to diminish the right of the public to know about the appellant and these proceedings. Consequently, I set aside the anonymity order made by the Judge.
Background
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The appellant is a national of Nigeria and is presently aged 51.
Family Life
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The appellant and his present partner were in a relationship with each other in Nigeria and the couple’s first child was born in 2004.
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The appellant married a French national in Cote d’Ivoire on 6 May 2006.
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The appellant’s partner married an EEA national in 2006.
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The appellant was granted entry clearance as a visitor and entered the United Kingdom on 11 May 2006. He overstayed. In September 2008 he successfully applied for an EEA Residence Card on the basis of his marriage to his wife. The Residence Card was issued on 23 September 2009 and valid for five years until 23 September 2014.
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The appellant’s partner applied for an EEA Residence Card in 2009, 2010 and 2011 on the basis of her marriage to an EEA national.
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In 2007, a second child was born to the couple in the United Kingdom, 13 months after the appellant arrived in this country and 17 months after he married his French national wife. The child’s birth certificate confirms that the couple were living together at the time of the second child’s birth.
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The second child was born before the appellant’s application for a residence card in September 2008.
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Their third child was born in this country in 2009. The address on the third child’s birth certificate confirms that the couple moved property together at least once following the birth of their second child.
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The appellant’s partner was residing with the appellant and their children when she applied for an EEA Residence Card.
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The appellant divorced his French national wife on 6 November 2012.
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The couple are also recorded as residing together on the birth certificate of their fourth child, issued in 2013.
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The appellant’s partner and youngest child are Nigerian nationals, enjoying leave to remain until 2021. The three eldest children are British.
Index Offence
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