Upper Tribunal (Immigration and asylum chamber), 2021-05-20, DA/01472/2013
| Jurisdiction | UK Non-devolved |
| Date | 20 May 2021 |
| Published date | 04 June 2021 |
| Hearing Date | 15 March 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/01472/2013 |
Appeal Number: DA/01472/2013
IAC-AH-SC/SAr-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01472/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15 March 2021 |
On 20 May 2021 |
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Before
UPPER TRIBUNAL JUDGE RINTOUL
Between
MR Paulo Antonio
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Goodman, instructed by Duncan Lewis & Co, Solicitors
For the Respondent: Ms J Anderson, instructed by Government Legal Department
DECISION AND REASONS
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The appellant, whose nationality is in dispute, appeals against a decision of the respondent made on 9 July 2013 that he is a person to whom section 32(5) of the UK Borders Act 2007 applies. That was on the basis that he had been sentenced to 9 years’ imprisonment for robbery, attempted robbery and possession of an imitation firearm with intent.
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This appeal was brought before the amendments to section 82 and section 84 of the Nationality, Immigration and Asylum Act 2002 (enacted by the Immigration Act 2014) came into force. By operation of Articles 9 and 11 of the Immigration Act 2014 (Commencement No 3, Transitional and Saving Provisions) Order 2014, sections 82 and 84 of the 2002 Act apply in this appeal as they were in force prior to the changes introduced by the 2014 Act.
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The appeal against the decision made was heard by Designated First-tier Tribunal Judge McCarthy who dismissed it in a determination promulgated on 11 October 2018. That decision was set aside for the reasons set out in my decision promulgated on 4 October 2019, a copy of which is annexed to this decision.
History of this appeal
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This is a “limbo” case, that being a convenient shorthand for describing the position of a person whom the respondent wishes to deport or remove, but where there is a limited prospect of ever effecting his deportation or removal.
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The core of the dispute in this case is the extent to which the appellant has been co-operative to permit the obtaining of documentation and whether the alleged lack of co-operation has contributed to the impossibility of achieving deportation.
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The appellant’s case is that he was born in Portugal in 1977, his father being a Portuguese national and an officer in the Portuguese Forces; his mother was a Jamaican citizen. He left Portugal at the age of 3, the family going to live in the United States where his father was a military attaché attached to the Portuguese Embassy in Washington DC. He arrived in the United Kingdom in 1993 and has remained here since.
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On 21 July 2005 the appellant was convicted of robbery, attempted robbery and two offences of possession of an imitation firearm and sentenced to nine years’ imprisonment, offences committed in 2003. On 11 September 2008 the respondent issued a notice of decision to make a deportation order against him against which he did not appeal and, on 24 October 2008, the respondent issued a deportation order made under Section 5(1) of the Immigration Act 1971 bearing in mind the criteria of the Immigration (European Economic Area) Regulations 2006 which were then in force.
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On 21 September 2010 the appellant was due to be released on licence but was instead detained by direction of the Secretary of State and on 28 September 2010 she sought to deport him to Portugal. He was, however, returned the same day as there was no evidence presented to support his nationality. He was then detained for a further 38 months.
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During that period of detention, the deportation order was revoked on 18 October 2010; the Secretary of State issued a further deportation order on the basis that the appellant is a foreign criminal as defined in section 32 (1) of the UK Borders Act 2007. The decision was served on 11 July 2013 and an apply duly lodged within time.
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On 16 July 2013 the appellant issued proceedings for judicial review seeking: a quashing order against the deportation order served on 11 July 2013; release from detention; and, the award of damages for false imprisonment.
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A substantive judicial review application was heard on 28 and 29 October 2014, the High Court quashing the second deportation order and declaring that the appellant had been falsely imprisoned between 18 October 2010 and 30 November 2013. There then followed further hearings to consider the quantum of damages.
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The Secretary of State appealed the High Court’s decision to the Court of Appeal which, in the decision reported as R (on the application of Paulo Antonio) v SSHD [2017] EWCA Civ 48, quashed the decision of the High Court in respect of the second deportation order and remitted for retrial the issue of the lawfulness of the appellant’s detention from 20 January to 30 November 2013. The retrial did not proceed as the action was settled by consent. The Secretary of State’s position is that this was for pragmatic reasons.
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The proceedings in the First-tier Tribunal were stayed pending the outcome of the litigation in the High Court and subsequently the Court of Appeal as the legality of the decision giving rise to the appeal was under challenge in those proceedings.
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The appellant’s case is that there is no prospect, or no realistic prospect, that he can leave the United Kingdom or that his deportation can be enforced in a reasonable period of time to Jamaica, to Portugal or elsewhere. His case is that he has made a full and frank disclosure of all the relevant material about his antecedents in Jamaica, Portugal and in the United States; and, has complied with the Home Office’s requests for information. He accepts that there is no avenue left open to him to establish his entitlement to Portuguese nationality and that it has been established, on the basis of detailed investigations by the respondent and enquiries made by them, that the Jamaican authorities would not accept he is a national.
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The Secretary of State’s case is that the appellant has not in reality been co-operative and has withheld information about his origins and history and thus defeating attempts to establish his nationality. In short, the information he has given cannot be verified, and she submits it is false which is why the Jamaican authorities (and Portuguese authorities) have been unable to document him. In doing so she points to discrepancies and inconsistencies in the accounts the appellant has given over time.
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It is, however, of note that Designated Judge McCarthy records in his decision that:
“[50] In case it is not clear from elsewhere, I record that Mr Swaby (the Home Office Presenting Officer) confirmed the respondent accepts the appellant is neither Portuguese nor Jamaican, and cannot be deported to either country. To that extent, the respondent’s position has moved on slightly from when the Court of Appeal considered matters.”
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It is also of note that since that decision, on 30 April 2019, the respondent disclosed as part of the High Court proceedings a draft release referral document in which, amongst other matters, it was stated that the appellant may have been compliant and had been forthcoming with information.
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The Secretary of State, although not seeking to withdraw her concession, maintains her position that the appellant has not been candid and that any compliance has been apparent rather than real.
The Hearing on 15 March 2021
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It is unfortunate that despite my error of law decision being promulgated in 2019, it was not possible to list this appeal before 15 March 2021. A hearing listed on 31 January 2020 had to be abandoned and it was not possible to list this for hearing owing to the pandemic. I am, however, indebted to both sets of solicitors in providing comprehensive bundles and to both Counsel for production of skeleton arguments.
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It is common ground that the appeal was to be heard de novo and that none of the findings of fact reached by Judge McCarthy were to be maintained. I heard evidence from the appellant and Ms Okoh. I also heard evidence via Skype from Ms B Haque and Ms G Carpenter, Home Office officials and from Mr Hilaire Sobers, an expert witness relied on by the appellant. In addition, I had before me the following:
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Consolidated bundle paginated from A1 to G77.
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Supplementary bundle.
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Further supplementary bundle.
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Authorities bundle.
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Skeleton argument from Ms Anderson.
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Skeleton argument from Mr Goodman.
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The appellant adopted his witness statement adding that he had not heard anything from the Portuguese Consulate since the conversation which he...
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