Upper Tribunal (Immigration and asylum chamber), 2023-04-25, PA/00273/2022
| Appeal Number | PA/00273/2022 |
| Hearing Date | 23 March 2023 |
| Published date | 10 May 2023 |
| Date | 25 April 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-006186
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-006186 First-tier Tribunal No: PA/00273/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 25 April 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
DEPUTY UPPER TRIBUNAL JUDGE SKINNER
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
HM
(ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Mr T. Lindsay, Senior Home Office Presenting Officer
For the Respondent: Mr R. Dunlop KC, instructed by Duncan Lewis
Heard at Field House on 23 March 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify the respondent. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
Introduction
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This is an appeal brought by the Secretary of State against the decision of First-tier Tribunal Judge Lewis (“the Judge”) promulgated on 7 October 2022 (“the Decision”), by which he allowed HM’s appeal against the Secretary of State’s refusal dated 12 January 2021 of his protection claim. Permission to appeal was granted by First-tier Tribunal Judge Parkes on 15 December 2022.
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The hearing of this appeal took place in person. We heard submissions from Mr Lindsay on behalf of the Secretary of State and from Mr Dunlop KC on behalf of HM. We are grateful to both of them for the assistance they provided in relation to the issues we have to decide.
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HM is a Nigerian national who claims to be at risk on return by reason of his claimed homosexuality. For that reason, it is appropriate to make a direction anonymising his identity in these proceedings (as the First-tier Tribunal also did), which we have done as set out above.
Factual background
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HM was born in 1964. He initially arrived in the UK on 15 December 1983. His immigration history is long and complicated, but given that the issues in this appeal involve the way in which the Judge considered earlier findings, it is necessary to set out the background in a little detail.
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HM’s leave was initially valid until 31 December 1984. His subsequent application for leave to remain as a student was refused on 12 June 1985. He made, but then withdrew, an appeal against that decision and then made a fresh application. This was granted until 30 September 1986. He appears to have then overstayed until he left the UK on 15 February 1990.
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On 17 June 1985, HM was convicted of the theft of electricity and was fined.
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On 13 May 1988, he was convicted for assaulting a police officer and for driving without a licence and fined.
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On 22 September 1988 HM was convicted of handling stolen goods and obtaining property by deception and was sentenced to nine months and three months imprisonment respectively, to run consecutively.
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On 7 October 1988 he was convicted of two counts of theft and sentenced to six months imprisonment for each, to be served concurrently.
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According to the findings of the Adjudicator (B Watkins CMG) in a decision of 22 December 1993 (addressed further below), on 15 February 1990, HM left the UK, but subsequently unlawfully re-entered.
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On 8 November 1991, HM was again convicted of handling stolen good and imprisoned for a further 28 days.
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On 10 December 1991, HM was served with notice as an illegal entrant. He appealed against that decision. On 22 December 1993, the Adjudicator rejected HM’s appeal. In doing so his account that he had lost his passport and that someone else had left the UK in his name on 15 February 1990 was rejected. In that appeal, he also claimed to have a British national wife, whom he said he had married in 1991.
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On 3 July 1992 HM left the United Kingdom for Nigeria. There is a conflict in the documents as to whether he left of his own accord, to bury his father, or he was removed. For present purposes nothing turns on this. While in Nigeria, HM’s marriage to his then wife apparently broke down.
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HM then returned to the UK on 27 March 1996, using a false passport and without any form of leave to enter or remain. He claimed asylum, relying on his claimed membership of a political group. By a decision dated 27 April 1996, that claim was refused and the Secretary of State directed his removal. He appealed to the Special Adjudicator (Mr Mark Davies), who dismissed his appeal. The Special Adjudicator “ha[d] no hesitation in finding [HM] to have been a person who has not told me the truth. His evidence did not have even the slightest hint of credibility and I am perfectly satisfied that he lied when claiming political asylum as he has lied before me today.”
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On 18 August 1997, HM was convicted for driving a motor vehicle with excess alcohol and disqualified for 12 months and fined.
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On 30 January 1998 HM was refused further leave as a student.
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Notwithstanding the dismissal of his fabricated asylum claim and the refusal of his application for further leave as a student, it does not appear that HM was then removed, as, in 1997 he was further convicted in this country for driving under the influence (for which he was disqualified).
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On 5 August 1998 HM made an application for leave to remain as the spouse of a Portuguese national, a Ms Lopez. This was refused on 16 February 2000.
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In March 2000, HM began another relationship with “JS”, a Sierra Leonean woman. Nonetheless, on 9 May 2000 HM made an application for a residence document as a family member of an EEA national, i.e. as the husband of Ms Lopez. This was refused on 9 July 2001. The decisions in respect of HM’s claimed relationship with Ms Lopez are not in the papers before us. We therefore do not know what the basis was for these refusals. It is however plain that the second of these applications was made deliberately in the knowledge that the claimed basis for the application no longer subsisted. Further, in his 2018 appeal hearing (addressed further below), HM accepted that his marriage to Ms Lopez was a marriage of convenience.
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HM then submitted further representations to the effect that HM’s removal would breach his Article 8 ECHR right to family life with JS, with whom he had, in June 2001, had a son, as well as numerous other family members who were by now in the UK. This was refused on 22 November 2001. On 2 September 2002, his appeal to the Adjudicator (Mrs Jane Reid) against this refusal was dismissed. Any interference with HM’s family life rights was found to be in accordance with the law, to pursue a legitimate aim, and to be proportionate.
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On 29 January 2003, HM was convicted of driving with excess alcohol and sentenced to a Community Rehabilitation Order of 12 months and 18 months disqualification.
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On 19 February 2003, HM made a further claim to remain in the UK on the basis of his claimed family life with his son. This was refused on 29 May 2004.
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On 15 August 2003, HM was convicted following a 4-month trial for violent disorder and sentenced to 4 years imprisonment. This related to disturbances at Yarlswood Immigration Removal Centre, where he was then detained, which resulted in the male wing being burned down. The prosecution case against HM for the offence for which he was convicted (he was acquitted of arson) was that he played a prominent part in the incident, was directly involved in smashing the window in a locked security door, pulling a security camera off the ceiling, using a metal bar to force open a telephone cash box. As the Court of Appeal noted in a judgment about the case, “when he was subsequently interviewed, [HM] denied that he was present at the scene, untruthfully asserting that he was at prayers and then had gone straight to his room.”
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On 11 April 2006, HM was served with a Notice of Decision to Deport together with a One Stop Warning under section 120 of the Nationality, Immigration and Asylum Act 2002, in which he was required to state any reasons why he should be permitted to remain in the UK. HM did not appeal the decision to deport him and a deportation order was signed on behalf of the Secretary of State on 2 May 2006.
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In 2009, HM divorced Ms Lopez.
On 18 June 2010, the Secretary of State informed HM that he was to be deported on 24 June. On 21 June 2010, his then solicitors made further representations on the basis of his family life with his son. These were rejected on 24 June 2010 without a right of appeal (presumably because they were considered not to amount to a fresh claim). However HM obtained an injunction against his removal on the same day, with the High Court Judge suggesting that the decision not to afford him an appeal right be reconsidered. Accordingly on 13 January 2011, following that reconsideration, a decision was made refusing to revoke the deportation order on human rights grounds, but affording HM a further right of appeal. HM appealed, however, during the hearing of the appeal on 27 July 2011, the Secretary of State agreed that the decision would...
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