Upper Tribunal (Immigration and asylum chamber), 2023-09-08, UI-2023-001881
| Appeal Number | UI-2023-001881 |
| Hearing Date | 31 August 2023 |
| Date | 08 September 2023 |
| Published date | 25 September 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Case Number: UI-2023-001881 (HU/57476/2022)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No.: UI-2023-001881
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First-tier Tribunal No: HU/57476/2022
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THE IMMIGRATION ACTS
Decision & Reasons Issued:
8th September 2023
Before
DEPUTY UPPER TRIBUNAL JUDGE MONSON
Between
JAGJIT SINGH
(ANONYMITY ORDER not MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Sharma, Counsel instructed by Connaught Law Ltd
For the Respondent: Mr Walker, Senior Home Office Presenting Officer
Heard at Field House on 31 August 2023
DECISION AND REASONS
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The appellant appeals to the Upper Tribunal from the decision of First-tier Tribunal Judge Freer promulgated on 27 April 2023 (“the Decision”). By the Decision, Judge Freer dismissed the appellant’s appeal against the decision of the respondent to refuse to grant him leave to remain on private life grounds under Rules 276ADE(1)(iii) or (vi), or on alternative basis that there were exceptional and compelling circumstances which justified him being granted Article 8 relief outside the Rules.
Relevant Background
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The appellant is an Indian national, whose date of birth is 9 April 1981. He was encountered in the UK on 2 May 2011 working illegally, and he was served with an IS151A Notice as an illegal entrant/overstayer who was liable to detention and removal.
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On 6 January 2016 the appellant applied for leave to remain on family and private life grounds. The application was rejected on 17 March 2016. On 8 November 2018 the appellant was served with a RED.0001 Notice. On 10 March 2021 the appellant made a claim for destitution which was accepted. On 17 March 2021 the appellant applied for leave to remain on family and private life grounds, asserting that he had entered the United Kingdom illegally on 1 February 2002.
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In the refusal decision dated 5 October 2022, which was addressed to the appellant’s solicitors, it was noted that he claimed to have lived in the UK for 19 years and 2 months, having claimed to have entered the UK on 1 February 2002. Therefore, he had not lived continuously in the UK for at least 20 years at the date of application so as to qualify for leave to remain under Rule 276ADE(1)(iii).
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The Department had written to his representatives on two occasions, giving them the opportunity to provide further supporting evidence to confirm 20 years’ residence to date. However, he had failed to provide evidence to cover each year from when he claimed to have entered the UK.
The Hearing Before, and the Decision of, the First-tier Tribunal
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The appellant’s appeal came before Judge Freer sitting at Hatton Cross on 24 April 2023. The hearing took place on the Cloud Video Platform. Both parties were legally represented. Mr Iqbal of Counsel appeared on behalf of the appellant, and Ms Imambaccus of Counsel appeared on behalf of the respondent.
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The skeleton argument that had been filed by the appellant’s solicitors asserted that the evidence provided by way of appeal confirmed that the appellant had been resident in the UK continuously since 2002.
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It was acknowledged in the respondent’s review that the letters of support, in which the authors said that they had known the appellant during this period, were capable of lending weight to his claim, but they needed to be considered in the round with the other evidence provided. It was submitted that the appellant had failed to evidence that he had been in the UK continuously for at least 20 years, as there were significant gaps in the evidence provided.
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The Judge received oral evidence from the appellant and from four of the supporting witnesses who had given statements that were contained in the supplementary bundle. All four said in their witness statements that they had first met the appellant in the UK in 2002.
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In the Decision, the Judge referred to some of the oral evidence. In cross-examination, the appellant said that he had worked in double-glazing for many years. He only realised that he was not allowed to work here when he was stopped by immigration [in 2011]. But he had only ever worked a little.
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Jay Shergill, a friend of the appellant, said that the appellant had lived with him from April to October 2002 at his house in Smethwick. Nareesh Kumar Sharma said that he had known the appellant for 20 years and that they met fortnightly at family functions or religious assemblies. Sandeep Singh, recalled first meeting the appellant in 1999, “living in Smethwick”, and he recalled that their third meeting was in Southall. Jaswant Singh recalled meeting the appellant in an off-licence shop in 2002. He was sure that the appellant had stayed continuously in the UK, because he worked a six-day week.
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In her closing submissions on behalf of the respondent, Ms Imambaccus submitted that the witness evidence was self-serving. There was no independent evidence such as bank statements. The photographs did not show a location or a consistent presence of 21 years. The witnesses did not say where the appellant was between their sightings of him.
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In reply, Mr Iqbal acknowledged that the appellant could not show 20 years’ continuous years at the date of application. But he submitted that the appellant had entered the UK “at some time” in 2002 and had never left. As his entry was clandestine, questions of council tax bills and bank accounts were irrelevant. The Rules did not require specified documents. It was possible to count in the credible oral evidence which was the best material that had been brought in today. The witnesses all said that they were in contact with the appellant in 2002. They were clear about the geography of the meetings. They were not vague or evasive. The black and white photographs dated 2002 and 2003 were taken in Birmingham or Southall according to the appellant.
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The Judge’s findings of fact began at para [35]. He observed that the witness evidence was helpful for the appellant, but not independent. All the witnesses belonged to his particular community. At [36], the Judge said that it was remarkable that no letters or greeting cards were ever posted to the appellant from a Gurdwara, or from any friends that he met at a Gurdwara, over a 20-year period. It was often mentioned that people met up at birthdays and weddings, which generated many greetings cards and invitations. If the appellant was illiterate in his own language, this had not been mentioned.
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At [37], the Judge said that the appellant’s evidence that he had worked very little was at odds with his friend’s evidence that he worked a six-day week. This was one of a number of inconsistencies which made him strongly doubt that the appellant was a reliable witness of truth.
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At [38], the Judge observed that the photographic evidence was date-stamped, but there was no geotag to establish the country in which the photographs were taken.
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At [39], the Judge said that the evidence of attendance contained in the respective letters from the Southall and Smethwick Gurdwaras appeared contradictory about his attendance over the same time-period due to the considerable geographical distance. As the signatories to the letters were not cross-examined and the information given in them was very brief, he said that he gave very little weight to either letter.
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At paragraph [40], the Judge observed that almost nobody had referred to particulars of any specific incidents which located precisely their first meeting, in time and geography. The Judge continued:
“There are so many similar letters couched in very similar vague terms, always mentioning a particular year long ago, that it has the appearance of an organised letter-writing campaign.”
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At [41], the Judge found that it was likely that the appellant left India with a passport which might have shown stops in his journey here in the form of border-stamps, but those pages had not been produced. It seemed that he was issued with an Indian passport in 2002 which remained valid for 10 years. Therefore, there was no reason shown why he could not leave the UK in any of the years up to 2012, and then return lawfully or unlawfully, perhaps much later and not in the same year. The Judge said that it was a poor credibility point to withhold the original document for examination in the courtroom or earlier.
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At [42], he said that in his application form the appellant had declared a further Indian passport issued in London on 30 September 2016. He said that this passport was not available to the Court. If he had been able to examine it to check the travel evidence, he could have placed him in the UK in every year from 2016 to date. It could have supported or hurt his claim. The failure to disclose it hurt his credibility further.
At [43], the Judge said that the widespread unreliability of parts of the appellant’s oral evidence left him with little confidence in his self-serving attribution of two...
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