Upper Tribunal (Immigration and asylum chamber), 2023-08-14, PA/01112/2020
| Appeal Number | PA/01112/2020 |
| Hearing Date | 16 January 2023 |
| Date | 14 August 2023 |
| Published date | 29 August 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA/01112/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01112/2020
THE IMMIGRATION ACTS
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Decision & Reasons Promulgated On the 14 August 2023 |
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Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
CE (CAMEROON)
(ANONYMITY DIRECTION MADE)
Appellant
-and-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Heard at Field House on 16 January 2023
Representation:
For the Appellant: Ms E Gunn, Counsel, instructed by Duncan Lewis & Co
For the Respondent: Ms A Ahmed, Senior Presenting Officer
A daughter of the appellant enjoys lifetime anonymity in relation to criminal proceedings: sections 1 and 2(1)(aa) of the Sexual Offences (Amendment) Act 1992.
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, his former wife and their children are granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant, his former wife and their children without that individual’s express consent. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
Introduction
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The appellant is a national of Cameroon who was sentenced at Portsmouth Crown Court on 31 January 2011 to a total of eighteen (18) years’ imprisonment, having been found guilty by a jury in respect of four counts of raping a child aged under 13 and two counts of assault female child under 13 – penetration of vagina/anus with part of body/object.
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The victim was his daughter, aged between six and nine at relevant times. The offences took place in the family home between April 2005 and April 2009.
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The appellant continues to deny his guilt, stating that his former wife brainwashed their daughter and coached her as to the allegations made.
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The respondent seeks to deport the appellant, a foreign national criminal, considering him to have committed a particularly serious crime and to constitute a danger to the community.
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The appellant resists deportation, asserting that his return to Cameroon would breach rights protected by article 3 of the European Convention on Human Rights, incorporated domestically by the Human Rights Act 1998.
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For the reasons detailed below we dismiss the appellant’s appeal.
Previous judicial consideration
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By a decision dated 27 May 2021, the First-tier Tribunal (Judge of the First-tier Tribunal Smeaton) upheld a ‘section 72 certificate’ issued by the respondent, the appellant having been convicted by a final judgment of a particularly serious crime and found to be a danger to the community in this country: section 72 of the Nationality, Immigration and Asylum Act 2002, at [61]-[63].
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The First-tier Tribunal concluded that the appellant would face treatment contrary to articles 2 and 3 ECHR if returned to the anglophone Northwest/Southwest (‘NWSW’) regions of Cameroon consequent to his personal characteristics, at [108]-[121].
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By a decision dated 28 March 2022 this panel of the Upper Tribunal preserved the findings detailed at [7] and [8] above. The rest of the First-tier Tribunal decision was set aside, with the resumed hearing to be heard by this Tribunal. The appellant was directed to file any further documents he wished to rely upon no later than 21 days before the resumed hearing.
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A panel hearing was listed on 4 October 2022.
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At 17.31 on 3 October 2022, after the close of business, Duncan Lewis Solicitors, the appellant’s legal representatives, filed with the Upper Tribunal an addendum report written by Dr Charlotte Walker-Said, dated the same day. No prior indication had been provided by Duncan Lewis Solicitors as to there being an expectation of delay in securing expert evidence, nor was any request made for an adjournment prior to the hearing. Ms Gunn declared herself ready to proceed on the morning of the hearing, in circumstances where neither the respondent, the respondent’s representative nor the panel had enjoyed the opportunity to consider the report. The panel members did not receive the report until approximately 1pm on the day of the hearing.
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We consider the approach adopted by the legal representatives was unfortunate, and not one sufficiently focused upon their duties to help the Upper Tribunal to further the overriding objective, and to cooperate with the Upper Tribunal generally: rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
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In the interests of fairness, the hearing was adjourned and relisted on 16 January 2022.
Issues before the Upper Tribunal
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The parties agreed that the following issues were before the panel:
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Article 3 ECHR, in respect of mental health: does the appellant face a breach of protected rights on return to Cameroon on account of his mental health?
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Article 3 ECHR, in respect of internal relocation: will the appellant face a breach of protected rights upon return to Cameroon?
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Amongst various documents, the appellant relies upon reports from:
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Dr Nuwan Galappathie, Consultant Forensic Psychiatrist at the Huntercombe Centre, Birmingham.
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Dr Charlotte Walker-Said, Assistant Professor of History, Department of Africana Studies, John Jay College of Criminal Justice, City University of New York.
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Additionally, the appellant filed and served medical records covering the period from June 2017 to May 2022. They cover his time in prison, his subsequent detention under the Immigration Act 1971 (where he remained in the prison estate) and recent engagement with his GP surgery. These medical documents are referred below as ‘GP records’.
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We have been provided with the appellant’s OASys, dated 14 May 2020. It was agreed by the representatives that the Offender Assessment System tool records various information provided by the appellant to both HM Prison and HM Probation Services over time.
Anonymity Order
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By our decision of 28 March 2022, we issued an anonymity order. We observed that there was a clear public interest in the identification of the appellant who has been convicted of very serious sexual offences. However, we noted section 1 of the Sexual Offences (Amendment) Act 1992 which prohibits the reporting of any matter which may lead to the identification of a complainant in respect of certain sexual offences, including rape: section 2(1)(aa) of the 1992 Act. We concluded that if the appellant were not subject to an anonymity order, his unusual last name would quickly lead to the identification of his daughter and such identification would result in the loss of protection provided to her by the 1992 Act.
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In the circumstances, we are satisfied that the daughter’s protected rights under article 8 ECHR outweigh the public interest protected by article 10 ECHR.
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The anonymity order is confirmed above.
Vulnerable Witness Application
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Ms Gunn requested that the panel treat the appellant as a vulnerable witness on account of his mental health. Reliance was placed upon the medical opinion of Dr Galappathie detailed in a psychiatric report dated 7 December 2020 and addendum reports dated 12 February 2021 and 22 July 2022.
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The appellant was offered a break every 30 minutes during his evidence and permitted to take a break when a request was made.
Background
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The appellant is a national of Cameroon and is presently aged 50. He hails from Ekona, situated in the South-West Region of Cameroon.
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He states that his younger half-sister resides in Hampshire, and his two brothers reside in the United States of America.
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An entry in his GP reports dated 9 May 2017 records the appellant informing prison healthcare as to his mother having twelve (12) children.
Entry into the United Kingdom
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The appellant secured entry clearance as a student in 1999. He studied nursing at an English university.
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He secured indefinite leave to remain in 2009 and last returned to Cameroon in that year.
Family in the United Kingdom
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The three living children of the appellant and his former wife are adults and British citizens. A fourth child died in a choking accident when aged six.
Family in Cameroon
The appellant acknowledges having had several extra-marital...
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