Upper Tribunal (Immigration and asylum chamber), 2023-12-29, UI-2022-002560 & UI-2022-002565
| Appeal Number | UI-2022-002560 & UI-2022-002565 |
| Hearing Date | 16 October 2023 |
| Date | 29 December 2023 |
| Published date | 15 January 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-002560 & UI-2022-002565
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-002560 & UI-2022-002565 |
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First-tier Tribunal No: RP/00089/2016 & PA/12889/2016 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 29 December 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
DEPUTY UPPER TRIBUNAL JUDGE HARIA
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And
JS (UGANDA)
(ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Ms Mitchell of Counsel, instructed by Duncan Lewis Solicitors
For the Respondent: Mr Parvar, Senior Home Office Presenting Officer
Heard at Field House on 16 October 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is 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. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
Anonymity
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Neither representative requested that the anonymity order be set aside. We observe that this appeal concerns international protection matters, there are unchallenged findings that the appellant was forced to be a child soldier and later tortured, and that under the circumstances it is not appropriate at this stage for the appellant publicly to be identified and there is a potential that there may be an onward appeal so we conclude that the appellant’s rights presently outweigh the important principle of open justice. The order made in the First-tier Tribunal is continued and is detailed above.
Introduction
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For ease of reference we continue to refer to the appellant as such, as he was before the First-tier Tribunal.
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By a decision promulgated on 5 April 2022, First-tier Tribunal Judges Froom and O’Keeffe (“the Panel”), allowed the appellant’s appeal on Article 3, ECHR grounds. The respondent now appeals that decision with permission to appeal of Upper Tribunal Judge Pickup.
The factual background
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The appellant is a national of Uganda born on 1 May 1989. The appellant entered the United Kingdom (UK) on 26 May 2006, having been granted leave to enter for family reunion on 10 May 2006. The appellant’s mother had been granted asylum and indefinite leave to remain in the UK on 11 April 2006.
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The appellant’s full immigration history and background is set out in the First-tier Tribunal decision dated 5 April 2022 and is summarised below.
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The appellant’s mother was granted asylum and indefinite leave to remain on the basis that she was suspected of belonging to a rebel group; that two men in army uniform entered her house on the 30th of April 2004; that she was beaten and raped; that she saw her son being stabbed and beaten and that she saw her eldest son (the appellant) being tidied up and carried out of the house and put in a pickup truck. The respondent accepted that the appellant’s mother had been tortured and raped because she was suspected of belonging to a rebel group.
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The appellant claims that his mother had been enlisted into the Ugandan army where she met Elly Kigozi who became her boyfriend. Elly Kigozi was a member of a rebel group. The appellant had not known at the time that his mother had anti-government views or that the Ugandan authorities suspected she was part of the same group as Kigozi, who remained anti government in exile. The appellant only learnt this after he came to the UK. The appellant described the same incident described by his mother that occurred in 2004. He was the only member of his family taken. He heard gunshots and believed the soldiers had killed his family. The appellant recollects being detained for 6 months in Makindye army barracks where he was questioned, interrogated and tortured for being a child soldier. He was then taken to a different army camp and recruited into the Ugandan army. He eventually escaped. The appellant came to the UK on 10 May 2006 with leave to enter.
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In November 2013, the appellant was convicted and sentenced to 5 years imprisonment for attempted rape.
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On 17 April 2015, the respondent notified the appellant he was liable for deportation. On 4 September 2015, the appellant was informed of the intention to cease his refugee status. On 7 December 2015, the appellant’s refugee status was ceased.
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On 5 February 2016, a decision was made to refuse the appellant’s human rights claim, and on the same day, he became the subject of a signed deportation order (1st refusal).
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On 2 June 2016, the appellant made further protection and human rights representations.
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On 8th July 2016, the appellant appealed against the 1st refusal.
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On 12 September 2016, a decision was made to refuse the appellants further representations of 2 June 2016 ( 2nd refusal).
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The appellant appealed the 2nd refusal on 22 September 2016.
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The appellant’s appeals in respect of the 1st and 2nd refusals were linked and came before First-tier Tribunal Judge Sullivan who in a decision promulgated on 22 May 2017, dismissed the appeals. In summary, First-tier Tribunal Judge Sullivan found that:
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On arrival in the UK on 26 May 2006, the appellant was granted leave to enter as a
refugee. He was recognised as a refugee because of his mother's history, her status as a refugee and his relationship to her.
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He was not recognised as a refugee because of any claimed risk directed personally at him.
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The conditions for cessation of refugee status under paragraph 339A(v) were established due to a change in circumstances in Uganda since his mother was recognised as a refugee and since he was granted entry clearance as her family member.
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He continues to constitute a danger to the community for the purposes of s72 Nationality Immigration and Asylum Act 2002.
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The appellant would not be treated as a deserter from the Ugandan army if returned to Uganda and would not be of interest to the authorities on that account
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The appellant is not bisexual or gay.
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The appellant suffers from severe PTSD, severe depression and poses a suicide risk but his condition is not so serious as to engage Articles. The appellant does not have any significant level of contact either with his daughter or a former partner. He does not have family life with his mother and siblings such as engage article 8.
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The appellant is married to a British Citizen of Zimbabwean origin and they have a
(British Citizen) child. They have family life such as engages Article 8. It is in the child’s best interest to remain with her mother in the UK; The appellant’s removal from the UK will not have a significant impact upon her because he has never lived
with her and she does not rely upon him for day to day care.
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There are no significant obstacles to his reintegration into Uganda.
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The appellant appealed to the Upper Tribunal and on 5 July 2018, Upper Tribunal Judge Coker set aside Judge Sullivan’s decision and allowed his appeal on the basis that because his mother continued to be recognised as a refugee, the First-tier Tribunal could not reach a decision that the appellant’s status as a refugee has been curtailed or revoked and so the appellant’s refugee status could not be ceased under Article 1C(5). The appellant’s appeal succeeded on protection grounds as a refugee who has the protection of Article 32.
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The respondent appealed to the Court of Appeal. On 10 October 2019, in a reported decision, JS (Uganda) [2019] EWCA Civ 1670, the Court of Appeal allowed the respondent’s appeal holding that the Refugee Convention did not protect the appellant from expulsion. The Court of Appeal’s reasoning in summary was that, although the appellant had been recognised as a refugee on the basis of his mother’s status as a refugee, due to a change in circumstances in Uganda his mother can no longer be said to have a well founded fear of persecution in Uganda and so the respondent was entitled under Article 1C(5) (or para 339A(v) of the Immigration Rules) to treat the appellant’s refugee status as having ceased. The Court of Appeal found the Upper Tribunal had given inadequate reasons for concluding the appellant’s Article 3 claim relating to the risk of him committing suicide or self harm could not succeed and remitted the appellant’s Article 3 claim to the First-tier Tribunal for a re-consideration.
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On 11 February 2020, the appellant submitted further representations raising a new matter in relation to his third child’s health condition as part of his Article 8 appeal. The respondent in a supplementary decision dated 19 March 2020 refused the appellant’s claim. The respondent stated that this supplementary decision was to be read in conjunction with the 1st refusal.
In the First-tier Tribunal decision dated 5 April 2022, the Panel found the appellant had been abducted, tortured and forcibly recruited as a child soldier in Uganda and that these traumatic experiences were directly connected with his serious mental ill-health. The Panel considered that a return of the...
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