Court of Appeal takes a strict stance on adducing new evidence to the Upper Tribunal

Kabir v The Secretary of State for the Home Department [2019] EWCA Civ 1162 (09 July 2019)

On the topic of fresh evidence (in the context of deception, false documents, bank statements) the Court of Appeal has held that the Upper Tribunal was right to refuse to admit fresh evidence in an immigration appeal where a Tier 1 (Entrepreneur) from Bangladesh had failed to follow the procedure in rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Underhill, McCombe and Haddon-Cave LJJ judged that the Upper Tribunal had been entitled to take into account the principle in Ladd v Marshall [1954] EWCA Civ 1 that the new evidence could, with reasonable diligence, have been made available to the First-tier Tribunal on the initial appeal. Delivering the main judgment, McCombe LJ held that the present case was not one where the new material inevitably resolved the factual issue in the favour of the appellant. Furthermore, it was not a case of clear misapprehension of established and relevant fact. McCombe LJ explained that the principal issue before the court was whether the Upper Tribunal was wrong to refuse to admit on the appeal to it certain fresh evidence which had not been before the First-tier Tribunal. The underlying issue in the case before both tiers of the tribunal related to the genuineness of certain banking documents submitted by Mr Md. Iqbal Kabir with his application for leave to remain. Mr Kabir arrived in the UK as a student in 2009 and extended his stay on that basis until the end of 2012. 

Prior to the expiry of his leave he applied for further leave remain in the UK as a Tier 1 (Entrepreneur) and used a letter and bank statement, appearing to have been issued by Brac Bank Limited concerning an account in the name of AKM Monirul Hoque, with a closing balance of 3,05,73,219.10, claimed to be greater than the £200,000 required for an applicant to be granted leave. Accompanying this was a supporting statement from the account holder that he was willing to make this sum available equally to Mr Kabir and his intending business partner, Mr Mohammed Sayed, for the purposes of their planned restaurant business. It was only after two years in February 2015 that the Home Office began inquiries regarding the genuineness of the documents. As a result the Associate Product Manager of Brac Bank responded that the certificates and statements were not issued by the bank. Thus, the decision-maker refused the application under paragraph 322(1A) of the Immigration Rules because false documents had been submitted. Mr Sayed also received a decision along these lines.

Paposhvili and precedent: SCD patient loses in Court of Appeal

Secretary of State for the Home Department v PF (Nigeria) [2019] EWCA Civ 1139 (04 July 2019)

In the case of “PF”, a Nigerian father who was suffering from sickle cell disease (“SCD”) from birth but who was a “foreign criminal”, the Court of Appeal has allowed the Home Office’s appeal against the earlier finding of the Upper Tribunal that his deportation from the UK would breach his rights under both article 3 and article 8 of the ECHR. PF was born and brought up in Nigeria. He came to the UK in 1990 aged 13 on a visit visa. However, he overstayed in the UK and in 2000 he was granted indefinite leave to remain (“ILR”). He was refused British citizenship because he failed to fully declare his criminal record. PF developed a lengthy criminal record and in 2010 he was sentenced, in light of a guilty plea, to five years and eight months’ imprisonment concurrent on two counts of criminal conspiracy to supply heroin, which instigated liability to automatic deportation under section 32 of the UK Borders Act 2007. But he argued that he fell within one of the exceptions set out in section 33, i.e. that his removal would breach his and/or his family’s rights under article 8 of the ECHR on account of his ILR, his long residence in the UK, his long-term relationship with his partner, and the fact that his children were British citizens who lived here and with whom he had a close relationship. One million people suffer from SCD in Nigeria. Their life expectancy is low. 

PF had three minor children with three different partners, all of whom were UK citizens. Allowing the government’s appeal, Hickinbottom LJ said that SCD “is a terrible disease; and one can only have sympathy for those who suffer from it,” but judged that the Upper Tribunal had misunderstood the principle of stare decisis in applying the revised test enunciated by the Grand Chamber of the ECtHR in Paposhvili v Belgium [2016] ECHR 1113 (at paragraph 183) instead of being bound by N (Uganda) v Secretary of State for the Home Department [2005] UKHL 31 where the House of Lords held that the protection of article 3 against removal in medical cases is confined to so-called “deathbed” cases where death is already imminent when the applicant is in the removing country. In N v United Kingdom (2008) 47 EHRR 39, the ECtHR endorsed the decision of the House of Lords in N but the judgment in Paposhvili produced the effect of extending the protection under article 3 in medical cases. SCD is a genetic blood disorder and it results in life-threatening medical problems and infections.

High Court orders asylum-seeker’s return to pursue appeal

PN (Uganda) v The Secretary of State for the Home Department [2019] EWHC 1616 (Admin) (24 June 2019)

In these judicial review proceedings, brought by “PN”, Lewis J held that the dismissal of Ugandan woman’s appeal against the refusal of her asylum claim had been reached by a procedurally unfair process because her case had been dealt with under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005, which did not provide her sufficient opportunity to obtain evidence to support her claim. PN’s asylum claim was based on her sexual orientation. She was a former Yarl’s Wood detainee who was removed from the UK on 12 December 2013. However, five-and-a-half years later, granting relief Lewis J made a mandatory order for the Home Office to use its best endeavours to facilitate PN’s return to the UK so that she could continue with her asylum appeal. Lewis J prefaced his judgment with the point that it was difficult to determine the relevant facts because of the lack of witness statements from decision-makers and contemporaneous documentation in the case. Owing to the unfairness caused by the shortness of the timescales provided for by the 2005 Rules, which prevented PN from adducing evidence of her lesbian relationship in Uganda with a lady called Rose, Lewis J held that the decision of the First-tier Tribunal dismissing her appeal had to be quashed. The outcome was steered by JB (Jamaica) [2013] EWCA Civ 666 where Moore-Bick LJ opined that homosexuality cannot be readily established without evidence from sources extrinsic to the claimant herself. 

The court addressed the procedural unfairness during PN’s appeal, the lawfulness of the decision to detain and remove her, and the appropriate remedy. Lewis J judged that PN’s detention from the refusal of her asylum claim until the exhaustion of her appeal rights was unlawful and entitled her to damages for unlawful detention for that period. Among other things, PN argued that the fast track procedures had prevented her from obtaining crucial expert evidence of her history of childhood sexual abuse including rape and she submitted that the said evidence was relevant to fairness. It was necessary to know the whole story (or the “human story”) when considering her claim and that because of her vulnerability, she would not have been able, or would have been less able, to present her evidence in a cogent fashion. In Detention Action [2015] EWCA 840 (“DA6”), Lord Dyson MR opined that asylum appeals are factually complex and difficult and can at times raise difficult issues of law and his Lordship was therefore not at all persuaded that the 2014 Rules, the successor rules to the 2005 Rules, made enough allowances to transfer out of the fast track process and were thus unfair.

Court of Appeal says ‘kitchen-sink’ approach to the citation of authorities is ‘wholly illegitimate’

Kaur v The Secretary of State for the Home Department [2019] EWCA Civ 1101 (1 July 2019)

Dismissing a Tier 4 (General) student’s appeal, the Court of Appeal has held that it is “wholly illegitimate” for legal representatives to cite excessive authorities because such behaviour unnecessarily burdens the tribunals where the workload is heavy and existing facilities are already overstretched. In fact this new warning comes off the heels of the earlier advice in UT (Sri Lanka) [2019] EWCA Civ 1095 (discussed here) where, apart from providing an outline of the proper approach that the Upper Tribunal should take as regards immigration judgments made in the First-tier Tribunal, the Court of Appeal also highlighted two unsatisfactory practices or attitudes which undermine the quality and efficiency of justice in immigration and asylum cases, namely the almost endless citation of cases by the parties’ representatives and the erroneous belief that every decision is capable of being appealed with the result that neither side ever regards any decision as final. In the present case, Floyd, Leggatt and Coulson LJJ strongly discouraged the “kitchen-sink” approach to citing authorities and were very critical of the applicant’s counsel because of the citation of an unreported case that was never previously referred to, i.e. Nanette Marcellana v SSHD UT IA/01888/2013. Mrs Kaur’s appeal was a second appeal arising from a decision taken by the Home Office in October 2015 refusing her leave to remain in the UK as a Tier 4 (General) student migrant under the Points-Based System.

The grounds of appeal raised concerned two narrow issues concerning the power of the Home Secretary to retain Mrs Kaur’s original passport during a period when she was seeking fresh sponsorship. Permission to bring the second appeal was granted only on two grounds only (i) that the decisions of both tiers of the tribunal were not in conformity with Nanette Marcellana, and (ii) the SSHD should have exercised her discretion to return the passport because these were “exceptional circumstances”. Against that the Home Office submitted that neither the First-tier Tribunal nor the Upper Tribunal possessed necessary jurisdiction to entertain Mrs Kaur’s challenge since her complaint was not aimed at the decision refusing her leave to remain but turned on the earlier decision to retain her original passport, such action not falling within the meaning of an “immigration decision” as defined by statute. This was a threshold point, which Coulson LJ rejected “as a matter of principle”. Mrs Kaur was refused leave to remain because her educational institution had withdrawn the necessary Confirmation of Acceptance for Studies (“CAS”). She appealed and it was undisputed that the decision-maker referred to the wrong CAS number and that the CAS had not been withdrawn.

Tier 2 (General) and ‘genuine vacancy’: Court of Appeal holds that irrational PBS refusal should be quashed

R (Suny) v The Secretary of State for the Home Department [2019] EWCA Civ 1019 (19 June 2019)

Irwin and Underhill LJJ recently held that the refusal of leave to remain under Tier 2 (General) to a Bangladeshi migrant could not be defended because such refusal was irrational. In particular, no rational basis existed for the decision-maker to conclude the role was not genuine because the applicant was inexperienced and the job description mirrored the wording of the Code of Practice for Skilled Workers Version 04/15 (“the Code”). The Court of Appeal held that such traits might be cause for some suspicion but on their own they cannot constitute a sufficient basis for an adverse conclusion. The effect of the court’s reasoning was that the decision had to be quashed. Mr Rahman Suny entered the UK as a student in December 2007. His leave as a student was extended in April 2011 and April 2013 and was curtailed. He applied on family and private life grounds but his application was refused in July 2015. On 12 August 2015, he made an application for further leave to remain as a  Tier 2 (General) migrant under the Points-Based System (“PBS”) of the Immigration Rules. The application was supported by a degree certificate in respect of Mr Suny’s Master of Arts in Marketing and Innovation from Anglia Ruskin University, a curriculum vitae and a reference from a short period of previous employment in Bangladesh. His employer was Zamir Telecom Ltd, an approved sponsor. 

Mr Suny paid a fee for a Tier 2 Priority Service Application, whereby subject to “reasons beyond our control”, the application would lead to a decision within 10 working days by the Home Office. However, the decision was sent on 6 February 2017, almost 18 months later, despite repeated prompting from his solicitors. The Tier 2 (General) application had been based on a certificate of sponsorship (“CoS”) from an approved sponsor who had offered him a job as a “sales accounts and business development manager” and this was a role which fell within a standard occupational classification (“SOC”) for the purposes of the Code. No dispute arose as to the fact that he was qualified for the role but that he lacked experience and would need to be trained by the sponsor. The decision-maker, after an 18-month delay, relied on Appendix A paragraph 77H(a) to refuse the application on the basis that the job vacancy was not genuine. The reason was that Mr Suny did not possess the relevant experience for the role, and the sponsor had also failed to explain why he was the most suitable candidate or why a resident worker could not have been trained to do the job.

Stranded Sri Lankan father wins on Article 8 in Court of Appeal

UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 (26 June 2019)

Floyd and Coulson LJJ have provided an outline of the proper approach that the Upper Tribunal should take as regards immigration judgments made in the First-tier Tribunal. The Court of Appeal also flagged up two unsatisfactory practices or attitudes which have the effect of diminishing the quality and efficiency of justice in immigration and asylum cases, namely the almost endless citation of authority by the parties’ representatives and the erroneous belief that every decision is capable of being appealed or at least reviewed with the result that neither side ever regards any decision as final. Their Lordships emphasised that the Upper Tribunal is able to set aside and remake a First-tier Tribunal decision if it makes an error of law, but not if it merely thought that it could make a better decision. The appellant, “UT”, who the court referred to as “A”, was a Sri Lankan who arrived in the UK in 2000 and claimed asylum but no decision was ever made on his asylum application. His wife, also from Sri Lanka, obtained permanent residence in 2003 and they had two children K and S born in 2001 and 2002 respectively. A was granted indefinite leave to remain in September 2008. His application for British citizenship was however refused in August 2010 because of a driving conviction. His family were granted British citizenship. His 94-year old father, who lived in Sri Lanka, became very ill in 2012 and the family planned to visit him. 

By 2012 the couple’s children were 10 and nine years old, and had spent all their lives in the UK with their parents. The family held British passports but A did not have a passport at all. He thus asked the Sri Lankan embassy for an emergency travel document (ETD) to enable him to travel to Sri Lanka. For identification purposes he produced a false birth certificate and obtained the ETD to go to Sri Lanka. He then applied for entry clearance to the UK as a returning resident. However, his application was refused because his birth certificate had been discovered to be false and paragraph 320(7A) of the Immigration Rules was engaged. His family returned to the UK but he remained stranded in Sri Lanka. In due course of time FTTJ Plumptre heard his appeal and dismissed it on paragraph 320(7A) but allowed it under article 8 of the ECHR. His cross-appeal on paragraph 320(7A) was dismissed by DUTJ Davey and by the same decision the judge held that FTTJ Plumptre’s decision on article 8 was flawed and by way of a further decision he set aside her judgment and substituted a decision that A’s article 8 appeal be dismissed.

Jamaican drug dealer beats Home Office in Court of Appeal

The Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982 (12 June 2019)

The Court of Appeal has held that FTTJ Burnett had been entitled to hold that the deportation of a Jamaican citizen (JC) who had married a British national would be unduly harsh because of its effect on his British son (JG). Underhill, King and Moylan LJJ also found that the very real risk of serious psychological harm to the child had crossed the threshold contained in section 117C(6) of the Nationality, Immigration and Asylum Act 2002 (as amended) and therefore amounted to very compelling circumstances. It was the government’s appeal against the decision of the Upper Tribunal where McCloskey J and UTJ Lindsley dismissed the Home Office’s appeal against FTTJ Burnett’s decision to allow JC’s appeal against a deportation order. Underhill LJ prefaced his decision with the point that this “case has had a troubled history” and his Lordship dismissed the appeal without calling on JC’s counsel. JC entered the UK in 2002 and married NG, a British citizen, who already had three children (who lived with them as JC’s step-children). JC and NG had no children but NG had a further child with another partner and JC had a child, a British citizen, from another relationship with CM. The child, i.e. JG, was aged five at the FTT hearing, and FTTJ Burnett allowed JC’s appeal because of the impact that his deportation would have upon his son. 

In addition to his bad criminal record JC also had quite a complex immigration history. As for his criminality, in February 2003 he was cautioned for possessing an offensive weapon in public. Thereafter, in early 2004, he was sentenced to 12 months’ imprisonment for possession of Class A drugs (heroin and cocaine) with intent to supply. In 2011 he was sentenced to five years’ imprisonment on counts of possession of heroin and cocaine with intent to supply. Hence, his immigration history was complex because after his 2004 conviction he was the subject of a deportation order. However, his appeal was successful and he was later granted discretionary leave to remain until May 2011. He applied for indefinite leave to remain later but it was refused and the appeal was dismissed and he thus had no leave to remain upon his release from custody in August 2013. Notably, the deportation order in question for present proceedings was made in June 2013 under section 32 of the UK Borders Act 2007 whereby the Home Office must make a deportation order in the case of a foreign national who has been convicted of an offence for which he was sentenced to at least 12 months’ imprisonment.