AUJ v The Secretary of State for the Home Department [2018] UKUT 200 (IAC)

[2018] UKUT 00200 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 5 April 2018
THE IMMIGRATION ACTS
Before
UPPER TRIBUNAL JUDGE GILL
Between
A U JAppellant(ANONYMITY ORDER MADE)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentANONYMITYI make an order under r.14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellant.No report of these proceedings shall directly or indirectly identify him.This direction applies to both the appellant and to the respondent and all other persons. Failure to comply with this direction could lead to contempt of court proceedings.The parties at liberty to apply to discharge this order, with reasons.Mr G Franco, of Counsel, instructed by Schneider Goldstein Immigration Law. for AppellantMr. T Melvin, Senior Home Office Presenting Officer. for RespondentIn cases in which there is no “Conclusive Grounds” decision:(i) If a person (“P”) claims that the fact of being trafficked in the past or a victim of modern slavery gives rise to a real risk of persecution in the home country and/or being re-trafficked or subjected to modern slavery in the home country and/or that it has had such an impact upon P that removal would be in breach of protected human rights, it will be for P to establish the relevant facts to the appropriate (lower) standard of proof and the judge should made findings of fact on such evidence.(ii) If P does not advance any such claim in the statutory appeal but adduces evidence of being trafficked or subjected to modern slavery in the past, it will be a question of fact in each case (the burden being on P to the lower standard of proof) whether the Secretary of State's dut y to provide reparation, renders P’s removal in breach of the protected human rights.DECISION AND REASONS

Introduction and background facts:

[1]There are two issues in this appeal, as follows:(i) (the first issue) whether Judge of the First-tier Tribunal Robinson (hereafter the “judge” unless otherwise indicated) materially erred in law in failing to make any findings as to whether the appellant had been trafficked in the United Kingdom;(ii) (the second issue) whether Judge Robinson materially erred in law in failing to decide whether the appellant met the requirements of para 276ADE(1)(vi) of the Statement of Changes in the Immigration Rules HC 395 (as amended) (the “Rules”).[2]Following a hearing before him on 3 November 2017, the judge dismissed the appellant's appeal in a determination promulgated 21 November 2017 on asylum grounds and on human rights grounds. In relation to the latter, the judge only considered Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

The judge did not consider Article 8.

Immigration history

[4]The judge referred to the appellant’s immigration history as not being in dispute, an observation that Mr Franco relied upon at the hearing before me, as will be seen.[5]At para 3 of his decision, the judge said that the appellant arrived in the United Kingdom on an unknown date in 199 8, travelling with a couple his mother used to work for. On 14 August 2011, he was arrested by the police and subsequently granted temporary admission. He submitted two applications for leave to remain in the United Kingdom, dated 12 September 2001 and 13 October 2014. On 8 December 2011 his representatives asked for the first refusal to be reconsidered. He failed to report to an Immigration Officer as required on 18 April 2013 and 18 October 2013. On 15 January 2015, his representatives lodged a pre-action protocol letter and on 13 March 2015 a response was sent by the Secretary of State stating that the original decision made on 31 December 2014 was maintained. On 7 May 2015 his representatives lodged an application for judicial review challenging the decision of 31 December 2014. The application was refused. Permission to appeal to the Court of Appeal was refused on 12 October 2015.[6]On 7 November 2016, the appellant was arrested when he was encountered driving a rickshaw in London and checks revealed that he was an absconder. He claimed asylum on 29 November 2016. The asylum claim was refused on 30 May 2017. This is the decision that was the subject of the appeal before the judge.

Basis of asylum and human rights claims

[7]The appellant’s nationality was in dispute before the judge, as was his ethnicity and sexual orientation. The basis of his asylum claim made on 29 November 2016 was that he was a Rohingya Muslim of Burmese nationality, born in Buthidaung, Arakan State, Burma (now Myanmar). He and his parents left Burma in 1990 because they were ill-treated by Buddhists. They went to Bangladesh where they lived on the Kotupalen makeshift refugee camp, before they travelled to Sylhet.[8]The appellant lived in Sylhet until 1998 when he travelled to the United Kingdom with a Bangladeshi couple. He stayed with the couple for 3 to 4 days (para 3(d) of the respondent's decision). They forced him to work for them. He did not receive any wages and was made to sleep on the floor. He left the house after a few days and went to Whitechapel where he was found crying by some Bengalis. They offered him a job in a restaurant where he worked until 2003. He began to realise he was gay in 2004.[9]The appellant had made a previous claim in 2011 when he described himself as a citizen of Bangladesh.[10]The appellant claimed to be at risk on return in Myanmar on account of his ethnicity and in Bangladesh on account of his sexual orientation.[11]It should be noted that he did not at that stage (nor at the hearing before the judge, as Mr Franco confirmed before me) claim to fear persecution in Myanmar or in Bangladesh on account of having been trafficked in the past or that he was at risk of being trafficked in Myanmar or in Bangladesh if returned to either country.[12]Insofar as concerns his Article 8 claim, the appellant said, at paras 49-51 of his witness statement, as follows:
“49. My only family in this world are my friends in the UK. I depend on them for moral and emotional support. I do not have any contact with my parents in Bangladesh and I do not even know if they are still alive or not. I am originally from Burma but as a Rohingya Muslim I fear going to Burma because Rohingya people are treated very harshly and are persecuted every day in Burma. 50. I cannot imagine my life without my friends in the UK whom I consider as my family and I certainly do not consider it safe for me to return to Burma, a country I left when I was 6 years old, and I do not have any ties with Burma. 51. My friends in the UK are supportive of me. I am living in the UK in peace and without any fear for safety of my life. I feel I have integrated into the British way of life and believe that I will not be able to continue with my life in Burma. I can confirm that I am in good health and in a fit state. I have built a very strong Private life in the UK in the last 19 years.”
[13]In oral evidence, the only evidence he gave about his private life claim was that he had supported himself in the United Kingdom with the help of friends (para 16 of the judge's decision).

Grounds of appeal to First-tier Tribunal

[14]At para 7 of the appellant's grounds of appeal, it was said that the appellant relied upon the following grounds of appeal under s.84 of the Nationality, Immigration and Asylum Act 2002 Act (the “2002 Act”):(i) that the decision was not in accordance with the law;(ii) that the decision is unlawful because it is incompatible with the appellant's rights under the ECHR; and(iii) that the appellant's removal would be in breach of the United Kingdom's obligations under the Refugee Convention or unlawful under s.6 of the Human Rights Act 1998 (the “1998 Act”).[15]The grounds of appeal did not mention Article 8 in terms.[16]Since the decision appealed against was dated 30 May 2017, ground (i) was not in fact available because of the amendments to s.84 of the 2002 Act by the Immigration Act 2014 (the "2014 Act") which came into force on 20 October 2014. The grounds have to be read with reference to the 2014 Act as a complaint that the appellant's removal would breach the United Kingdom's obligations under the Refugee Convention (the "new s.84(1)(a)") or that removal would be unlawful under s.6 of the 1998 Act (the "new s.84(1)(c)").[17]At para 7 of his decision, the judge recorded that the hearing of the appellant's appeal was first listed at Hatton Cross hearing centre on 13 July 2017 when it was adjourned to 3 November 2017 as the respondent had agreed that the appellant be referred to the Competent Authority under the National Referral Mechanism (“NRM”) for assessment as to whether he had been the victim of trafficking or modern slavery. The Competent Authority is the authority that, under domestic law, makes decisions on trafficking under the European Convention on Action Against Trafficking in Human Beings (“ECAT”). A decision by the Competent Authority is effectively a decision by the Secretary of State because the NRM operates under the auspices of the Home Office.[18]The appellant’s solicitors consented to the adjournment on his behalf. However, no further action was taken by the Home Office to make the necessary arrangements. At the hearing before the judge on 3 November 2017, this was raised again by the respondent's representative who applied for an adjournment so that the necessary referral could be made. He explained that the case worker had been on maternity leave and there had been a lack of action in pursuing the referral.[19]Counsel for the appellant said he withdrew consent to the referral as more than 3 months had passed without progress. However, the appellant wanted his appeal to be heard on the evidence then available. The case therefore proceeded before the judge. The judge said at para 7 that there was no purpose in adjourning for a referral to the NRM if consent was not forthcoming.[20]The judge heard oral evidence from the appellant with the assistance of a Bengali interpreter. He also heard evidence oral evidence from Mr J A, the appellant's friend.[21]The appellant’s oral evidence on his claim to have been trafficked was set out by

the judge at para 11 of his decision, which reads:

“11. He gave details of his situation when he arrived in the UK. He stayed with the couple who brought him here. He was told by them that he had to do housework and he cried for a long time. He managed to escape from them after 3 days. They took him out to carry their shopping and he saw many Bangladeshis living in the market. He met asked [sic]a young Bangladeshi man to help and he was taken to a restaurant where he was given a job as a kitchen porter.”
[22]The judge considered the evidence before him in relation to the appellant’s claimed nationality, ethnicity and sexual orientation in considerable detail. He did not find the appellant credible. In the course of giving his reasons, he said that he found that the appellant had not given any reasonable explanation why he waited almost 19 years after his arrival in the UK before seeking asylum and why he made no mention of his sexuality in his previous human rights claim when he was also silent about his ethnicity and nationality (para 53).[23]The judge's main findings may be summarised as follows:He did not accept that the appellant was born in Myanmar and went to Bangladesh when he was 7 years old. He found that the appellant is a national of Bangladesh. He did not accept that the appellant is a Rohingya Muslim. He did not accept that the appellant is gay or that he had lived openly in the United Kingdom as a gay man (para 59). He found that the appellant had fabricated an account in order to support a false asylum claim.[24]The judge therefore dismissed the appellant's claim on asylum grounds and on human rights grounds. As stated above, the judge’s decision in relation to human rights was limited to Article 3.[25]The skeleton argument relied upon on the appellant's behalf before the judge raised Article 8 briefly. It was submitted that the appellant's appeal “[fell] to be allowed under Article 8 within the Immigration Rules, specifically para 276ADE(1)(vi) on the basis of the very significant obstacles the appellant would face reintegrating in Bangladesh”.[26]The judge’s Record of Proceedings (“RoP”) shows that he was addressed briefly on Article 8 by the respondent's representative. The relevant part of the RoP reads:
“No corroboration of claim to have been here since 1998. Applied twice. Refuse. Speaks little English. Not fin. independent.”
[27]The judge was also addressed briefly by Mr Franco on Article 8. The relevant part of the RoP reads (the word in brackets is difficult to decipher and appears to be “asthma”):
“His evidence was he was doing some work. Not a burden on the state. Has (asthma?). No medical evidence with him. Goes to Article 8 to some extent.”

The grounds of appeal to the Upper Tribunal and the grant of permission

[28]Permission was granted by Judge of the First-tier Tribunal Doyle on limited grounds.[29]Judge Doyle refused the appellant permission to argue that, in deciding the issue of whether the appellant was a Rohingya Muslim, the judge had failed to take into account the fact that the appellant had some knowledge of the Rohingya language as (the grounds contend) he had said in evidence that he spoke the “Rohingya dialect well”.[30]I record that no application was made to the Upper Tribunal to renew the application for permission on the ground upon which permission was refused. In any event, Mr Franco accepted that there was no evidence before the judge that the appellant could speak the Rohingya dialect well, or at all, or any evidence to support Mr Franco’s assertion that the appellant had lapsed into speaking the Rohingya dialect at the hearing, an assertion that was based on what the appellant had said at the hearing. The appellant had not chosen to give evidence in the Rohingya language or to submit expert evidence from an independent linguist confirming that he speaks the Rohingya language or dialect.[31]The grant of permission was limited to the two issues described at my para 1 above.

Cited in 2 later judgments