United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/01241/2015

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 13 th November 2017	On 16 th November 2017

 

 

Before

 

UPPER TRIBUNAL JUDGE COKER

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

And

 

AS

( ANONYMITY ORDER MADE)

Respondent

 

 

Representation :

 

For the Appellant: Mr P Deller, Senior Home Office Presenting Officer

For the Respondent: Mr D Akin-Samuels of Church Street Solicitors

 

 

DETERMINATION AND REASONS

 

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant in this determination identified as AS. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings

 

 

1.          AS was notified on 31 ^st July 2015 that the SSHD had decided to make a deportation order against him under s5(1) Immigration Act 1971 because his presence in the UK was not conducive to the public good. AS made submissions which were treated by the SSHD as a claim for international protection/human rights claim. That claim was refused by the SSHD in a decision dated 8 September 2015 (re-served on 26 ^th October 2015). The appellant appealed. His appeal was heard by First-tier Tribunal Judge Metzer and, in a decision promulgated on 7 September 2017, allowed on asylum and Article 3 human rights grounds.

 

2.          The SSHD sought and was granted permission to appeal on the following grounds:

 

....FTTJ Metzer has made irrational findings that [AS] is entitled to international protection on asylum grounds and benefits from protection under Article 3.

There is no evidence submitted by [AS] that he has ever been subjected to any threat of serious harm by the Rat Bat gang, additionally there is no evidence that [AS's] father was killed by the same gang. The only possible evidence is the alleged posters from four to five years ago. It is submitted that if such posters existed that evidence of their existence could have been provided by [AS] and is reasonable to expect that any such evidence to be put before the tribunal[sic].

In any event these posters if existed only referred to [AS's] Grandmother and Uncle and were not directed at [AS].

In a similar way if as the FTTJ accepts that [his] cousin was killed by the Rat Bat gang paragraph 16 of the determination despite [AS] confirming at paragraph 8 of the determination that he could not say directly his cousin's death was a result of Rat Bat gang. It is submitted that evidence of the cousin's death would be available from the Jamaican authorities and/or newspaper articles and it is reasonable to expect the appellant to provide this evidence to the tribunal.

The FTTJ refers to this an exceptional case in which [AS's] mother was granted humanitarian protection paragraph 24 of the determination, it is known that [AS's] mother appeal was heard on 21/02/05 at Taylor House and subsequently allowed on 04/03/2005 (no AIT references) but is recorded as allowed on Human Rights Grounds on the Home Office computer records. If [AS] is reliant on his mother's allowed appeal then a copy should have been provided to the tribunal and it was reasonable to expect this to be produced, there is no indication from the determination that it was provided.

It is respectfully submitted that the FTTJ has failed to give clear reasons as to why [he] is at risk from the Rat Bag gang, [he] has confirmed in cross examination [that he] has never been subject to any direct threat of harm from this gang (see paragraph 6 of the determination). This is despite being resident in the United Kingdom since November 2001 aged 6, and aged twenty two at the hearing, it is therefore submitted that there is no evidence for the FTTJ to base his conclusions that [he] is in need of international protection.

 

 

3.          Mr Deller did not abandon his grounds of appeal but stated that he did not wish to amplify the grounds and relied upon the grounds as set out.

 

4.          Judge Metzer set out in detail the serious crimes of which AS was convicted. He set out in detail the evidence before him, both documentary and oral including the attempted kidnap of his mother when he was about five years old, that his grandmother reported details to the Metropolitan police, that he had lived outside London with his grandmother in a safe house until 2008, that his grandmother had been threatened since the killing of his father. His mother's evidence included that a prisoner from Belmarsh had been deported to Jamaica and that she had heard from her sister that information had got back to Jamaica that AS was due to be deported. Judge Metzer refers to AS' mother being granted humanitarian protection in 2005. Humanitarian protection includes protection under the Human Rights Act. That the Home office chose to record that on their system as an appeal allowed on human rights grounds is not contradictory; it does not appear that this was said to the judge in any event. The SSHD was aware and refers to AS' immigration status in the reasons for refusal letter and had it been disputed that his mother had been granted protection this was evidence which the SSHD could have relied upon. A decision dating back to 2005 which had not been challenged by the SSHD cannot justifiably be disputed over 10 years later.

 

5.          The judge considered the evidence as a whole not merely piece by piece. He made findings that were open to him on that evidence. His acceptance of the evidence that the gang continued to have an interest in AS father's family were findings that were open to him. The judge gave clear reasons for his findings; he considered the evidence as a whole including AS' evidence that he could not directly confirm that his cousin's death was by the gang. But the findings were open to him; they are neither perverse nor irrational.

 

6.          The grounds do not seek to challenge the findings as to sufficiency of protection or internal relocation.

 

7.          I am satisfied that there is no error of law such that the decision of the First-tier Tribunal is set aside.

 

Conclusions:

 

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

 

I do not set aside the decision; the First-tier Tribunal decision stands.

Anonymity

 

The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

 

In the light of the potential harm that may be caused to AS and/or his family I make an anonymity order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

Date 14 ^th November 2017

 

 

Upper Tribunal Judge Coker