THE IMMIGRATION ACTS. Heard at Field House Decision & Reasons Promulgated On 24 February 2015 On 2 March Before

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1 IAC-AH-DP-V1 Upper Tribunal (Immigration and Asylum Chamber) THE IMMIGRATION ACTS Heard at Field House Decision & Reasons Promulgated On 24 February 2015 On 2 March 2015 Before DEPUTY UPPER TRIBUNAL JUDGE MONSON Between [A S] (ANONYMITY DIRECTION NOT MADE) and Appellant THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: In person For the Respondent: Mr L Tarlow, Specialist Appeals Team DECISION AND REASONS 1. The appellant appeals to the Upper Tribunal from the decision of the Firsttier Tribunal dismissing her appeal against the decision made by the Secretary of State while the appellant was a fast track system detainee to refuse to recognise her as a refugee, as otherwise requiring international or human rights protection. The First-tier Tribunal did not make an anonymity direction, and I do not consider there should be any derogation from the open justice principle in these proceedings before the Upper Tribunal. CROWN COPYRIGHT 2015

2 2. The appellant is a national of the Philippines, whose date of birth is [ ] She entered the United Kingdom with her mother on 14 April 2005 with valid entry clearance as a visitor. Her leave to enter as a visitor expired on 21 September In an interview which took place on 21 March 2005, the appellant s mother represented to the Entry Clearance Officer that the intention to stay in the United Kingdom for two weeks; and that her husband was working in Singapore. In fact, her husband (the appellant s father) was in the UK. He had entered the UK as a visitor on 13 March 2004, and had overstayed. As subsequently found by First-tier Tribunal Judge Fox in a decision of 18 June 2014, the appellant s parents conspired to deceive the UK authorities with regard to their true intentions, which was to settle illegally in the UK in order to gain access to socio-economic advantages. The application for ILR in June The appellant s father sought to regularise his status, and that of his dependants, through an application for leave to remain made on 7 June He included in his application the appellant and a younger daughter, to whom his wife had given birth in the United Kingdom on 6 March The application was made by legal representatives instructed by the appellant s father. The application was refused without a right of appeal on 20 June On 7 October 2013 the appellant was served with a Form IS151A informing her of her immigration status and her liability to be detained or removed from the UK. The appellant joined with her father in lodging an application for judicial review, arguing inter alia that they should be given an incountry right of appeal. 5. On 16 December 2013 the Home Office wrote to the appellant s then solicitors, acknowledging their letter dated 18 November 2013 in which they had asked that the appellant be granted an in-country right of appeal. She had spent the vast majority of her life, including her formative years, in the Philippines and it was expected that she would have family members or cultural ties there. Both her parents and her siblings were also liable for removal from the UK and could return to the Philippines with her. Careful consideration had been given as to whether the appellant should qualify for discretionary leave in the UK, but the appellant had not raised any issues which gave rise to such a grant of leave. The appellant was issued with a One-Stop Warning, whereby she was required to make a formal statement about any reasons why she thought she would be allowed to stay in this country, including any grounds why she should not be removed or required to leave. The appeal against the decision made on 16 December The appeals of the appellant and her father came before Judge Fox sitting at Richmond in the First-tier Tribunal on 18 June Their appeal was 2

3 determined on the papers, because they had not requested an oral hearing. In his subsequent decision, Judge Fox found there was no reliable evidence to demonstrate it was unreasonable to expect the appellant, and her father, mother and sibling to return to the Philippines. He further found that the decision did not interfere with family life as they would be expected to return to the Philippines as one family unit. If they chose the path of continued resistance, any decision to separate the family unit would be the result of a private decision outside the respondent s control. The appellant and her father were not entitled to make a unilateral decision to settle in the UK and demand that the respondent acquiesce. The appeal was dismissed on 7 July 2014, and applications for permission to appeal were refused on 4 August and 10 November The application for leave to remain on Article 8 grounds outside the rules following detention 7. The appellant, who was by this time subject to reporting conditions, was detained when reporting on 13 October While in detention, she made another application for leave to remain on 24 October This application was made with the assistance of Paul John & Co Solicitors who wrote a lengthy letter on her behalf. She wished to regularise her stay in the UK so she could have stability and security in her life. She requested the Secretary of State to exercise discretion in her favour, and to grant her leave to remain considering her compassionate circumstances. She had family and friends in the UK, who supported her emotionally and she was very attached to them and she spent a lot of time with them. She was unable to return to the Philippines, as she had become accustomed to the way of life here. The Secretary of State gave detailed reasons for refusing the application on 4 November The application for asylum following the refusal of the application under Article 8 ECHR 8. On 6 November 2014 Paul John & Co Solicitors informed the Home Office in writing that their client, the appellant, wished to claim asylum. A statement from her was attached for consideration. 9. In the statement, the appellant said she had been in Yarlswood for almost a month. She and her parents had been the victims of human trafficking. They had not paid back any of the money that they owed the traffickers, so they had threatened them with violence. Secondly, her father and her aunty had had a secret relationship, and had given birth to a child who was now almost 3 years old. Her uncle s family, who had a military background, had found out and they had given them a threatening message. They had threatened to kill whoever came home back to the Philippines. So they all feared for their lives, especially her. 10. The appellant was given a screening interview in respect of her asylum claim five days later on 11 November At the screening interview, 3

4 she indicated that she was not claiming asylum in her own right, but as a dependant of her father s asylum claim. 11. The substantive asylum interview took place on 25 November A family friend was present at the interview. The appellant said the reason for her parents migrating to the UK was they owed money to an agency, and they threatened them if they did not pay them. Her dad went first to the UK, and it was really scary (Q&A15). She could not remember the details. She only knew what her dad had told her. They did not want her to get involved, as she was only aged 15 at the time. Her dad had been beaten by the people to whom they owed money. This was around She could not recall when her dad had last been threatened, it was a long time ago (Q&A61). 12. Her mum s sister had come to the UK in She had had a relationship with her father in the Philippines, and they renewed their relationship after her arrival here. Her aunt had given birth to a child by her father. Her aunt had a long term partner in the Philippines named Ryan. He had said that whoever came home to the Philippines he would kill. Ryan had threatened her personally through Facebook and texts. This was on her old Facebook account, and on her old telephone number. So she no longer had these messages to produce as evidence. 13. On 26 November 2014 the Secretary of State gave her reasons for refusing to recognise the appellant as a refugee. She considered that the appellant had embellished, if not outright manufactured, an account of persecution, following the failure of her numerous LTR applications, in order to thwart her removal from the UK. The Hearing Before, the Decision of, the First-tier Tribunal 14. The appellant s appeal against the refusal of asylum was heard by Judge Petherbridge sitting at Yarlswood on 10 December The appellant appeared in person, and the respondent was represented by a Home Office Presenting Officer. The judge received oral evidence from the appellant, her father, her aunt, and from the friend of the family who had attended the substantive asylum interview. The appellant s mother was also in court, but did not give evidence. 15. In his subsequent decision, the judge recorded that the appellant confirmed that she was fit and well and able to proceed with the formal hearing of her appeal. 16. The judge set out the appellant s claim in considerable detail in paragraphs 15 to 42. He summarised the respondent s reasons for refusal in paragraphs 43 to 60. His findings of fact were set out at paragraphs 62 onwards. He was in no doubt there had been a relationship between the appellant s father and her aunt out of which a child had been born. But he did not accept that the relationship had caused such concern to Ryan. For if it had, there would be more evidence of his hostile reaction. There was 4

5 no photograph of Ryan holding a gun to his head. The judge found that the appellant had received no threats from Ryan, and there was no reason why the appellant should be of any adverse interest to Ryan. The evidence with regard to Ryan s family and siblings being involved in the police and the military was vague and was not substantiated by any other evidence in support of Ryan s family having the ability to cause the appellant any problems if she was returned to the Philippines. 17. The other aspect of her claim was that she feared members of the agency from whom her father was said to have borrowed money for her schooling and to facilitate him and her and her mother s entry to the United Kingdom. The appellant s father had had no contact with the alleged agency since Her knowledge of the agency lacked any substantial weight, and her father was unable to give any detail of what the agency organisation consisted of. There was also no documentary evidence of any threat having been received by the appellant s father from the agency. 18. Judge Petherbridge considered that, if such a threat existed from the agency, the threat did not lie against the appellant, but against her father. Further, the objective evidence showed that there was not a systematic or institutionalised unwillingness to afford protection to the victims of persecution by non-state agents. 19. The judge continued in paragraph 75: Overarching these two main strands of the appellant s asylum claim is the fact that she sought to regularise her stay in the United Kingdom since 2012 by virtue of various applications, all of which have been refused such that her appeal rights are exhausted. In those applications, the appellant never made any mention whatsoever of the difficulties she now claims she would have if she were to be returned to the Philippines. The appellant was unable to provide any plausible explanation as to why, if the threats to her as she claims exist if she were to be returned to the Philippines are so great, she did not mention those aspects which form the basis of her asylum claim at a much earlier date than she did and were only made when removal directions had been set. The Application for Permission to Appeal to the Upper Tribunal 20. The appellant applied for permission to appeal to the Upper Tribunal. In her application notice, she said she continued to be represented by Paul John & Co Solicitors. But there were no grounds of appeal as such. Instead there was a lengthy statement apparently written by the appellant running over a number of pages. In the statement, the appellant insisted that she and her family had a well-founded fear of persecution for the reasons which she had given before the First-tier Tribunal. She said that they had mentioned their bad situation to the female solicitor who had assisted them in the application which they had made in But she had said there was no need to add the asylum claim to their ILR application. She had made her asylum claim on the advice of her current 5

6 solicitor. The previous solicitor had prevented them from mentioning the threat, as it might ruin their application for leave to remain. The decision of the First-tier Tribunal was biased and discriminatory. The decision did not show any solid grounds for believing that she would not be in danger when she returned to her country of origin. The Initial Refusal of Permission 21. On 19 December 2014 First-tier Tribunal Judge Bird gave detailed reasons for refusing the application for permission to appeal. She characterised the appellant s grounds of appeal as being merely a disagreement with the respondent s decision as well as the judge s findings. The findings of the judge were adequately reasoned, and the conclusions that the judge arrived at were open to him on the evidence. No arguable error of law arose. The Renewed Application to the Upper Tribunal 22. On a renewed application to the Upper Tribunal, the appellant indicated that she was no longer legally represented. Ground 1 of her renewed application was that she was not able to defend herself properly because she had no legal aid. She felt she had been judged unfairly and the decision had been unlawful. She had been accused of deception, and her evidence and her witnesses had not been heard or investigated properly. The court s decision had not proved that she was in grave danger due to her father and aunt s situation. The court had refused to consider her case, which she believed was unfair. The Eventual Grant of Permission 23. On 21 December 2014 Upper Tribunal Judge Rintoul granted permission to appeal for the following reasons: Given that the lawfulness and fairness of the detained fast track process is challenged in the renewed grounds, and in light of the decision in Detention Action v SSHD [2014] EWCA Civ 1634, I considered the submission at the hearing was unfair is arguable. While there may be less merit in the other grounds of challenge, permission is granted on all grounds. The Hearing in the Upper Tribunal 24. By letter dated 18 February 2015, Kinas Solicitors informed the Upper Tribunal that they were no longer instructed to act for the appellant in her appeal. 25. The appellant appeared before me in person. She was accompanied by all the family members who had attended the hearing at Yarlswood. I received representations from both the appellant and her father. The appellant informed me that she had been released from detention on 2 6

7 January The decision she was appealing against was quite biased. They had told everything in full, and it was how they were judged. I asked her if there was any evidence that she had not been able to present in support of her appeal, and she answered she had already said her evidence. When asked about her asylum statement, she said she had written this to get out of detention. Her parents had been hiding the facts from her. Her father had told her the whole story while she was in detention. 26. The appellant s father said that the solicitors already knew the whole story. He had told them the whole story, maybe in March But they said there was no need for the Home Office to know this. He also told the whole story to the previous solicitors who had acted for them in the application made in June They had advised them that there was no need to claim asylum. Discussion 27. The case of Detention Action v Secretary of State for the Home Department [2014] EWCA Civ 1634 concerned a challenge to the Secretary of State s policy, practice and procedure in respect for detention of applicants for asylum in the fast track system ( the DFT process ) after the refusal of asylum by the Secretary of State and pending an appeal against that decision. As stated by Beatson LJ at paragraphs [1]-[2], the DFT process is designed to facilitate the expeditious determination of applications for asylum and of appeals. It involves the detention of all applicants for asylum whose claims the Secretary of State considers can be determined quickly, and a tight timetable for decisions on applications, and appeals against the refusal of asylum to the First-tier Tribunal and the Upper Tribunal. 28. In the proceedings, Detention Action, a charity, challenged a number of aspects of the DFT process. Before Ouseley J its challenge was partially successful. The first instance judge held that the way the Secretary of State operated the DFT process in the period until she determined an application for asylum was unlawful. The very tight timetable created, an unacceptably high risk of unfairness for those who are or may be vulnerable applicants who did not have access to lawyers sufficiently soon after detention in the DFT to enable advice to be given to them before their substantive asylum interview. 29. There are two matters on which Detention Action s challenge did not succeed and on which it appealed to the Court of Appeal against the judge s order. These matters do not appear to me to have any bearing on this case, and so I say nothing about them. 30. It is the finding by Ouseley J (supra at paragraph 28) which is potentially relevant to the arguable ground of appeal identified by Upper Tribunal Judge Rintoul. 7

8 31. However, having carefully examined the procedural history (supra at paragraphs 2 to 15), I am wholly unpersuaded that there was any procedural unfairness in the disposal of the appellant s asylum appeal by the First-tier Tribunal. In so far as it is material, the appellant was not detained after she had made an asylum claim. She was already in detention pending administrative removal when she made her asylum claim. She had access to legal advice for this purpose, and indeed she says that it was her then solicitors who advised her to claim asylum. She was not a vulnerable applicant, and she had had unrestricted access to legal advice on the question of her status in the UK prior to her detention on 13 October She had had ample occasion and opportunity to discuss a putative asylum claim with both the solicitors who acted for her in 2012, and the solicitors who acted for her subsequently. I accept that the absence of legal representation at the appeals heard by Judge Fox and Judge Petherbridge (and also at the hearing before me) may have been due to lack of funding, but there was clearly enough funding available to the appellant to take legal advice and to pay representatives to make extensive written representations on her behalf. 32. Before me, she claimed that it was only while she was in detention that she had first learned from her father the threat which she faced on return to the Philippines. But this claim is wholly contradicted by the information which I received from her father, and also by the content of her substantive asylum interview. 33. All the witnesses whom the appellant wished to call in support of her asylum appeal gave evidence before the First-tier Tribunal, and there was no additional evidence bearing on her appeal that the appellant was unable to deploy because she was in the DFT process. 34. Judge Petherbridge gave anxious scrutiny to the appellant s asylum claim, and he gave adequate reasons for rejecting it. The allegations of bias and unfairness which permeate the appellant s grounds of appeal to the Upper Tribunal are wholly without merit. In reality, the appellant s real complaint is that the judge did not believe her. As held by Judge Bird when initially refusing permission to appeal, the judge s conclusions were reasonably open to him on the evidence for the reasons which he gave. Notice of Decision The decision of the First-tier Tribunal did not contain an error of law, and the decision stands. Accordingly, the appellant s appeal to the Upper Tribunal is dismissed. The First-tier Tribunal did not make an anonymity direction. Signed Date 2 March

9 Deputy Upper Tribunal Judge Monson TO THE RESPONDENT FEE AWARD I have dismissed the appeal and therefore there can be no fee award. Signed Date 2 March 2015 Deputy Upper Tribunal Judge Monson 9