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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER		Case No: UI-2024-004774 UI-2024-004775
	First-tier Tribunal No: PA /52476/2023 LP/00473/2024 PA/53326/2023 LP/00917/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

23 ^rd January 2025

 

Before

 

UPPER TRIBUNAL JUDGE RUDDICK

 

Between

 

JD and ED

Appellants

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellants: Ms E. Atas, instructed by MBM Solicitors Ltd

For the Respondent: Ms. A Ahmed, Senior Home Office Presenting Officer

 

Heard at Field House on 13 January 2025

 

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 appellants, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

 

1.             The appellants appeal with permission against the decision of First-tier Tribunal Judge Scullion ("the Judge"), promulgated on 5 April 2024, dismissing their linked appeals against the respondent's decisions of 19 April 2023 to refuse their human rights and protection claims made on 10 November 2021.

2.             An anonymity order was made in the First-tier Tribunal because the first appellant had made a claim for international protection. Although he is no longer pursuing a claim under the Refugee Convention, he continues to state that he is at real risk of serious harm in violation of Article 3 if returned to his home country. I therefore consider it appropriate to continue the anonymity order at this time.

3.             The appellants are a father and son and their claims arise out of the same factual matrix. They are citizens of the Philippines. The first appellant was born in the Philippines in 1981. He entered the UK on 20 January 2008, together with his wife, who is also a citizen of the Philippines. They had both been issued visit visas valid through 11 April 2008 and they have remained in the UK since their arrival. The second appellant was born in the UK in August 2018.

4.             The first appellant has submitted evidence that he and his wife have sought legal advice about regularising their status from at least three different firms, and since at least 28 March 2015. On 20 January 2020, Connaughts Solicitors sent a document entitled "Statement of Additional Grounds" to the respondent. This statement consisted of representations asserting that the family were eligible for a grant of leave to remain under Para. 276ADE(1)(vi) of the Immigration Rules, based on their good character and the private and family life they had built in the UK. The appellant says there was no response to this statement (which on its face does not appear to meet the requirements to be considered as a valid application).

5.             The first appellant then claimed asylum on 10 November 2021. His wife and son were dependants on his claim. He and his wife were given screening interviews on 30 November 2021, at which the respondent confirmed with the first appellant and his wife that the protection and human rights claims of all three members of the family arose out of the same factual matrix.

6.             On 17 August 2022, the first appellant submitted a Preliminary Information Questionnaire (PIQ), which he had completed with the assistance of his solicitor. The respondent interviewed him about his asylum claim on the following day.

The family's protection and asylum claim

7.             The details of the family's protection and human rights claim have emerged over time. According to the respondent's record of the first appellant's screening interview on 30 November 2021, the first appellant said that he and his wife had come to the UK to work. They had been assisted by an agent who had applied for tourist visas on their behalf and had told them that "once we arrived in Europe, they would apply for our work visas." They had paid £20,000 in total for the agent's assistance. When the first appellant was asked, "Please BRIEFLY explain ALL of the reasons why you cannot return to your home country?" he answered:

"We sold some of our family property and borrowed money from family friends to pay the agents.

I do not have any fears apart from not having a job, nothing to give to my family."

8.             The account set out in the first appellant's PIQ was similar. He answered the question of what he feared in his home country by writing "First not having [a] job to support my family and a shelter to provide and especially the future of my son." When asked about events that had happened since they arrived in the UK that made him afraid to return, he wrote that they had never received the working visas they had been promised and they never heard anything further from their agents, "Just a false hope." He concluded, "We have debt and sold our property, we don't have anything left in our country." He was also asked about risks his son would face in the Philippines, and he mentioned that he only spoke English and had asthma and "might get stressed bec[ause] of different environment in Philippines."

9.             The first appellant's substantive asylum interview was conducted the day after he signed his PIQ. For the first time, he mentioned not only that he and his wife gone into debt to fund their travel to the UK, but also that some of the people they had borrowed money from had threatened them by contacting his family in the Philippines and telling them that he still owed them money. He was afraid about what these people would do to him and his family if he returned.

10.         On 19 April 2023, the respondent refused the protection and human rights claims of all three family members. She accepted that the appellant had borrowed money from family and friends to come to the UK, noting that his account had been consistent in this regard. However, his account of fearing harm from money lenders was rejected because he had not raised it at his screening interview, he had been unable to give sufficient details about the identity of the money lenders, and his family had never been harmed. His credibility had also been damaged by his delay in claiming asylum, in accordance with Section 8 of the Asylum (Treatment of Claimants, etc) Act 2004. Even if the first appellant were threatened by money lenders, sufficiency of protection and internal relocation would be available. In terms of Article 8, there were no significant obstacles to the family's reintegration in the Philippines and no exceptional circumstances. The second appellant was too young to have put down roots in the UK and would be relocating to the Philippines with his parents. He was a citizen of the Philippines, and his parents could help him integrate. Medical care would be available for the second appellant's asthma and for his mother's hearing loss.

The appeal

11.         In accordance with the Family Asylum Claim Process, the respondent issued a single refusal decision and recognised that the first appellant and his son had rights of appeal; the appeal of their wife and mother was struck out.

12.         In support of their appeal, the appellants provided two bundles of evidence. These included: a skeleton argument; witness statements from the first appellant and his wife; evidence of contact with three different firms of legal advisers; letters from their friends in the UK attesting to their good character; a document purporting to be a memorandum issued by a local police office in the Philippines on 4 November 2023, recording that the first appellant's sister had that day reported to them a threat made against her brother in 2009; a letter and a statement from that sister, both dated in February 2024, repeating the account of the threat made in 2009; several achievement certificates from the second appellant's school; a letter from the child's Headteacher confirming his attendance; medical records; and an Independent Social Work Report by Ms Louise Stockton.

13.         The respondent conducted a respondent's review in which she maintained her reasons for refusal and made detailed comments on the new evidence.

14.         The appeals came before the Judge on 28 March 2024 to be heard in a single hearing, and in a single decision promulgated on 5 April 2024, he dismissed them on all grounds.

The challenged decision

15.         The Judge recorded that the appellants were no longer pursuing an asylum claim, as there was not Refugee Convention ground [7] and at [9] he identified the issues before him as:

"(a) whether the appellants qualify for humanitarian protection;

(b) whether there would there are very significant obstacles to the appellants' integration in the Philippines;

(c) whether there would otherwise be a breach of the appellants' private and family life rights in the UK such that their removal would be disproportionate under Article 8 ECHR."

16.         The Judge then set out that he had heard evidence from the first appellant and his wife and submissions from both parties [10]-[11] and the legal framework for Article 8 appeals [12]-[14]. There was no self-direction as to the legal framework in Humanitarian Protection and Article 3 claims, but later, at [31] and [39], the Judge expressly applied the relevant lower standard of proof.

17.         The Judge began his findings by confirming in general terms that he had taken into account all of the evidence and had considered it in the round, applying anxious scrutiny. He also confirmed that he has taken into account cultural differences between the UK and the Philippines.

18.         At [16]-[30], the Judge gave his reasons for finding that the first appellant's account of being at risk of harm from money lenders, "[w]hen viewed holistically", lacks cogency and consistency. I set them out in full, as the adequacy and rationality of these reasons is challenged in the appellants' second ground of appeal.

(i)                  The first appellant did not mention this fear in his application [of 2020], at his screening interview or in his PIQ [17]. He had carefully considered how much weight to give to the screening interview, in accordance with the guidance in JA (Afghanistan) [2014] EWCA Civ 450, but he concluded that it was reasonable to have expected the appellant to raise his fear of moneylenders either at the screening interview or in his PIQ response, especially as the fear did not involve sensitive issues, such as sexual identity or trafficking [18]. His account had therefore been internally inconsistent.

(ii)               The first appellant's account was externally inconsistent with the letter from Connaughts, which was framed entirely in terms of Article 8 [20], and the appellant's evidence at the hearing about whether he had told Connuaghts about his fear of money lenders was internally inconsistent [21]. The Judge therefore concluded that he had not mentioned this fear to them [22].

(iii)             The first appellant's "evidence about his communications with money lenders was internally inconsistent. His application and his oral evidence was that he ceased communication with money lenders when he left the Philippines but in other evidence, for example in paragraph 6 of his witness statement dated 21 March 2023, he stated he had had threats from money lenders. In cross-examination Appellant 1 explained this discrepancy was because in fact none of the threats had not [sic] been made to him directly but via his family in the Philippines. However, I find that Appellant 1 had not made that clear in his screening interview, in the PIQ, or in the asylum interview. And I find that Appellant 1 did not offer a credible reason for that significant omission in his oral evidence."[23]

(iv)             By his own admission in his oral evidence, "he is not being actively pursued by money lenders" [24].

(v)               His account of the threats made to his family was internally inconsistent, as he said both that his family hide the threats from him and that they told him about threats that were made in 2009 [25].

(vi)             There was no "credible evidence" either of the loan or of the repayments.

(vii)           It was not plausible that the money lenders would not have required any surety, as they knew the appellant was leaving the Philippines [27].

(viii)        The police report dated 4 November 2023 and the sister's witness statement were vague and lacked detail [27], and the fact that the sister filed a report in 2023 about a single incident said to have occurred 14 years before was "indicative of an account which has been constructed for the purpose of helping Appellant 1's case for staying in the UK." Even if the account were true, moreover, it showed there had been a single threat 14 years ago and no one had been harmed [29].

(ix)             The first appellant's delay in claim damaged his credibility, in accordance with section 8(5) of the 2004 Act.

19.         The Judge then made a series of findings relevant to the Article 8 issues before him. He began by noting that the first appellant had lived in the Philippines until he was 27, spoke Tagalog, had a university degree, had worked in the Philippines and had family there, and had submitted character statements describing him as "hardworking, intelligent, capable and responsible." [32] The second appellant suffered from asthma and his mother used a hearing aid, but there was no evidence that medical care was unavailable or inaccessible [33].

20.         The Judge's consideration of the ISW report is challenged in the appellants' first ground of appeal. The Judge wrote:

 

"34. An undated "independent social workers report" concerning Appellant 2 was lodged [...] I find that the opinion contained in the report is predicated on the risk and fear that the appellants have informed her of. On page 9 of the report, for example, the social worker in giving her reasons why she considers it in Appellant 2's best interests to stay in the UK, states:

 

"... I believe it is in [Appellant 2]'s best interest as a child to stay within the United Kingdom ... as I would have real concerns about their safety within the Philippines. The family do not have the means to keep themselves safe from the threats to them ..."

 

"35. Given my findings that there is no real risk to the appellants on return, and the fact that the "independent social workers report" is predicated on there being such a risk, I afford limited weight to the report. I also find that there is an insufficiency of detail in the report on how Appellant 2's educational development would suffer in the Philippines."

21.         At [36], the Judge found that there was insufficient evidence to conclude that it would be in the second appellant's best interests to remain in the UK. He noted that he was only five years old and had "just started school", and his integration into wider British society would be limited, given his age. He and his parents were citizens of the Philippines and his parents spoke Tagalog.

22.         Based on these findings, the Judge found that the family would not be at real risk of serious harm in the Philippines [39], there would not be very significant obstacles to their reintegration [41], and their removal would not be disproportionate under Article 8 [48]-[55].

The grounds of appeal

23.         The appellants have been granted permission to appeal on two grounds:

24.         Ground One: Failure to consider relevant evidence and flawed assessment of ED's best interests. This ground argues that the Judge's assessment of the ISW report was flawed, because although it referred to potential risks of harm in the Philippines, its findings were also based on the second appellant's slow start in school, the strong ties he had developed to the school, his teachers and his friends, and the likely negative impact on him of a change in culture and language. The Judge had failed to engage with this aspect of the report. There was also relevant evidence from the child's Deputy Head Teacher and the first appellant that had not been mentioned, and the Judge was wrong to describe the second appellant as having "just started school", as he had been in school for 18 months by the time of the appeal.

25.         Separately, the findings about the child's best interests were made under the hearing of Para 276ADE(1)(vi), which was inappropriate, because in that context the only question was the parents' ability to reintegrate.

26.         Ground Two: The FTJ erred in law when requiring corroboration, failed to consider relevant evidence and speculated when making findings of fact on the protection claim. It is argued here that:

(i)              the finding that the first appellant had not mentioned his fear of moneylenders to Connaughts was speculation [22];

(ii)           the Judge's inconsistency finding at [23] was factually incorrect;

(iii)         the finding at [24] that the first appellant was not being pursued by money lenders was "misconceived because the threats to his family only arose because of his actions"; and

(iv)         the Judge erred in holding against the appellant that there was no credible evidence of the loan or the repayments, with reference to MAH (Egypt) v SSHD [2023] EWCA Civ 216. No evidence was reasonably available; the Judge should have taken into account the first appellant's evidence that "bank accounts and credits were only for the wealthy" in the Philippines.

The hearing

27.         I had heard able submissions from both representatives at the hearing before me, and I have taken them into account in making my decision. I will refer to specific points made where relevant in my discussion below, but the failure to mention a submission does not mean that I have not taken it into account.

Discussion

28.         In deciding whether the Judge's decision involved the making of a material error of law, I have reminded myself of the principles set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of "island-hopping", rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114].

Ground Two: the Judge's credibility assessment

29.         I deal with Ground Two first, because if the Judge was wrong to find that the family were not at real risk of harm in the Philippines, this error would clearly have undermined his reasons for putting little weight on the ISW report.

30.         As a preliminary matter, it is important to acknowledge that the respondent has accepted that the first appellant and his wife borrowed a considerable amount of money from family and friends in order to fund their journey to the UK. It is likely that the loss of those funds and the disappointment of their hopes for the future have had significant adverse consequences, for them and perhaps for their families in the Philippines. Nor does it appear to be challenged that they incurred those debts in good faith, expecting to be issued genuine work visas once they arrived. They may also, therefore, have been victims of a serious fraud.

31.         What is at issue in this appeal, however, is whether the Judge erred in law in concluding that they would not, in addition, be at risk of serious harm from money lenders on return.

32.         I find that he did not. In setting out his reasons for rejecting the first appellant's account of being at risk from money lenders, the Judge began by confirming that he had based his assessment on the evidence as a whole, as he was required to do. Any challenge to his credibility assessment must also engage with those reasons holistically.

33.         One clear theme running throughout most of the Judge's reasoning is that the first appellant's credibility was significantly damaged by his failure to raise his fears on return at any time prior to November 2021 [30], including at three specific points prior to his substantive interview, namely in his 2020 application (mentioned at [17] and [20]-[22]) or at his screening interview or in his PIQ (mentioned at [17], [18], [19] and [23]).

34.         There is no speculation or factual inaccuracy in his description of the evidence on this key point. The failure to mention this fear in the 2020 representations, the screening interview and the PIQ are clear, and there is no challenge in the grounds to the Judge's decision to put weight on the screening interview record after having taken into account the well-recognised limitations of such records.

35.         Moreover, the Judge's finding that the first appellant had not told Connaughts about this fear was based squarely on the evidence he gave at the hearing. It is not impermissible speculation for judges to draw inferences from oral evidence as long as those inferences are reasonably open to them.

36.         The assertion that the Judge's description of the evidence at [23] is based on a misstatement of that evidence is at first glance more plausible, but on a closer reading it relies on taking the reference of the witness statement of 21 March 2023 out of context. In this paragraph, too, the Judge was concerned with everything the appellant has said since his screening interview (as he repeated in the penultimate sentence). At the screening interview, the first appellant did not mention money lenders, and in his PIQ he clarified that they had gone into debt to pay their agents, but that not long after they arrived in the UK they "did not hear anything" from them. He said the same in an undated statement in his bundle, adding that "we cannot contact them anymore". It was reasonably open to the Judge to find that it damaged the first appellant's credibility that he had not made it clear at his screening interview or in the PIQ that although he and his wife heard nothing further from their agents, his family had been receiving threats from money lenders.

37.         In the same paragraph, the Judge considered the explanation for this "omission" that the appellant gave in his oral evidence - that the threat was being made to his family, not to him - and found it not to be credible. It cannot be said that this was irrational, especially when seen in the context of the evidence as a whole.

38.         It was also reasonably open to the Judge to find that first appellant's broad statements that he was receiving threats from money lenders, when they were made, were not "clear", because they did not initially clarify that the threats were all made indirectly. This was not set out until the end of the asylum interview, and in response to a question from the interviewer.

39.         Perhaps it would have been clearer if the Judge had not addressed both the "omission" of the threats from the screening interview and the PIQ and the lack of clarity in the account given of the threats given at the interview in the same paragraph, but I am mindful that the decision of a First-tier Tribunal judge should not be subjected to "narrow textual analysis [...] be picked over or construed as though it was a piece of legislation or a contract." Volpi at [2](vi). Read as a whole, the Judge's description of the evidence is reasonably accurate and the conclusions he drew from that evidence were open to him.

40.         At the hearing before me, Ms Atas withdrew the complaint about the Judge's finding at [24] that the appellant was not being pursued, as she acknowledged that the Judge was describing what the appellant said in his oral evidence, and that she had not provided any evidence that this was incorrect. In any event, this is a reasonable summary of the first appellant's evidence in the records that are before me. He does not say that he himself is being directly "pursued" at this time. Taken at its highest, his account is that in 2009, a threat was made to harm him if he returned to the Philippines and that, more recently, his family have been receiving threatening phone calls.

41.         As to the lack of corroboration, it is trite that judges are not required to comment on every assertion made by a witness and that therefore the Judge was not required specifically to reject the first appellant's claim that only wealthy people use money transfers in the Philippines before considering that some corroborating evidence could have been provided.

42.         The Judge's conclusion was that the long delay in mentioning the threats from money lenders indicated that this threat had been invented only recently. This conclusion was based not only on the credibility points discussed above, but also on several others that have not been challenged, namely the first appellant's inconsistency about whether and if so when his family told him about the threats and the implausibility of his sister making a report to the police about a single verbal threat 14 years after it happened.

43.         For these reasons, when read as whole as they must be, the Judge's reasons for rejecting the appellant's account were reasonably open to him on the evidence before him.

Ground One: the assessment of ED's best interests

44.         Having read the ISW report with care, I find that it was reasonably open to the Judge to characterize it as predicated on the risks in the Philippines that the family had informed Ms Stockton of. The Judge describes the paragraph cited in the decision as "an example", but it is in fact the first of only three paragraphs in the "Summary and conclusion" section. The third and final paragraph returns to the parents' fears for their safety and their son's safety, "and also" about the impact on their son's health and education. It is thus reasonable to read the risks in the Philippines as playing an important role in the ISW's overall conclusion.

45.         It is also reasonable to read the ISW's specific finding about the impact of removing ED from his current school and community as based on her acceptance of the risks of harm in the Philippines. On page 6, she wrote:

"I do believe that if [ED] was to move to the Philippines, the change in culture and language will have a significant negative impact on his development and confidence and that this is not in his best interest.

"It is usual for children to move schools and face new challenges such as making new friendships, however the challenges that [ED] will face in the Philippines exceed this. There is a risk that [ED's] parents could not be able to pay for the school fees and there is the additional risk of the threats of harm that have been made to [JD]."

46.         Moreover, the Judge did not put little weight on the report merely because it relied on an acceptance of the parents' fears that they would be at risk in the Philippines. He also found that there was insufficient detail about how the child's educational development would suffer in the Philippines. This view was also reasonably open to him. The report does not suggest that ED has any additional needs; he was slow to settle at school, but previous concerns about autism have been allayed, and he is now "a happy confident 6 year old boy who is developing well both behaviourally and educationally." He has formed strong and positive attachments to his school, his teachers and his friends, and there is no indication that he needed additional or specialist support in doing so. Indeed, the ISW's comment that it is "usual" for children to face challenges when moving schools and making new friends, "however" ED would face "additional" risks can fairly be read as meaning that there are no factors other than the additional risks identified by the parents that would make adapting to relocation particularly challenging. The only other specific challenges that the ISW mentions in the report are that ED has never been to Philippines and that he does not speak Tagalog. It was open to the Judge to find that this was insufficient detail to support a finding that relocating to the Philippines would have a "significant negative impact" on the child.

47.         It appears from the grant of permission that Upper Tribunal Judge Blundell had understood that the Judge had overlooked material evidence from the appellant's school. This was a misunderstanding. The evidence directly from the school consisted of achievement certificates and a letter from the Headteacher confirming his attendance rate of 97%, which adds nothing the description of a happy and well settled boy described in the ISW report. The grounds had complained that the Judge should have put more weight on certain statements that the Deputy Head had made to the ISW, but for the reasons set out above, I consider that the Judge was entitled to take the view of the ISW report that he did.

48.         As to the father's concerns about his son being bullied in the Philippines, being put back a year in school, or becoming depressed for these reasons, these are no doubt legitimate and genuinely held fears for a loving father to express. They could not, however, have made a material difference to the overall picture. At best, they provide some further evidence that the transition to a new language and country may be difficult. For an otherwise happy, well-adjusted child who has loving parents, is capable of forming strong and positive attachments with others and has no significant health needs, they could not have led to a different conclusion about whether relocating to the Philippines would have unjustifiably harsh consequences or otherwise be disproportionate. They were not material, and the Judge was under no obligation to comment on them.

49.         Finally, there was nothing wrong with the Judge making his factual findings about the circumstances of the entire family under the general heading of very significant obstacles. As detailed above, the Judge went on to consider these factual findings within the appropriate legal matrices in reaching his conclusions.

50.         For these reasons, the decision of the First-tier Tribunal was not infected by any material error of law.

Notice of Decision

T he making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. Judge Scullion's decision stands, and the appellant's appeal is dismissed .

 

 

E. Ruddick

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 January 2025