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8 July, 2019

LB (Gambia) Petitioner [2019] CSOH 45

Case comment by Michael Way, Advocate:

Lord Pentland refuses judicial review in “foreign criminal” deportation case

Facts

The petitioner was a national of the Gambia. He sought judicial review of an Upper Tribunal (“UT”) decision to refuse him permission to appeal against a decision of the First-tier Tribunal (“FTT”).

The petitioner was 39 years old. His claim was that he had been granted refugee status in Italy in 2008. However, he had subsequently received drug-related convictions in Sweden in January 2012 and July 2013, resulting in 4-month and 24-month sentences of imprisonment. He was deported from Sweden in 2013 and banned from re-entering for 10 years.

Having left Sweden, the petitioner appears to have travelled from the Gambia through Senegal and Spain to the Republic of Ireland. He claimed asylum in Ireland. He appealed the initial rejection, but left for the UK before his appeal was heard.

Ultimately, the petitioner was detained by police in the UK in May 2016. His Swedish convictions were discovered. The Home Office issued a deportation order some 15 months later. The petitioner responded by making a human rights claim and applying to transfer his refugee status from Italy to the UK. The petitioner’s claims were rejected by the Home Office and so he appealed to the FTT.

Issues

There were two broad attacks on the FTT’s decision. First, the FTT had arguably erred in finding that the petitioner did not have refugee status in Italy. Moreover, it was incumbent on the Home Office to take steps to verify the petitioner’s alleged refugee status. Second, the FTT had arguably erred by wrongly treating the petitioner as a “foreign criminal” as defined in s.32 UK Borders Act 2007. The UT had adopted these errors in refusing permission.

The questions for the Court were therefore:

  1. Did the FTT arguably err by finding the petitioner did not have refugee status in Italy?
  2. Was it incumbent on the Home Office to take steps to verify the petitioner’s alleged refugee status?
  3. Did the FTT arguably err by wrongly treating the petitioner as a “foreign criminal” as defined in s.32 UK Borders Act 2007?

Decision

Lord Pentland was not with the petitioner on any of the questions. The petition was refused (at [29]).

The Court found that the issue of the petitioner’s alleged refugee status was a factual finding which was “amply supported by the evidence before the FTT” (at [18]). The FTT judge had made sustained adverse criticism of the petitioner’s credibility (see {12]-[17]). He did not accept any of the documents produced were genuine and gave reasons for disbelieving anything the petitioner said in support of his case (at [17]). No error arose.

Neither was it incumbent, in the circumstances, for the Home Office to verify the petitioner’s refugee status documentation. Such a duty may arise where it would be “simple and straightforward” to verify, the documents were crucial and were said to come from an otherwise unimpeachable source. Lord Pentland upheld the respondent’s submission that in this case verification would have been “far from straightforward” (at [20]). This point fell to be rejected.

As to the erroneous label of “foreign criminal”, this was dismissed by Lord Pentland as being a “purely technical and theoretical” point (at [28]). The FTT judge had “complied with the Guidance in substance and in spirit”. The court noted the significance of Guidance to the effect that those convicted of sentences in the UK and those convicted abroad should be treated alike in order to give proper effect to Article 8 ECHR (at [25]). The UT was entitled to refuse leave and no error arose.

Analysis

This decision will be welcomed by the Home Office. It provides a reminder that the Court will be slow to entertain technical or theoretical errors in such circumstances.

The case also demonstrates the difficulties that petitioners face where they have been fixed with an adverse credibility finding in the FTT. Having been found incredible, even otherwise objective evidence supportive of your case can be rejected where you are the primary source of the information.

Once Counsel is involved at the stage of a judicial review the damage may be too severe to rehabilitate even a once promising claim. Agents should bear in mind that Counsel can be instructed to appear in the FTT. While nothing can be guaranteed, by front loading the preparation, such difficulties further down the line may be avoided.

Representation

Ampersand’s Graham Maciver appeared for the respondent.

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