Akpan, R (on the application of) v Secretary of State for the Home Department

This is an appeal by the Secretary of State from Elizabeth Cooke, sitting as a Deputy Judge of the High Court, in which she quashed a decision of the Secretary of State refusing to grant the respondent, Ms Akpan, leave to remain in the United Kingdom under paragraph 276ADE of the Immigration Rules as it stood at the relevant time. The issue in the case is whether Ms Akpan can establish that she “has no ties (including social, cultural or family)” with the country to which she would have to go if required to leave the United Kingdom, namely Nigeria.

At the relevant time, paragraph 276ADE provided in material part as follows:

“The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

…

(vi)

is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.”

Ms Akpan is a Nigerian national, born on 31 July 1988. She came to this country as a 14 year old in January 2003.

The circumstances in which Ms Akpan came to the United Kingdom as a child were tragic. She returned from school in Nigeria one day to find her father dead, her home ransacked and her mother, brother and sisters all fled. She was told by a family friend that her father had been killed by a local gang known as the “Bakassi Boys” with whom he had been in dispute. Ms Akpan was helped by friends to leave the country and come to the United Kingdom.

Shortly after arriving here, in March 2003 Ms Akpan made a claim for asylum on the grounds of the threat she would face from the Bakassi Boys if returned to Nigeria. Her claim was refused in April 2003, but because she was an unaccompanied minor she was granted discretionary leave to remain until she was 18. She was placed with a foster mother, with whom she has developed a close bond.

In April 2006, before her leave to remain expired, Ms Akpan applied for an extension on asylum and human rights grounds. Her leave to remain was extended by statute pending determination of her application.

The Secretary of State refused her application. Ms Akpan’s appeal was dismissed by Immigration Judge Molloy in the Asylum and Immigration Tribunal in a determination of 5 April 2007. IJ Molloy found Ms Akpan to be a credible witness and accepted her account of the circumstances in which she left Nigeria. He also accepted her evidence that she had not made any contact with anyone at all in Nigeria since coming to the United Kingdom, but did so with dismay since he considered that there were reasonable avenues available to her for seeking better information from persons in Nigeria or the Nigerian authorities which she ought to have pursued. Accordingly, he did not consider that Ms Akpan had demonstrated to the appropriate standard that she would be at real risk of persecution or harm if she were removed to Nigeria.

Ms Akpan was granted a reconsideration of IJ Molloy’s determination. By a determination of 14 September 2007 Senior Immigration Judge King again dismissed her appeal. SIJ King accepted the previous finding that Ms Akpan was a credible witness. He noted that at the previous hearing Ms Akpan had given evidence that, although she had not personally tried to contact her family in Nigeria, there were friends who had been back, but it was a big country and they had not been able to make contact with any family members there. Ms Akpan also said that she had no friends in Nigeria. SIJ King again found that it would be safe for Ms Akpan to return to Nigeria; he also held that she had not discharged the burden upon her to show that she would be without family support: “She has a mother, brothers and sister and there is no reason to believe that they would not still be in the area and able to give support. The fact that the appellant’s friend was unable to make contact with the family did not necessarily mean that the family was no longer in that area” ([13]). He found that, if returned to Nigeria, “The appellant would be returning to an area not as a stranger but someone having contact with the area and the potential of friends and family in that area capable of providing some assistance” ([14]).

Ms Akpan applied for permission to appeal to this court. This was refused by Longmore LJ on 12 March 2008. This meant that her leave to remain came to an end, as her appeal rights had been exhausted. Nonetheless, Longmore LJ expressed the hope that the Secretary of State would allow her to stay here in order to complete the nursing studies she was then undertaking at King’s College, London. Ms Akpan was not removed and she graduated with a nursing degree from King’s College in 2009. Since then, by reason of her status as an unlawful entrant she has been unable to work.

In December 2009 the Secretary of State asked for information from Ms Akpan, which she supplied. She then heard nothing more for a long time.

On 25 March 2013, under cover of a letter from her solicitors, Ms Akpan filed a new application for leave to remain on the basis of her Convention rights under Article 2 (right to life), Article 3 (prohibition of torture), Article 8 (right to respect for her private life and family life with her foster mother in the United Kingdom) and paragraph 276ADE of the Immigration Rules. We were not provided with the full set of materials submitted to the Secretary of State, but it appears from the completed application form what documents were sent. In the application form, in answer to a question regarding her ties with Nigeria she simply put “No ties”, without further explanation, and also stated in answer to another question about family and friends there, “No family or friends”. The covering letter stated: “She has no family to return to in Nigeria. She has no social, cultural or family ties in Nigeria”. It referred to the facts that her father had been killed by the Bakassi Boys and that she had left Nigeria as a minor, and maintained that it would be difficult to locate any of her family if she returned to Nigeria.

Ms Akpan did not provide copies of, nor did she rely upon, the decisions in the Tribunal. Mr Walsh, who appeared for her on this appeal, contended that the Secretary of State should have traced these decisions and considered them. I do not agree. It was incumbent on Ms Akpan to submit with her application any materials on which she wished to rely.

The Secretary of State refused Ms Akpan’s application by a short decision letter dated 14 May 2013. In relation to paragraph 276ADE(vi), the letter stated: “You have spent 14 years of your life living in Nigeria and, in the absence of any evidence to contrary, it is not accepted that in the period of time that you have been in the UK you have lost ties to your home country.” The letter did not refer to the decisions in the Tribunal. This is unexceptionable, since Ms Akpan did not seek to rely upon them in support of her application.

Thus it may be observed that Ms Akpan’s application under paragraph 276ADE(vi) was in very summary terms, involving little more than unsupported assertion; and the Secretary of State’s decision on that application was also very summary, essentially relying on the period of time spent by Ms Akpan in Nigeria and the age at which she left.

Ms Akpan’s solicitors wrote a pre-action protocol letter dated 21 May 2013 to threaten a judicial review challenge to the Secretary of State’s decision. The letter essentially repeated what had been said before. It stated that Ms Akpan “has not been able to get in touch with any of her family in Nigeria since she left the country in 2003” and that “she has no exposure to the cultural norms of Nigeria and she has no family or friends to return to in Nigeria.” Again, the previous Tribunal decisions were not relied upon.

The Secretary of State sent a supplementary decision letter dated 3 February 2014, again rejecting Ms Akpan’s application. The letter was poorly drafted and contained serious factual errors which indicated it had been prepared with little attention to the detail of the case (it erroneously gave Ms Akpan’s age as 35, referred to a non-existent partner and asserted that she had lived in the United Kingdom for over 10 years unlawfully, whereas for much of the time she had lawfully been here with leave to remain). However, the material part of the reasoning in relation to paragraph 276ADE(vi) was accurate and remained unchanged:

“… your client came to the UK in 2003 and she would have spent 14 years in Nigeria. In the absence of any evidence to the contrary, it is not accepted that in the period of time that she has been in the UK she has lost ties to her home country. While it is noted that she claims her father was killed by the Bakassi Boys, and she has no family living in Nigeria, it is considered that she lived there for her childhood and teenage years and that she would still have memory of culture and customs there …”

Ms Akpan then commenced these judicial review proceedings, maintaining that she should have been granted leave to remain under paragraph 276ADE(vi). This was the only claim maintained in the proceedings; she was not given permission to pursue claims based on Convention rights.

Ms Akpan was successful before the deputy judge. The deputy judge held that the Secretary of State was irrational in refusing Ms Akpan’s application under paragraph 276ADE(vi). The Secretary of State appeals to this court.

Although the deputy judge referred to the relevant authorities on the interpretation of paragraph 276ADE - in particular, Ogundimu (Article 8 – New Rules) Nigeria [2013] UKUT 60 (IAC); [2013] INLR 789 and YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292; [2015] INLR 405 - I consider that she fell into error in certain respects. The deputy judge analysed and relied upon the Tribunal decisions, though they had not been relied upon by Ms Akpan in her application to the Secretary of State. More importantly, the deputy judge misinterpreted the guidance on the interpretation of paragraph 276ADE(vi) in the authorities and hence misinterpreted the paragraph itself, giving too narrow a meaning to the concept of “ties” to Nigeria.

Ogundimu is a case regarding paragraph 399A of the Immigration Rules, as they stood at the time, which related to the test for granting leave to remain under the Rules to foreigners who had committed criminal offences. Paragraph 399A uses the same phrase, “no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”, as is used in paragraph 276ADE(vi). It is common ground that Ogundimu provides authoritative guidance regarding the meaning of that phrase in both contexts.

The Upper Tribunal said this at [123]-[125]:

“123.

The natural and ordinary meaning of the word ‘ties’ imports, we think, a concept involving something more than merely remote and abstract links to the country of proposed deportation or removal. It involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin. If this were not the case then it would appear that a person’s nationality of the country of proposed deportation could of itself lead to a failure to meet the requirements of the rule. This would render the application of the rule, given the context within which it operates, entirely meaningless.

124.

We recognise that the text under the rules is an exacting one. Consideration of whether a person has ‘no ties’ to such country must involve a rounded assessment of all the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances. Nevertheless, we are satisfied that the appellant has no ties with Nigeria. He is a stranger to the country, the people, and the way of life. His father may have ties but they are not ties of the appellant or any ties that could result in support to the appellant in the event of his return there. Unsurprisingly, given the length of the appellant’s residence here, all of his ties are with the United Kingdom. Consequently the appellant has so little connection with Nigeria so as to mean that the consequences for him in establishing private life there at the age of 28, after 22 years residence in the United Kingdom, would be ‘unjustifiably harsh’.

125.

Whilst each case turns on its own facts, circumstances relevant to the assessment of whether a person has ties to the country to which they would have to go if they were required to leave the United Kingdom must include, but are not limited to: the length of time a person has spent in the country to which he would have to go if he were required to leave the United Kingdom, the age that the person left that country, the exposure that person has had to the cultural norms of that country, whether that person speaks the language of the country, the extent of the  family and friends that person has in the country to which he is being deported or removed and the quality of the relationships that person has with those friends and family members.”

The guidance in Ogundimu was approved by this court in YM (Uganda). Aikens LJ gave the leading judgment. At para. [50] he cited para. [123] of the judgment in Ogundimu with approval. He went on (adding his footnotes to the text):

“51.

The UT in that case went on to recognise that the test was an exacting one. However, the exercise that had to be conducted was a "rounded assessment of all the relevant circumstances", which were not to be confined to "social, cultural and family" issues. The UT concluded, on the facts, that Mr Ogundimu did not have ties with Nigeria, the country to which he would have been deported. It noted that his father might have ties but they were not the ties of Mr Ogundimu himself "or any ties that could result in support to [him] in the event of his return [to Nigeria]" [see para. [124]]

52.

I agree with the analysis of the UT in Ogundimu. Whether this is a "hard –edged" factual enquiry, or a question of "evaluation" [The phrases used by Lord Dyson MR in MF (Nigeria) [2013] EWCA Civ 1192 at para. [35] to describe the nature of the investigation to be carried out under paras. 398, 399 and 399A of the Immigration Rules],http://www.bailii.org/ew/cases/EWCA/Civ/2014/1292.html - note23#note23 the question in this case is: what ties does YM himself have with Uganda and would they support him in the event of a return there. Ties of other relatives, particularly YM's mother, are irrelevant.”

In my judgment, the deputy judge erred in her interpretation of this guidance. She treated the list of considerations in para. [125] of the judgment in Ogundimu, introduced by the words “must include”, as mandatory considerations which always had to be present before “ties” could be found (see [25] in her judgment), and treated the presence or absence of a relationship with persons in Nigeria as the critical factor in deciding whether “ties” existed for the purpose of paragraph 276ADE(vi): see [26] in her judgment, as follows:

“Memories are not enough. Spending a childhood in Nigeria is not enough. Knowledge of culture and familiarity with custom is not enough. What is wanted is active connection, in the form of a relationship of some kind. …”

Also see the deputy judge’s focus on the question of existing relationships in [27], [28] (“The evidence here is that the claimant had no relationships in Nigeria”) and [31] (“She certainly has memories of Nigeria, traumatic ones at that, but her ties, her relationships, have vanished”).

Contrary to this interpretation, in my view the Upper Tribunal in Ogundimu correctly construed the relevant phrase regarding “ties” in paragraphs 276ADE(vi) and 399A as importing a general evaluative judgment (“a rounded assessment of all the relevant circumstances”: [124]), as part of an “exacting test” ([124]) which is focused on the question whether there is “a continued connection to life” in the country in question ([123]) amounting to ties “that could result in support to the appellant in the event of his return there”, so that the consequences for an applicant in trying to re-establish themselves in their country of origin would not be “unjustifiably harsh” ([124]).

At para. [125] of its judgment in Ogundimu the Upper Tribunal was not seeking to put this “rounded assessment” into a straitjacket, nor to create a checklist of matters which had to be present or which had to be addressed directly in a decision letter. It was simply indicating that if the relevant decision-maker did have regard to these considerations in making their “rounded assessment”, that would be lawful. In other words, the listed considerations could on no view be regarded as irrelevant considerations for the purposes of the assessment to be made, if a decision-maker chose to have regard to any of them. Depending on the particular circumstances of a specific case, one or all of them might be highly relevant.

Although post-dating the judgment in the present case, the broad evaluative nature of the assessment to be made has been reiterated again by this court in its decision in CG (Jamaica) v Secretary of State for the Home Department [2015] EWCA Civ 194, at [34]-[41] per Laws LJ in the lead judgment on the appeal.

In the present case, the deputy judge should have addressed the question whether the Secretary of State could rationally make the “rounded assessment” she did, to the effect that Ms Akpan had failed to demonstrate an absence of ties to Nigeria, on the very limited information put before her for that purpose, as explained above. The Secretary of State had to consider the bald assertions of Ms Akpan regarding the absence of family and friends in Nigeria, along with the fact that she had lived in Nigeria until the age of 14 and hence had acquired familiarity with customs there at an age when it was not unreasonable to think she would retain a basic understanding of how to function and get on in that society. In my view, it cannot be said that the Secretary of State’s conclusion that Ms Akpan had failed to demonstrate an absence of relevant “ties” to Nigeria, and hence had failed to show that she was within the scope of the exacting test in paragraph 267ADE(vi), was an irrational one. It was an assessment which the Secretary of State was lawfully entitled to make.

I would add that, although as it happens they are irrelevant on the facts of the case having regard to the way in which Ms Akpan presented her application under paragraph 276ADE(vi), I do not think that reference to the Tribunal decisions in Ms Akpan’s case would have made any difference to this outcome. Once a proper interpretation of that provision is adopted, there were assessments in each of the decisions which were damaging to Ms Akpan’s application, since in both of them the Tribunal judge was not satisfied that Ms Akpan had taken sufficient steps to show that her family in Nigeria really could not be traced. The second Tribunal decision included the assessment that there is no reason to believe that Ms Akpan’s mother, brothers and sister would not still be in the area and able to give support (para. [13]). This is a material factor over and above the very limited matters relied on by the Secretary of State which would have added further justification for the conclusion of the Secretary of State that Ms Akpan could not bring herself within the terms of paragraph 276ADE(vi).

For the reasons given above, I would allow the appeal and, in consequence, dismiss Ms Akpan’s application for judicial review of the Secretary of State’s decision to refuse to grant her leave to remain under the Immigration Rules.

I agree.

I also agree.