Immigration Case Update: R (on the application of Apata) v The Secretary of State for the Home Department [2015] EWHC 888 (Admin

Read the full judgment here.

This case has attracted significant media interest as the C is a LGBT rights campaigner who is challenging her own removal to Nigeria by way of JR. Her challenge against the decision to remove was made by way of JR on the basis of human rights (Articles 2, 3 and 8) and the refusal to accept new evidence of risk as a fresh claim.  The FtT dismissed the C’s appeal, making significant adverse findings on her credibility. The C sought to appeal to the UT but withdrew her appeal to the UT claiming she wanted to leave the UK.

At the JR hearing, the SSHD contended the C had been playing the system for 10 years by her repeated and different applications: “she has made false asylum claims, pursued an appeal claiming she was in a subsisting relationship with an EEA national when she was not. She overstayed, worked illegally, studied illegally”. Considering the expert evidence the following conclusions were drawn: “having reviewed the medical evidence available to him [Dr McKay] and notwithstanding the apparent suicide attempt, “I would consider the Claimant’s psychiatric presentation as simulation.” Dr McKay notes that even in the incomplete material that he has seen, two other consultant psychiatrics had doubted the Claimant's symptoms”.

Additional evidence was presented to the Administrative Court, which included DVD’s of the C engaging in lesbian activity.

John Bowers QC sitting as a Deputy Judge of the High Court found:

i. The findings of the FtT are binding as to matters existing at the time of the finding;
ii. Although the C produced evidence of her lesbian sexual orientation, she did have heterosexual relationships, marriages to men and two children. It was contended by the SSHD that “a particular social group” ("PSG") is defined as a characteristic incapable of being changed so changing one’s sexual orientation did not fall within the Convention definition of a PSG. The Court rejected this finding that 'changes' in sexuality did not preclude the C from belonging to a PSG for the purposes of the Convention. The extent of such homosexual experience will weigh, however, in the determination as to whether a person is genuinely a member of a PSG;
iii. The Court accepted the contention by the SSHD that C has adjusted her conduct so as to adopt other customs, dress and mores of a PSG;
iv. There was nothing irrational, perverse, or irrational in the decision to remove the C to Nigeria;
v. If she returned to Nigeria, the C will not have lesbian relations nor be perceived as a lesbian and her willingness to return to Nigeria when she was said to be a lesbian demonstrates she does not possess a well-founded fear;
vi. Her fears in relation to her campaigning work were not properly pleaded in the grounds but there is insufficient evidence to suggest she would suffer persecution on this ground.
vii. The Article 8 claim was not made out; and
viii. Although the fresh claim ground was not been properly pleaded, it was not been made out in any event, as the substance of the material has already been considered by the SSHD. When taken together with the other material, the material does not create a realistic prospect of success.

 

 


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