Ya (algeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty |
| Judgment Date | 20 March 2013 |
| Neutral Citation | [2013] EWCA Civ 448 |
| Docket Number | Case No: C5/2012/2757 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 March 2013 |
[2013] EWCA Civ 448
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION & ASYLUM CHAMBER
[Appeal Number: AA/10654/2011]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Case No: C5/2012/2757
Ms Cecilia Hulse (instructed by Lamb Chambers) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
This is a second appeal advanced by YA, an Algerian citizen. Leveson LJ on the papers rejected his application on 22 January 2013. Born on 7 July 1970, YA came to the United Kingdom in August 1995, having fled Algeria during its civil war. He was a draft evader. He suggests that the Upper Tribunal fell into error when on 18 July 2012 it rejected his appeal from the First-tier Tribunal finding of October 2011 upholding the decision of the Secretary of State for the Home Department. To succeed in a second appeal, he has high hurdles to clear. He must show that there is in issue an important point of principle or practice, or that there is some other compelling reason. He suggests that the decisions of each tribunal are in breach of this country's obligations under the European Union Treaty, which he argues they engage. As to compelling reasons, he submits that the severity and consequences of the interference with his Article 8 rights required careful assessment, and that such assessment as there was was inadequate. He seeks to rely on Razgar.
He points to his peaceful life here for some 17 years. His submission is that to remove him would be to destroy that established private life, and attempts to answer the judicial finding that any work he has here done was done absent the right to work by relying on his good work record. If it were taken into account, and he submits it was not, then it was given insufficient weight. It is worth noting that on arrival in the United Kingdom, he did not seek asylum. He had been conscripted, and avoiding military service does not amount to a Convention reason. His assertion was that he feared on return he would be the target for rebels, either as a conscript and/or by the military authorities as an evader. He told the tribunals that his brother and sister-in-law are British citizens, and he claims a close relationship with them, despite they and he living hundreds of miles apart. He works in the catering industry, and claims strong community ties, in contrast to his diminished ties with his homeland. He argues that the First-tier Tribunal failed to consider all relevant matters, and to indicate what it had taken into account, and what weight it had attached to any identified matter. As to the Upper Tribunal, he suggests that it fell into error in finding that even had the First-tier Tribunal failed to clarify that it had taken account of matters relevant and had failed to give reasons, nevertheless it must have had in mind Razgar.
Enlarging those arguments orally Ms Hulse turned first to the acceptance by the First-tier Tribunal that the appellant has a private life. At paragraph 23 the Immigration Judge recorded:
"The appellant came into the United Kingdom unlawfully and has remained here unlawfully, and worked unlawfully for a considerable length of time, namely 16 years."
That, she points out, is the sum of his record of matters taken into consideration in respect of Razgar Stage 5; that is, the proportionality assessment. The Immigration Judge went on to find little weight to be given to the disturbance in the appellant's private life, that is the aspect of Article 8 on which he relied, and reminded himself that it was accepted on his behalf that there was no family...
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