Daniel Andell v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Coker |
| Judgment Date | 12 March 2018 |
| Neutral Citation | [2018] UKUT 198 (IAC) |
| Date | 12 March 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2018] UKUT 00198 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Coker
and
For Mr Andell: Mr D Sellwood instructed by Duncan Lewis & Co
For the SSHD: Mr P Deller, Senior Home Office Presenting Officer
Andell (foreign criminal — para 398)
Paragraph 398 of the Rules includes not only foreign criminals as defined in the 2002 Act and the 2007 Act but also other individuals who in the view of the Secretary of State, are liable to deportation because of their criminality and/or their offending behaviour.
The issue in this case stems, in part, from the definition of “a foreign criminal” in the UK Borders Act 2007 (“2007 Act”), the definition of that same phrase in the Nationality, Immigration and Asylum Act 2002 (“2002 Act”) and the use of the words ‘foreign criminal’ in the Immigration Rules (“the Rules”). In both the 2007 Act and the 2002 Act a foreign criminal is defined as a person who has been convicted and sentenced in the UK. In the Rules, there is no requirement the criminal offence(s) should be limited to UK convictions only.
Mr Andell is a citizen of Trinidad and Tobago, born 31 st May 1980.
He arrived in the UK on 9 th November 2015. He came to the attention of the UK authorities on 14 th December 2015 when he was arrested on suspicion of having false documents. On 29 th December 2015, he was served with illegal entry paperwork dated 24 th December 2015. On 5 th January 2016, he was convicted after a plea of guilty to “possess/control identity documents with intent” and sentenced to 10 months' imprisonment with a £100 victim surcharge.
On 3 rd March 2016 whilst in detention he informed the SSHD he wished to claim asylum; he was screened on 22 nd March 2016 and underwent a substantive interview on 31 st March 2016. On 3 rd June 2016 Mr Andell was served with notice of liability to deportation dated 26 th May 2016 and a s120 notice. The SSHD received an undated letter with enclosures from Mr Andell on 30 th June 2016. The SSHD refused Mr Andell's protection and human rights claim for reasons set out in a letter dated 11 th August 2016 and these proceedings are his appeal against that decision.
His appeal against refusal of his protection and human rights claim was heard in the First-tier Tribunal on 5 th January 2017 and, for reasons set out in the decision promulgated on 16 th January 2017, First-tier Tribunal judge Raikes dismissed his appeal on asylum/protection grounds and on human rights grounds.
In Trinidad and Tobago, Mr Andell was sentenced to 36 months hard labour in 2012 following a conviction for ‘receiving’. He has received fines for disturbing the peace by fighting and making a false report in 1998. According to the Trinidad and Tobago Police Service Criminal Records Office document, Mr Andell had been charged with other offences for which he was ‘discharged’.
There remain a number of pending charges against him in Trinidad and Tobago including ‘buggery’ (11 October 2011); kidnapping ransom (10 October 2008); buggery (10 October 2008) grievous sexual assault (10 October 2008) Disorderly behaviour (9 March 2006); larceny (29 November 2000). It is not clear why some of those charges were not dealt with by the criminal courts at the same time as other charges were heard and resulted either in conviction or discharge. It is important to bear in mind that these are not convictions. They have not, correctly, been taken into account by the SSHD in determining whether Mr Andell is a foreign criminal; they are not relevant to the question of whether he is a foreign criminal.
On 26 th May 2016, the SSHD decided to make a deportation order against Mr Andell under s5(1) Immigration Act 1971. The reasons for the decision to deport are set out in the decision dated 26 th May 2016 (no appeal). This states, where relevant:
Reasons for deportation
On 21 September 2012 at Port of Spain Magistrate Court in Trinidad & Tobago, you were convicted of receiving, for which you were sentenced to 3 years imprisonment.
You also have 1 conviction for 2 offences in Trinidad & Tobago on 13 August 1998 and 1 conviction for 1 offence in the UK on 05 January 2016. As a result of your criminality, your deportation is considered to be conducive to the public good and as such you are liable to deportation by virtue of s3(5)(a) of the Immigration Act 1971.
Paragraph 396 of the Immigration Rules (as amended) provides that there is a presumption that the public interest requires the deportation of a person who is liable to deportation. Therefore the Secretary of State has decided to make a deportation order against you under s5(1) of the Immigration Act 1971.
In her decision to refuse the protection and human rights claim dated 26 May 2016 (the appeal against which is the subject of these proceedings), the SSHD states:
Reasons for deportation
7. On 5 January 2016 at Luton Crown Court you were convicted of possess/control identify documents with intent and sentenced to 10 months' imprisonment and to pay £100 victim surcharge.
8. In addition to the above conviction received in the UK it is noted that you have previously been convicted of receiving (indictable offence) sec 35(1) in Trinidad & Tobago, in 2012, for which you were sentenced to 36 months' hard labour. You have also received convictions for the offences of disturbing the peace by fighting and making false report in 1998, for which you received fines. In light of these convictions, your continued presence in the UK is not considered to be in the public interest. There are also a number of impending charges against you in your country of origin and a warrant out for your arrest.
….
83. Your deportation is conducive to the public good and in the public interest because you have been convicted of an offence which has caused serious harm/are a persistent offender. This is because you were sentenced in your country of origin for the offence of ‘receiving’ which is considered as a serious harm offence in light of the sentence handed down, namely 36 months hard labour. It is also noted that you have two other previous convictions and a number of pending charges outstanding against you in Trinidad and Tobago (including 2 counts of buggery, kidnapping, grievous sexual assault from 2008) and have received a conviction in the UK almost immediately following your arrival here. Therefore in accordance with paragraph 398 of the Immigration Rules, the public interest requires your deportation unless an exception to deportation applies. The exceptions are set out in paragraphs 399 and 399A Immigration Rules.
The Immigration Rules, in so far as relevant to this appeal, read as follows:
Deportation and Article 8
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
There was no challenge to the conclusion of the First-tier Tribunal judge that Mr Andell did not meet Exception 1 or 2 in either the Rules or s117C 2002 Act – he has no wife or partner or qualifying child.
Mr Andell was given permission to appeal the decision of the First-tier Tribunal on 4 grounds:
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(a) It was arguable the judge had failed to have adequate regard to a country expert on conditions in prison in Trinidad and Tobago;
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(b) It was arguable the judge had failed to apply the correct standard of proof in the light of past persecution;
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(c) It was arguable the judge had failed to take into account the medical evidence when determining Mr Andell's credibility; and
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(d) It was arguable there were procedural defects in the decision regarding the human rights claim such that the decision was unlawful.
The SSHD was granted permission to appeal on 6 grounds:
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(a) It was arguable there was procedural unfairness in reaching a finding that the appellant was not a foreign criminal as defined by s117D(2) Nationality Immigration and Asylum Act 2002;
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(b) It was arguable the findings relating to persistent offender and/or caused serious harm were obiter and there was no finding that the underlying deportation order was unlawful;
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(c) It was arguable, having allegedly failed to seek the SSHD's views on...
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