Farquharson (removal – proof of conduct)
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice Blake,THE PRESIDENT, THE HON MR JUSTICE BLAKE |
| Judgment Date | 26 February 2013 |
| Neutral Citation | [2013] UKUT 146 (IAC) |
| Date | 26 February 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 146 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, THE HON Mr Justice Blake
UPPER TRIBUNAL JUDGE Clive Lane
SIR JEFFREY James KBE CMG
For the Appellant: Howard Cheng of Duncan Lewis, Solicitors
For the Respondent: Mr K. Norton, Senior Home Office Presenting Officer
Farquharson (removal — proof of conduct)
(1) Where the respondent relies on allegations of conduct in proceedings for removal, the same principles apply as to proof of conduct and the assessment of risk to the public, as in deportation cases: Bah [2012] UKUT 196 (IAC) etc applicable.
(2) A criminal charge that has not resulted in a conviction is not a criminal record; but the acts that led to the charge may be established as conduct.
(3) If the respondent seeks to establish the conduct by reference to the contents of police CRIS reports, the relevant documents should be produced, rather than a bare witness statement referring to them.
(4) The material relied on must be supplied to the appellant in good time to prepare for the appeal.
(5) The judge has a duty to ensure a fair hearing is obtained by affording the appellant sufficient time to study the documents and respond.
(6) Where the appellant is in detention and faces a serious allegation of conduct, it is in the interests of justice that legal aid is made available.
Order: the names and identities of any of the complainants referred to below are not to be disclosed in connection with any report of these proceedings
On 22 January 2013 a differently constituted panel of the Upper Tribunal decided to adjourn this appeal from a decision of First-tier Tribunal Judge Clayton in order for the appellant to have a further opportunity to obtain legal representation, consider the documentary evidence provided by the respondent and submit any evidence and witness statements on which he intended to rely. We refer to the Ruling and Directions on 23 January 2013 (attached as Annex A) for the history of this appeal and the error of law relied on.
The Tribunal indicated (at [20] (a)) that it was minded to conclude that Judge Clayton's decision of 22 March 2012 should be set aside because the appellant had not had a fair opportunity to respond to the case of the Secretary of State. A strict time table was set for filing further evidence and it was indicated that a further adjournment of this appeal was highly improbable.
At the hearing on 26 February the appellant was represented by new solicitors. We are indebted to them for preparing the case within a constrained time scale. It is extremely important that claimants who are detained and facing removal from the United Kingdom are able to access legal representation to present an Article 8 appeal, particularly, as in the present case, where they face serious allegations relating to their conduct in the United Kingdom. In compliance with the directions previously issued, the appellant produced a witness statement from himself, his mother, step-father and two half brothers, to which we will refer in due course.
Mr Cheng also produced a short skeleton argument, most of which was directed to whether there had been an error of law. We clarified with Mr. Norton that no submission was to be made to us that the First-tier hearing was fair and accordingly as envisaged in the previous directions we found that the refusal to adjourn the hearing in February 2012 was unfair and a material error of law. As further envisaged in the earlier directions, the Tribunal indicated that it would re-make the decision on appeal for itself in the light of the evidence that had now been tendered before us.
At the outset of the appeal, Mr. Cheng sought a further adjournment in order to obtain medical reports on the appellant's mother. We refused the application but received in evidence a helpful letter from her GP dated 19 December 2011 outlining her extensive medical history from 1990.
For the Secretary of State, Mr Norton relied on a 337 page bundle of edited CRIS reports (Crime Recording Information System) that had not been tendered before Judge Clayton and the witness statement of DC Mahmood compiled from those reports that had been served on the appellant on the same day of the hearing below.
Mr Norton explained that the Secretary of State abandoned any reliance on allegations contained in the decision letter of 28 October 2011 paragraph 7 under the sub heading “Reports of Assaults” other than the first entry, relating to the appellant's arrest on suspicion of having committed assault occasioning grievous bodily harm on his then partner in 2004. The allegations abandoned were not supported by information in DC Mahmood's statement or entries in the CRIS reports. Mr Norton also abandoned the allegation at page one of DC Mahmood's statement that “intelligence indicates FARQUHARSON is a regular class A drug user” as no supporting data from intelligence logs had been provided. We entirely dismiss those matters from our consideration. Further Mr Norton submitted that the six incidents supported by documentary evidence on which reliance was placed by the Secretary of State were not adduced as evidence of “previous criminal record” as the decision letter suggested but rather as material evidence under limb (iv) of rule 395 C “Personal history, including character, conduct and employment record”. DC Mahmood was tendered for cross examination.
The appellant supplemented his recent statement and was cross-examined; the appellant's mother and step brother Stephen Bennett were tendered for examination. The material parts of their evidence will be considered further below. Mr Cheng then applied to call a witness, Yvonne Griffiths, who had not made a statement in accordance with the directions we issued. Having seen a letter from her, identifying what she could contribute to the appeal, we refused the application. She was the appellant's aunt. She had no new information to contribute to the Article 8 appeal. In her letter she referred to the murder of her son in Jamaica after his removal from the United Kingdom. This event was also mentioned by other witnesses. It has never formed the basis of a claim by the appellant to remain, and could not credibly do so in light of the fact that Jamaica is considered a safe country of origin (Nationality, Immigration and Asylum Act 2002 s. 94(4)(n)), albeit prone to violence in a number of its urban areas.
With these preliminary observations, we will set out our determination in the following way:
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a. The evidence relating to private and family life
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b. The evidence relating to the six incidents.
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c. Application of the facts to the Immigration Rules and the Article 8 issues
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d. Conclusions.
The appellant is a national of Jamaica. His date of birth has now been clarified as being 7 July 1966 as opposed to 7 November or any other variations that have appeared from time to time in the documentation before us. His mother was aged 15 at the time she gave birth to him. She raised him as a single parent in Jamaica until she came to the United Kingdom in about 1984 when the appellant would have been about 18. The appellant lived with his grandmother in her property in Jamaica until she came to the United Kingdom in 1986. At some time thereafter, we were informed that the family property was sold.
The appellant's mother married Kenneth Bennett (born in Jamaica, February 1941) and is now known as Joanne Bennett. She has had two children by Mr Bennett: Stephen born 1986 and Jonathan born 1987. They are all British nationals by birth or application. This family unit live together at [address] in London SW4, although Stephen Bennett told us that having completed his university education he is thinking of moving out of the family home shortly as is his younger brother.
Other family members of the appellant in the United Kingdom include his sisters, who are in employment and live in households of their own and who have not made statements; his great uncle, who is very elderly, frail and lives alone in a flat in Battersea; and two aunts, including Yvonne Griffiths whose son was murdered in Jamaica in 2007. His grandmother lived in separate accommodation in the United Kingdom until her death in April 2012.
Little is known about the appellant's life in Jamaica from 1986 when his grandmother came to the United Kingdom and November 1999 when he came aged 33. His statement makes no mention of where he was living and what he was doing, other than to confirm that he has a single conviction of possession of cannabis for which he was fined in 1994. Mrs Bennett believed her son was living with friends after the family home was sold. Jonathan Bennett's witness statement refers to “Lincoln has barely much family in Jamaica”. Mrs Bennett was not able to help about precisely what wider family there was in Jamaica, although she acknowledged that there were ‘lots of Hutchinsons’, which we understand to be her maiden name, and the broader family of which she formed a part. She does not maintain relations with the appellant's father. She last visited Jamaica in 2011 to take her elderly mother back to her homeland for a final visit before her death.
The appellant confirmed that his account given to Judge Clayton of his movements after his arrival in the United Kingdom was accurate. From this it appears that after arrival in the United Kingdom as a visitor in November 1999, he lived with his mother and the rest of her family at the address mentioned in [11] above for eight months before moving out to start college in East London. He was given leave to remain to study until October 2002 but did not complete his...
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