OH (Algeria) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lady Justice King,Lord Justice Floyd |
| Judgment Date | 24 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1763 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2018/2706 |
| Date | 24 October 2019 |
[2019] EWCA Civ 1763
Lord Justice Floyd
Lady Justice King
and
Lord Justice Irwin
Case No: C5/2018/2706
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Dawson
HU/27224/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Saad Saeed and Basharat Ali (instructed by Aman Solicitors Advocates) for the Appellant
Rory Dunlop QC (instructed by The Government Legal Department) for the Respondent
Hearing date: 3 October 2019
Approved Judgment
Introduction
This is an appeal against two decisions of the Upper Tribunal, Immigration and Asylum Chamber (“UT”). The first decision, on 15 December 2017, concluded that the decision of the First-tier Tribunal (“FtT”) contained an error of law, quashed that decision and ordered that the decision was to be re-made by the UT. The second decision, of 30 July 2018, dismissed the Appellant's appeal against deportation on the grounds that, as a “foreign criminal” who had been sentenced to more than four years' imprisonment, there were no “very compelling reasons” arising from the Appellant's family life so as to outweigh the public interest in his deportation.
History and Background
The first part of the relevant history was summarised by the Upper Tribunal in the Decision and Reasons of 30 July 2018 as follows:
“3. The claimant is a national of Algeria who has lived continuously in the United Kingdom since 29 September 1995. He had previously entered in July 1988 and left a year later and in May 1991 when he admitted to using a false passport to gain entry. It is not established when he left before his return in 1995. His appeal against an unsuccessful asylum claim was dismissed in May 1998. The claimant successfully applied for leave to remain based on his marriage to HL in January 2000 for which he was granted twelve months' leave to remain in July that year leading to a grant of indefinite leave to remain on 10 July 2003.
4. The claimant has a long history of criminal offending and there was no dispute to the detailed record in the decision refusing the human rights claim as follows:
“25. On 16 March 2015 at Kingston-Upon-Thames Crown Court, you were convicted of assault occasioning actual bodily harm, for which you were sentenced on 18 May 2015 to 12 months imprisonment.
26. You also have previous convictions:
• On 13 December 1988, you appeared before Bow Street Magistrates Court where you were convicted of criminal damage. You were ordered to pay a fine of £30, costs of £10 and pay compensation of £50.
• On 10 October 1996, at Marlborough Street Magistrates Court, you were convicted of failing to provide a specimen for analysis. You were disqualified from driving for 15 months, and ordered to pay a fine of £300 and costs of £30.
• You appeared before Bicester Magistrates Court on 11 October 1996, where you were convicted of driving a motor vehicle with excess alcohol, driving without due care and attention and failing to stop after an accident. In total you were ordered to pay fines of £440, disqualified from driving for 12 months, driving licence endorsed with a total of 10 penalty points and costs of £40.
• On 6 May 1998, at Richmond-Upon-Thames Magistrates Court, you were convicted of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence and common assault. You were ordered to pay a total of £160 in fines, £60 costs and £50 compensation.
• On 18 May 1998, at West London Magistrates Court, you were convicted of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence. You received a conditional discharge of 12 months and fined £30.
• At Richmond-Upon-Thames Magistrates Court, you were convicted on 26 August 1998, of destroy or damage property at a value unknown, and two counts of assault on police. You received 1 month imprisonment to run concurrent, and a fine of £150.
• On 25 February 2000, at Isleworth Crown Court, you were convicted of two counts of assault occasioning actual bodily harm and two counts of common assault. You received a total of 8 months imprisonment.
• On 26 February 2002, at Richmond-Upon-Thames Magistrates Court, you were convicted of destroy or damage property and using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence. You were ordered to take part in a community rehabilitation order for 18 months, a community punishment order of 120 hours, pay costs of £55 and compensation of £412.70.
• On 14 June 2002, at West London Magistrates Court, you were convicted of using disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress. You were given a £100 fine.
• On 12 September 2002, you were convicted at East Dorset Magistrates Court of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence, two counts of assault a constable, indecent assault on female 16 or over and battery. You received a total of 6 months imprisonment.
• On 28 November 2003, at Richmond-Upon-Thames Magistrates Court, you were convicted of common assault and using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence. You were sentence to 5 months imprisonment.
• On 28 January 2004 at Kingston-Upon-Thames Crown Court, you were convicted of causing grievous bodily harm with intent to do grievous bodily harm for which you were sentenced to 8 years' imprisonment.””
Following the 2004 conviction, the Appellant was served with Notice of Intention to make a Deportation Order. He appealed. His appeal was dismissed in July 2007. His attempts at further appeal and judicial review failed and he was served with a deportation order of 24 June 2008. Further representations were made but the Secretary of State refused to revoke the Deportation Order on 30 April 2009. The Appellant appealed that decision unsuccessfully to the FtT. Following refusal of permission to appeal, but a successful judicial review of the refusal, the Upper Tribunal dismissed the ensuing appeal on 20 April 2010. Permission to appeal that decision to the Court of Appeal was granted on 5 October 2010, following which the matter was remitted to the Upper Tribunal. On 19 September 2011, the Upper Tribunal allowed the Appellant's appeal.
From that point, the Appellant was given successive grants of discretionary leave to remain, the last of which expired on 25 May 2014. Before that expiry, the Appellant applied for further leave to remain. Whilst the Secretary of State was considering that application, the Appellant was further convicted of assault occasioning actual bodily harm. That offence took place on 11 December 2014 and the conviction was on 16 May 2015. The assault was an attack on the Appellant's eldest child, a daughter. It was this conviction which triggered the decision currently appealed.
The Appellant's family circumstances are relevant. The Appellant married his wife, a British citizen, on 8 April 1998. They have five children. In the course of the FtT's judgment, findings were made which I now summarise and are unchallenged. The eldest child (“Child A”) is a young adult and is in good health. The second child (“Child B”) is a daughter, now 17. She has hearing problems and has suffered from anxiety, but is otherwise healthy. The third child (“Child C”), now 8 years old, has had an episode of Bell's Palsy without long-term effects and is otherwise healthy. The fourth child (“Child D”), a boy now aged 6, has been identified as “having a number of autistic spectrum disorder traits”. He experiences behavioural difficulties and can be aggressive and difficult to handle. He is also epileptic, experiencing absence seizures and is on medication for that condition. He has a chromosomal disorder which is linked to his behavioural problems and may in due course cause learning difficulties. He tends to be very active and to be a poor sleeper. The youngest child (“Child E”), a daughter aged 5, has also been diagnosed as having a chromosomal disorder. She has a condition known as PICA, meaning that she will eat inappropriate things. The FtT found that she has to be “constantly watched to ensure that she does not eat anything dangerous”. She can be aggressive and her chromosomal disorder may be linked to autism.
The Appellant has not lived continuously with his family since his marriage. He first came to the United Kingdom on 4 July 1988, some three months after his marriage. He lived in the UK until July 1989, when he returned to Algeria. He next came to the United Kingdom on 1 May 1991 but was removed to Algeria later that year. He then returned to the UK on 29 September 1995. As indicated earlier, he served sentences of imprisonment in 2000, 2002 and 2003, followed by the long period of incarceration after his conviction in January 2004. In 2012, he spent three months away from the family on a visit to Algeria, with a similar three months period away after the birth of the youngest child in 2014. After his arrest for the assault on his daughter (Child A) in December 2014, he spent five and a half months in prison on remand, prior to sentencing on 18 May 2015. According to the unchallenged findings of the Upper Tribunal:
“[The Appellant] was released in June 2016, thereafter he lived with his brother. Between August 2016 and February 2017, he lived alone at an address provided by the probation service. [The Appellant's wife] and the children visited Algeria in the summer of 2017 for five weeks.”
Following the assault on Child A, the Social Services Department applied for and obtained a Non-Molestation Order. Supervised...
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