SC (Paras A398–399D: ‘Foreign Criminal’: Procedure) Albania
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,O'Callaghan UTJ |
| Judgment Date | 27 April 2020 |
| Neutral Citation | [2020] UKUT 187 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 187 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and O'Callaghan UTJ
Ms S Naik QC and Ms H Foot instructed by Archer Maher Solicitors, for the Claimant;
Mr M Gullick instructed by the Government Legal Department, for the Secretary of State.
Akinvemi v Secretary of State for the Home Department [2019] EWCA Civ 2098; [2020] I WLR 1843; [2020] INLR 175
Andell (foreign criminal – para 398) [2018] UKUT 198 (IAC)
Commissioners for Her Majesty's Revenue and Customs v Smart Price Midlands Limited; Commissioners for Her Majesty's Revenue and Customs v Gardner-Shaw (UK) Limited and Others[2019] EWCA Civ 841; [2019] 1 WLR 5070
Dean v Lord Advocate [2015] HCJAC 52; 2015 SLT 419; 2015 SCL 741
Entry Clearance Officer, United States of America v MW (United States of America) and Others [2016] EWCA Civ 1273; [2017] 1 WLR 1556
Foster-Taylor v Prosecutor General's Office of Florence [2019] EWHC 2938 (Admin)
Gardner-Shaw (UK) Limited and Others v Commissioners for Her Majesty's Revenue and Customs [2018] UKUT 419 (TCC)
Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799; [2017] 3 All ER 20; [2017] Imm AR 484; [2017] INLR 109
OLO and Others (para 398 – ‘foreign criminal’) [2016] UKUT 56 (IAC)
R (on the application of Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841
Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213
European Convention on Human Rights, Articles 6 & 8 and Article 4, paragraph 2 of Protocal No. 7
Extradition Act 2003, section 87(1)
Immigration Rules HC 395 (as amended), paragraphs A398–399D and sections GEN.3.2(2) & S-EC.1.4 of Appendix FM
Nationality, Immigration and Asylum Act 2002, sections 117A-D
Human rights — Article 8 of the ECHR — family and private life — public interest — proportionality — procedure and process — deportation — paragraphs A398 – 399D of the Immigration Rules — ‘foreign criminal’ — criminal convictions outside the United Kingdom — OLO[2016] UKUT 56 (IAC) affirmed — Andell[2018] UKUT 198 (IAC) not followed
The Claimant, a citizen of Albania, was convicted of murder by the District Court in Tropoje, Albania and sentenced to 15 years' imprisonment in October 1994. In 1997 he left prison during a period of civil unrest in Albania and entered the United Kingdom unlawfully. In 1997 and 1998 he applied for asylum using a false identity and falsely claiming he was from Kosovo. The applications were refused but he remained in the United Kingdom unlawfully. Around that time, he was convicted in absentia in Albania of an offence of armed robbery, for which he was sentenced to ten years' imprisonment. The Claimant's wife and young son arrived in the United Kingdom in December 1998, with the assistance of people smugglers. In 2004 the Claimant applied for indefinite leave to remain, again using the false identity and nationality. He included his wife and son on the application. The Secretary of State for the Home Department granted the application in 2005.
In 2006, the Republic of Albania requested the extradition of the Claimant, in his true identity and nationality. The Claimant challenged that decision. The Divisional Court considered assurances given by the Albanian Ministry of Justice and concluded that the Claimant would not, if extradited, be required to serve more than his sentence in respect of the murder conviction. Following the conclusion of the extradition proceedings, the Claimant made a further application for asylum, once again using the false identity and nationality. The application was refused and his appeal was dismissed by the Asylum and Immigration Tribunal (“AIT”) in July 2009. He was extradited to Albania in December 2009 to serve the remainder of his sentence for murder.
The Supreme Court of Albania set aside the Claimant's conviction for armed robbery in 2010 and he was released from prison in 2011. He re-entered the United Kingdom clandestinely by lorry in 2012. In 2014 the Claimant's wife and eldest son applied for citizenship. The Secretary of State refused the wife's application but allowed the application of her son. In December 2015, the Claimant applied for indefinite leave to remain, this time using his true identity and nationality. The Secretary of State decided to deport the Claimant in February 2017. The Claimant appealed on international protection grounds and under Article 8 of the ECHR based on his private and family life with his wife and six British citizen children.
The First-tier Tribunal (“FtT”) dismissed the appeal. Despite noting that the Claimant said he had killed his victim in self-defence, the FtT was not satisfied that his conviction for murder was a miscarriage of justice. The FtT also concluded that the Claimant's assertion that he would be at risk of serious harm as a result of a blood feud, if returned to Albania, was not credible. Regarding the Article 8 claim, the FtT found that there were no very compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules HC 395 (as amended).
On appeal, a Judge of the Upper Tribunal (“UT”) dismissed the Claimant's appeal regarding the protection claim but allowed it with respect to Article 8. She set aside that part of the decision and directed that the matter be re-made in the UT. At the hearing in June 2019, the Claimant submitted that he had acted in self-defence and was unrepresented when he pleaded guilty to the murder in Albania. Accordingly, he argued it was necessary for the UT to consider the safety of the Albanian murder conviction and to adjourn the case to obtain expert evidence on the Albanian justice system at the time of the original conviction. The matter was adjourned and came before the instant Presidential panel.
The Claimant adduced three reports in support of his case. The first was an “Expert Opinion” from an Albanian attorney who opined that in practice a fair trial in Albania was “illusory”, automatic legal representation was not routine and ill-treatment to produce a confession and coercion to plead guilty was prevalent. The second, a psychiatric report, stated that the Claimant was suffering from post-traumatic stress disorder and mixed anxiety and depressive disorder which were related specifically to him being tortured during interrogation by police and the attack by the murder victim. The third report, by an anthropologist and country expert, concluded that the Claimant's account of his murder trial was plausible and that, if returned, his life “would be placed at great risk” from blood feud aggressors, criminals and trafficking gangs. The UT also had before it a record of the District Court of Tropoje's decision dated 26 October 1994, with certified English translation. That document recorded the names of three judges present at the Claimant's murder trial and the presence of the Claimant's defence lawyer. It also recorded that the Claimant stabbed the victim in an unprovoked attack. The document had been in the possession of the Claimant's current solicitors since they were instructed in 2017 and had been in the Secretary of State's possession, in connection with the international protection claim, since 2009. The three reports and the District Court of Tropoje decision were filed four days after the expiry of the deadline set by the UT in its directions. On 9 December 2019, the Claimant sought to adduce two further reports: one by a doctor concerning scars on the Claimant's body and a second ‘supplementary report’ by the Albanian attorney addressing the District Court of Tropoje decision. The Secretary of State resisted the admission of the two further reports.
Held, dismissing the appeal:
(1) The “scarring report” had been filed and served some seven days before the hearing. Although the report had been filed in breach of the directions and notwithstanding the objections of the Secretary of State, it would be appropriate for the report to be admitted. The ‘supplementary report’ by the Albanian attorney addressing the District Court of Tropoje decision was supplied to the UT only at the hearing on 9 December 2019. The Secretary of State's representative had not seen it beforehand. The alleged need for this report stemmed from significant failures on the part of the Claimant and his advisers, who had been in possession of the document for a great deal of time. To admit this egregiously late document would not be in the interests of the overriding objective. On the contrary, it would send entirely the wrong message to those who came before the UT, whether as appellants or respondents, that directions regarding service counted for little or nothing. Accordingly, admission of the ‘supplementary report’ was refused at the 9 December hearing. The Claimant's request to re-visit that ruling at an adjourned hearing on 31 January 2020 was also refused. In the absence of a material change in circumstances or prior misleading of the Tribunal, it would be a very rare case in which the important considerations of finality and proper use of the appeals procedure were displaced in favour of revisiting and varying or revoking an interlocutory order: Gardner-Shaw (UK) Limited and Others v Commissioners for Her Majesty's Revenue and Customs[2018] UKUT 419 (TCC) followed (paras 36 – 41).
(2) Paragraph A398 of the Immigration Rules HC 395 (as amended) governed each of the rules in Part 14 that followed it. The expression ‘foreign criminal’ in paragraph A398 was to be construed by reference to the definition of that expression in section 117D of the Nationality. Immigration and Asylum Act 2002: OLO and Others (para 398 — ‘foreign criminal’)[2016] UKUT 56 (IAC) affirmed; Andell (foreign criminal — para 398)[2018] UKUT 198 (IAC) not...
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