Upper Tribunal (Immigration and asylum chamber), 2017-12-19, DA/01376/2014
| Jurisdiction | UK Non-devolved |
| Date | 19 December 2017 |
| Published date | 09 January 2018 |
| Hearing Date | 26 September 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/01376/2014 |
Appeal Number: DA/01376/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01376/2014
THE IMMIGRATION ACTS
|
Heard at Birmingham Employment Tribunal |
Decision & Reasons Promulgated |
|
On 26 September 2017 |
On 19 December 2017 |
|
|
|
Before
UPPER TRIBUNAL JUDGE HANSON
Between
DF
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Khubber instructed by Turpin & Miller Solicitors
For the Respondent: Mrs Aboni Senior Home Office Presenting Officer
DECISION AND REASONS
1. The Upper Tribunal found an error of law in the decision of the First-tier Tribunal and set that decision aside with directions in a document dated 8 June 2017, a copy of which appears at Annex A of this decision.
Background
2. A number of findings of the First-tier Tribunal are preserved which form the starting point for this decision.
3. In relation to the appellant’s immigration history; it is not disputed the appellant is a national of Jamaica who was granted indefinite leave to remain in the United Kingdom on 14 July 2003. It is not disputed that the appellant is subject to an order for his deportation from the United Kingdom as a result of the sentence imposed on 31 October 2012 referred to below.
4. It is not disputed that the appellant has committed criminal offences in the United Kingdom as follows:
i. On 7 July 2007 the appellant was bound over for 12 months and fined following a conviction for breach of the peace.
ii. On 30 March 2010 the appellant was convicted of criminal damage, ordered to pay costs and compensation and made subject to a two-year restraining order - protection from harassment order.
iii. On 31 October 2012 the appellant was sentenced to 4 years imprisonment the being knowingly concerned in fraudulently evading prohibition/restriction on the importation of a controlled Class A drug. The appellant acted as a drugs mule carrying a case with 850g of cocaine to the UK from Jamaica.
5. In relation to procedural aspects; the Secretary of States certified the appellants asylum claim pursuant to section 72 of the 2002 Act, in relation to which the First-tier Judge made the following preserved findings:
14. The first issue that I must deal with is whether this Appellant has rebutted the presumption that arises under Section 72. The Appellant was sentenced to 4 years imprisonment. The offence was that of drug smuggling and as noted by the sentencing judge the terrible harm caused by drugs is only too clear from the Appellant’s own family experiences and the tragic consequences of [Ms N] addiction for her children. The gravity of his offence must not be underestimated. Although he accepted full responsibility for the offence when he was caught, he has in my view sought to make excuses for himself by stating variously that he was depressed, stressed due to relationship difficulties, having money problems, being threatened and that his family was being threatened. He had previously had the protection of the law and the Courts in the UK when his assailants in the stabbing incident were given a lengthy prison term. I do not find it credible that he would not seek the protection of the authorities in the UK if his family including [Ms N] the children, were being threatened as he claims.
15. I have taken the reasons for the attaching of the certificate fully into account. Despite the assessment of risk of reoffending as being low the Respondent states that the risk could escalate if the Appellant is faced with financial problems. The Respondent points out that the Appellant travelled to Jamaica on a number of occasions. The Appellant has never explained how he managed to pay for those trips given that he was unemployed for long periods of time and the household income largely consisted of disability benefits (for Ms N) and child benefits. It is also pointed out that the Appellant had family members in the UK and that their influence did not prevent him from offending. Nor did the fact that he had dependent children and a vulnerable partner.
16. I note that in his report dated 29 October 2016 Dr Basu does not mention financial pressure as a risk factor for the Appellant. He refers to lack of employment but apart from saying that the Appellant has the temperament to engage in employment and has training and work experience that will assist him in getting it, he merely concludes that “Allowing [DF] to engage in meaningful employment will help him in numerous ways..” I take this to be a reference to the fact that the Appellant is not currently allowed to work in the UK.
17. Dr Basu assessed the risk of reoffending over the next two years as low. He does refer to social networks as a risk factor and notes that the Appellant is relatively socially isolated at the current time. He says that this “may” improve if the Appellant is allowed to work. Dr Basu says that the Appellant’s history suggests that he has found himself around those who have exerted a negative influence on him either through drug misuse or violence and states “in future he should be mindful of this and ensure that it does not surround himself with potentially negative influences that might increase his chance of reoffending”.
18. The Appellant has allowed himself to lose control of his temper when his ex-partner stole his Criminal injuries compensation monies and he attended at her property and caused criminal damage, breaking a window there. He has been both the victim and the perpetrator of domestic violence.
19. Having considered the evidence before me I am satisfied that despite the low risk of reoffending, the potential harm involved in future offending by this Appellant is not low because of the risk factors that have been identified above. I am not satisfied that the s72 presumption has been rebutted by the Appellant. But even if I am wrong on this I do not, having considered all of the evidence before me, find the Appellant credible in his claim that he is at real risk of persecution, being killed or subjected to inhuman or degrading treatment on his return to Jamaica from gang members.
6. Section 72 of the Nationality, Immigration and Asylum Act 2002 states that a person shall be presumed to have been convicted by final judgement of a particularly serious crime and constitute a danger to the community the UK if he is convicted in the UK of an offence and sentenced to a period of imprisonment of at least two years. It is not disputed the appellant received a four-year prison sentence for a particularly serious crime, drug importation, and has been found to constitute a danger to the community of the UK.
7. In relation to family composition; The First-tier Tribunal found the appellant entered into a relationship with Ms N in 2008. Ms N has given birth to two children, the eldest of which it was found has ongoing contact with her natural father and does not have a father/child relationship with the Appellant. The second child C is described as a middle child born only weeks before the relationship between the appellant and Ms N started. The appellant is not the child’s natural father but is said to have taken on the role of father from the time the child was only a few weeks old. The appellant and Ms N had a child of their own, B, born on 5 February 2011.
8. It is not disputed that as a result of issues that arose following the appellant’s release from prison, when the couple resumed their relationship, Social Services had to intervene in the family in November 2013 as a result of which the children were placed with their maternal grandmother and have remained in her care since in a placement that is now permanent since. The First-tier Tribunal noted that the intervention was triggered by concerns about emotional neglect after it became apparent that Ms N was using Class A drugs. It is also recorded that she has no contact with the children at the present time and is not in contact with the Appellant or Social Services although the First-tier Tribunal were advised that Ms N was living with a relative.
9. It was found the appellant is not in a relationship with Ms N and is living with members of his extended family in the UK and that as a result of a contact application the appellant currently has contact on an unsupervised bases once a week with no concerns for the welfare of the children arising as a result of this contact.
The evidence and submissions
10. A supplementary bundle had been prepared for the purposes of the hearing before the Upper Tribunal. Clear directions had been made for the filing of such documents no later than 4 PM 16 June 2017 in relation to the bundle and 14 July 2017 in relation to the skeleton argument. The appellant’s representative comprehensively failed to meet these deadlines although the evidence was...
To continue reading
Request your trial