Upper Tribunal (Immigration and asylum chamber), 2016-08-26, DA/01738/2014
| Jurisdiction | UK Non-devolved |
| Date | 26 August 2016 |
| Published date | 07 March 2018 |
| Hearing Date | 04 May 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/01738/2014 |
Appeal Number: DA017382014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01738/2014
THE IMMIGRATION ACTS
|
Heard at Stoke |
Decision Promulgated |
|
on 4 May 2016 |
On 26 August 2016 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
VALENTINE MICHAEL JUNIOR HARVERYE
(Anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr McVeety – Senior Home Office Presenting Officer.
For the Respondent: Ms Mair instructed by Paragon Law, Solicitors.
DETERMINATION AND REASONS
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This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Place, dated 3 March 2015, in which the judge allowed Mr Harverye’s appeal against the order for his deportation from the United Kingdom.
Background
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Mr Harverye is a national of Zimbabwe who was born on the 22 April 1971.
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In a previous determination of this Tribunal (DA/00772/2011), Mr Harverye’s background was found by the Upper Tribunal to be as follows:
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Mr Harverye is a citizen of Zimbabwe who was born on the 22nd April 1991. He is of mixed race as are his mother and father. He arrived in the United Kingdom on the 18th November 1998 as the dependant of his mother who had married a British citizen. He was granted Indefinite Leave to remain on 29th January 2001 although an application for naturalisation was refused on the 31st May 2007 as a result of his personal conduct.
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Mr Harverye has a criminal record which shows two offences against the person between 2008-2009, three theft and kindred offences between 2005 and 2008, one offence relating to the police/courts/prisons in 2009 and six miscellaneous offences between 2008-2009. He received his first reprimand/caution in 2004 for common assault. Details of those convictions are as follows:
18th October 2005 Nottingham Juvenile Court - Theft Act offences (TWOC).
Referral order 4 months. Licence endorsed. Disqualified from driving for 12 months.
2nd March 2007 Nottingham Juvenile Court – Attempt burglary of a dwelling with intent to steal.
Offence committed on bail. Six month Supervision Order.
31st January 2008 Nottingham Juvenile Court – Common Assault.
Attendance Centre 18 hours. Compensation £50 + costs.
29th July 2008 Nottingham Magistrates Court – Driving other than in accordance with a licence. Using a vehicle whilst uninsured. TWOC.
Six month Supervision Order. Driving licence endorsed. Disqualification from driving 6 months. Licence endorsed and costs.
6th November 2008 Nottingham Juvenile Court – Using vehicle whilst uninsured. Driving other than in accordance with a licence.
Conditional Discharge 84 days. Disqualified from driving 84 days. Licence endorsed.
21st January 2009 Nottingham Juvenile Court – Driving whilst disqualified. Using a vehicle while uninsured. Breach of a conditional discharge.
Conditional Discharge 12 months. Disqualified from driving 12 months.
8th June 2009 Nottingham Crown Court – Causing grievous bodily harm.
Offence committed on bail. Sixty six months detention in a Young Offenders Institution.
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It is as a result of the last offence, for which he received a five and a half year prison sentence that Mr Harverye was made the subject of a deportation order pursuant to UK Borders Act 2007. It was his appeal against the making of the automatic deportation order which was considered by the First-tier Tribunal.
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The sentencing judge, HHJ Bennett, sitting at the Nottingham Crown Court noted that Mr Harverye was not of good character and his guilty plea but in relation to the offence stated:
What you actually did, if you analyse it, in her own home, is you attacked [the victim]; you abused her, you mutilated her, you intimidated her and you humiliated her. All that over a long period of time. So although I am quite satisfied, as I have said to your counsel, you did not go there with the intention of carrying out this kind of attack, the fact is when you saw the opportunity after opportunity after opportunity you took it.
Twice you poured boiling water over her. One has only to look at the photographs to realise the extent of that and the consequence is she is scarred for life and had to undergo surgery. She will never get back what she had before you did that to her, so far as her body is concerned never mind the psychological damage. You used a melted plastic bottle and stuck it in her neck. That is absolutely awful. Then as if that was not bad enough, you humiliated her by trying to her to strip and dance in front of the group when she was injured in this terrible way and warned her not to go to the police and threatened her.
That is a list, I am afraid, of extremely aggravating factors.
The result is that if you had been convicted for doing that at the hands of a jury I would undoubtedly have given you 9 years in a Young Offenders Institute. As it is, with mitigation, I shall give you 5 ½. So you get your full discount and six months off the balance of the mitigating features….. I can pass no less for something as horrific as this.
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Mr Harverye has admitted he was a drug dealer.
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As a result of his conviction Mr Harverye was excluded from the protection of the Refugee Convention and it was found he had failed to rebut the presumption that he constituted a danger to the community. The finding of the First-tier Tribunal in this regard was not challenged on appeal.
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A number of findings were made in response to specific submissions made by Miss Mair at the hearing in 2013 which resulted in the following concluding paragraph:
59. Having considered all the evidence I do not accept the argument that the Mr Harverye’s situation will result in destitution as a result of his personal characteristics and circumstances. I do not find the evidence he seeks to rely upon is sufficient to allow me to depart from any of the existing country guidance case law. I therefore would not find Mr Harverye has proved that the United Kingdom will be in breach of its obligations under Article 3 ECHR should he be deported from the United Kingdom and returned to Zimbabwe with the exception of the real risk of such a breach as a result of the heightened levels of violence and associated risks at this election time, recognised in case law, and the unique factors relating to Mr Harvey such as his lack of language skills. If the elections period passes and violence abates and the position is as per CM the Secretary of State will be able to reconsider her position. It is the timing and as Miss Mair submitted, the combination of Mr Harvey’s characteristics, that create the real risk at this time.
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The appeal was allowed which created an outcry in certain national newspapers at the time. The Daily Mail published an article with the heading:
Zimbabwean criminal who burned woman's face with melted plastic cannot be deported because it would breach his human rights
By Daily Mail Reporter
Published: 11:18, 7 September 2013 | Updated: 13:47, 7 September 2013
A judge has ruled a Zimbabwean national who was jailed for five and a half years after he scarred a woman for life cannot be deported because it would breach his human rights.
Drug dealer Valentine Harverye burned his 34-year-old victim with a melted cider bottle and scalded her with boiling water. He was said to have assaulted her in front of five or six people at her home in 2009.
An attempt to deport Harverye, made by the Home Office, has now been defeated after he appealed against the move.
Valentine Harverye has defeated an attempt by the Home Office to deport him (file picture posed by model)
Upper Tribunal Judge Christopher Hanson said deporting the 22-year-old could breach his human rights as he would not be able to demonstrate loyalty to Robert Mugabe's party and so may face 'ill-treatment', The Telegraph has reported.
The paper reported the move would have breached Article 3 of the European Convention of Human Rights.
A Home Office spokesman said: 'We are disappointed by the Tribunal's decision as we firmly believe that foreign nationals who break the law should be deported.
'We are examining the detail of this ruling before we decide whether to appeal.'
Harverye was first convicted for common assault in 2004. He went on to commit a further 12 offences, including the assault which left a woman scarred in 2009.
He was jailed for the offence at...
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