Upper Tribunal (Immigration and asylum chamber), 2017-03-08, JR/11757/2015
| Jurisdiction | UK Non-devolved |
| Date | 08 March 2017 |
| Published date | 13 October 2017 |
| Hearing Date | 11 January 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | JR/11757/2015 |
Case Number: JR/11757/2015
IN THE UPPER TRIBUNAL
JR/11757/2015
Field House,
Breams Buildings
London
EC4A 1WR
Wednesday 11th January 2017
Before
UPPER TRIBUNAL JUDGE REEDS
Between
The QUEEN
(ON The application OF)
YO
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Mr R. Khubber, Counsel, instructed by Duncan Lewis Solicitors on behalf of the Applicant.
Mr Chapman, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
(HANDED DOWN ON 8th March 2017)
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
UPPER TRIBUNAL JUDGE REEDS:
Introduction
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This is an application for judicial review of a decision made by the Secretary of State (“the Respondent”) on 10th September 2015: the application having been lodged on the 28th September 2015 and permission having been granted after a hearing by order of Upper Tribunal Judge O’Connor dated 25th May 2016.
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I was invited to make an anonymity order to protect the identity of members of the applicant’s family and the victim of his criminal offending. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269 as amended) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the applicant or his partner. For the avoidance of doubts, this order also applies to both the applicant and to the Respondent. The failure to comply with this order could lead to contempt of court proceedings.
Background:
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The applicant is a national of Nigeria born on 16th June 1993. The exact date his mother and siblings entered the United Kingdom is not known however the applicant claims to have entered the United Kingdom in 2007 using his own Nigerian passport at the age of 13. Prior to his entry in the UK he resided with his grandmother in Nigeria who is now deceased.
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The applicant was granted a residence card on 16th February 2011 as a dependant of an EEA national. The applicant’s mother was married to a Portuguese national who was exercising Treaty Rights and as a result the applicant, his mother and twin brothers were all granted residence cards in the UK which expired on 16th February 2016. The applicant has a sister who is a British citizen.
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The Applicant has a number of criminal convictions. They are set out in the papers and specifically considered in the decision letter of the 10th September 2015. On 16th August 2013 he appeared before the Magistrates’ Court on two counts relating to driving offences namely driving otherwise than in accordance with a licence and using a vehicle uninsured. He received a fine and his licence is endorsed and ordered to pay costs and compensation.
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On 24th July 2014 the applicant pleaded guilty to a number of offences; one count of sexual activity with a female under 16, one count of offering payment for sexual services to a child and four counts of fraud in relation to bank or credit cards and one count of possession of a computer with credit/banking and personal details.
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On 11th September 2014 the applicant was sentenced to a period of imprisonment totalling three years and four months. In the decision letter the remarks of the sentencing judge are set out. In summary, the judge observed that the most serious offences committed were the sexual offences where it is said the applicant took advantage of a vulnerable 15 year old girl, that the event had been planned and the child had been groomed. The judge considered the applicant’s sexual offending to fall within “Category 1” of the sentencing guidelines in relation to harm (involving penetrative sex) and within “Category (a)” relating to culpability due to the planning and grooming involved. The judge took into account his age and that he had been of effective previous good character. The judge gave him a full one third credit and he received a sentence of 40 months imprisonment. As regards the fraud offences which used the misuse of approximately two and a half thousand pounds, the judge ordered sentences of imprisonment to run concurrently. Thus the total sentence was one of three years and four months.
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There have been two sets of proceedings for judicial review issued on behalf of the Applicant and the first set is relevant to the background of the present claim issued. I will therefore summarise the salient facts.
The first set of judicial review proceedings:
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On 26th September 2014 the Secretary of State wrote to the Appellant informing him that in view of his offending background that she was to make a deportation order against him and invited the applicant to make representations having given him 20 days to respond. On the 28th November 2014, his solicitors sought an extension of time to provide representations. On the 12th February 2015 the Respondent served a preliminary decision to make a deportation order against the Applicant. As a result of his criminality his deportation was considered to be justified on grounds of public policy and/or public security. The decision was one made pursuant to the Immigration (European Economic Area) Regulations 2006 thus it was considered on the basis that he was a family member of an EEA national and as such qualified for consideration under the 2006 Regulations.
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The notice went on to state that the Secretary of State proposed to give directions for his removal to Nigeria and if there were reasons why he should not be deported the applicant should tell the Secretary of State in writing within twenty days of service of the letter. The notice referred to a leaflet being attached to the letter explaining what information and evidence could be submitted. In the notice it made reference to Regulation 29 of the 2006 Regulations that an appeal against the decision to deport did not prevent the Secretary of State from obtaining or executing a deportation order to remove the applicant from the United Kingdom. The letter went on to state that in certain circumstances the Secretary of State may certify that the applicant’s removal notwithstanding that the appeal process has not yet begun or been finally determined would not be unlawful under Section 6 of the Human Rights Act 1998. It makes specific reference to Regulation 24AA of the 2006 Regulations. In highlighted type it stated
“If you have any reasons why you should not be expected to continue an appeal after you have left the United Kingdom you must inform us within twenty working days of the date of service given at the end of this letter”.
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On the 11th March 2015 representations were received from the applicant’s representatives in response to that letter. The applicant was in custody at that time serving his sentence (see ABB68 – 141). The representations made reference to matters relevant to the EEA Regulations and in particular, that the applicant was a dependent family member of an EU national; the applicant’s mother having married a Portuguese national who was exercising treaty rights in the UK. It further made reference to the applicant, his mother and siblings having been granted residence cards until February 2016.
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As to Article 8 of the ECHR, the representations set out the applicant’s factual background making reference to his entry to the UK aged 13 in 2007 and that upon entry resided with his mother and siblings. The applicant’s sister was a British citizen and that the applicant and his siblings resided in the UK under a residence card. The representations made reference to his social and cultural integration relying on his educational studies in the UK and his relationship with his mother and siblings and made reference to the lack of any ties to his country of origin. Reference was made to the applicant playing an active role in his siblings’ daily life prior to imprisonment involving the taking and collection of them from school. The representations included a number of documents which included a number of school certificates and letters of support from his siblings which commented upon the adverse effects upon them of the applicant being deported from the UK. The letter from one of his siblings (AB120 – 121) made reference to the adverse impact that the threat of deportation had upon his education, the closeness of the relationship between him and the applicant and the positive support that he had given to his school and football activities. A similar letter from his other sibling made reference to the adverse impact of deportation beyond the adverse impact of separation resulting from imprisonment.
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Further enquiries were made by the Secretary of State concerning the nature of the claim made under the EEA Regulations (which are not material for the purposes of this judgment). On the 4th June 2015 the Applicant’s solicitors provided further...
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