Upper Tribunal (Immigration and asylum chamber), 2015-08-18, DA/02320/2013
| Jurisdiction | UK Non-devolved |
| Date | 18 August 2015 |
| Published date | 02 December 2015 |
| Hearing Date | 29 July 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/02320/2013 |
Appeal Number: DA/02320/2013
IAC-fH-nl-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02320/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 29th July 2015 |
On 18th August 2015 |
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Before
UPPER TRIBUNAL JUDGE FRANCES
Between
james jones
(anonymity direction not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms R Akther, Counsel instructed by Polpitiya & Co Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer
DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka born on 23rd December 1983. His appeal against deportation was dismissed on all grounds on 14th July 2014 by First-tier Tribunal Judge Harris and a non-legal member [the panel].
2. The Appellant entered the United Kingdom on 27th December 2000 and claimed asylum on arrival. His claim was refused on 30th March 2001 and he was granted exceptional leave to remain until 17th June 2005. On 22nd October 2006, at Isleworth Crown Court, the Appellant was convicted of wounding with intent to cause grievous bodily harm, kidnapping and violent disorder. He was sentenced on 19th January 2007 to an indeterminate sentence and a minimum of four years’ imprisonment to run concurrently. That sentence brought into operation the provisions of Section 32 of the UK Borders Act 2007 concerning automatic deportation.
3. The Appellant made submissions in writing that his removal from the UK would result in a breach of Articles 3 and 8 of the European Convention on Human Rights as he feared persecution in Sri Lanka. On 3rd September 2011 the Appellant was invited to rebut the presumption that Section 72 of the Nationality, Immigration and Asylum Act 2002 applied to his case and that he had been convicted of a particularly serious crime and constituted a danger to the community of the United Kingdom.
4. Representations were made and the Appellant was interviewed on 8th May 2012 and 22nd May 2012. In a decision dated 6th November 2013, the Secretary of State decided to deport the Appellant under Section 32(5) of the UK Borders Act 2007. The Appellant appealed against that decision and the appeal came before the panel on 13th March 2014.
5. At that hearing before the First-tier Tribunal the Appellant adopted his witness statement and gave evidence. He relied on a bundle of 214 pages, a case law bundle, a bundle of papers before the Parole Board, witness statements and a supplementary bundle containing a report from the Lancashire Probation Trust and a medical report from Ms Tanya Longman.
6. The grounds of appeal to the Upper Tribunal in summary argue that the panel:
(i) failed to properly apply Section 72 of the 2002 Act;
(ii) failed to properly assess the Appellant’s risk of serious harm on return to Sri Lanka under Article 3;
(iii) failed to assess the risk of persecution in Sri Lanka;
(iv) failed to have proper regard to the medical evidence supplied; and
(v) erred in law by delaying promulgation of the determination for over three months.
7. Permission to appeal was initially refused by Designated First-tier Judge McCarthy for the reasons given in a decision dated 1st August 2014. The application was renewed to the Upper Tribunal and Upper Tribunal Judge Rintoul granted permission on 8th December 2014 on the following grounds:
“It is arguable that the First-tier Tribunal erred in failing to adequately explain why they rejected the expert report of Dr Smith and the contention that the Appellant is at risk due to his conviction as a convicted criminal who had formed part of a Tamil gang in the UK. It is also arguable that the First-tier Tribunal erred in their assessment of Dr Longman’s report. While there is less merit in the other grounds permission is granted in respect of all the grounds pleaded.”
8. Upper Tribunal Judge Rintoul directed that the parties would be expected to address in detail why Dr Longman is entitled to be treated as an expert and to what extent there had been compliance with relevant guidance published by the GMC (Pool v GMC [2014] EWHC 3791 (Admin)). In accordance with those directions the Appellant’s representative, Ms Akther, produced a skeleton argument at the hearing in which she addressed Dr Longman’s qualifications. Ms Akther also relied on a report from Dr Arnold, submitted with the grounds of appeal, in which he gave his opinion on Dr Longman’s expertise. It was accepted that Dr Arnold’s report was not before the panel.
Submissions
9. Ms Akther relied on each ground in turn. She submitted that the panel had erred in law in finding that the Appellant had failed to rebut the presumption that he constituted a danger to the community. The Appellant was released in 2013 and had committed no further offences. The panel’s conclusion that the Appellant had not rebutted the presumption was perverse given the information in the probation report of Lancashire Probation Trust dated 3rd March 2015. The panel relied only on the assessment that he posed a medium risk of harm to the public and failed to take into account other detailed matters in that report. Had they done so they would have concluded that the Appellant had successfully rebutted the presumption. Accordingly their conclusion at paragraph 37 that he had failed to do so was not open to them on the evidence before them.
10. In relation to ground 2, Ms Akther submitted that there were no proper findings in relation to the Appellant’s Article 3 claim. There were no clear credibility findings and the panel failed to state which parts of the claim had been accepted and which parts had been rejected. There was evidence before the panel that the Appellant’s father was a well-known businessman and that the Appellant had been detained and released on bail. The panel failed to make clear findings on these aspects. The findings at paragraph 40 were unclear and did not indicate which parts of the claim the Appellant had accepted and which they had rejected.
11. The Appellant would be interviewed on return to Sri Lanka because the Sri Lankan High Commission would inform the security authorities on his application for a travel document. His family links with the LTTE and his previous detention and release on bail would put him at risk on return. The panel had failed to make a finding on those aspects of the Appellant’s claim.
12. In relation to ground 3, Ms Akther submitted that at paragraph 59 of Dr Smith’s report it stated:
“However on the basis of my work for the Metropolitan Police Service on precisely this issue, I can confirm that the links between the LTTE and Tamil credit card fraud in the UK is ambiguous. Nevertheless, the Sri Lankan authorities tend to automatically associate criminal activity in the UK with the LTTE. As such, the Sri Lankan authorities are likely to be aware of the Appellant’s conviction as they have been with others.”
13. Ms Akther submitted that the Appellant’s criminal activity as part of a Tamil gang in the UK would put him at risk on return and it was clear from the Tribunal decision in GJ & Others (post civil war returnees: Sri Lanka country guidance) [2013] UKUT 00319 (IAC) at paragraph 306 that the authorities would be informed of this fact. The Appellant had left Sri Lanka on bail. His family members had worked with the LTTE and his criminal activity in the UK would be of interest to the authorities on return. There was no reference in the decision of the panel to the Appellant’s membership of a criminal gang. Accordingly, their finding that the Appellant would not be at risk on return was perverse given the expert evidence of Dr Smith.
14. In relation to ground 4, Ms Akther submitted that on the basis of her skeleton argument the panel were not entitled to come to the conclusions they did at paragraph 43. A medical report of Dr Longman’s had been accepted by the Upper Tribunal in another case and therefore Dr Longman’s medical expertise could not be impugned by the panel in the way that was set out at paragraph 43.
15. In the case of Pool v GMC it was found that the doctor did not have relevant experience. However, in this case Dr Longman had extensive experience in assessing detainees and asylum seekers. She had complied with GMC guidance and was acting within her professional expertise in providing the medico-legal report to the panel.
16. In support of the grounds of appeal there was a report from Dr Arnold dated 11th August 2014. It was in response to instructions from solicitors requesting him to comment on the Tribunal’s decision in relation to the medical report of Dr Longman. At paragraph S2 Dr Arnold states:
“I have carefully reviewed Dr Longman’s medico-legal report. She identified 45 scars, and has described and assessed each of these with precision, giving attributions of each, using the methodology of the Istanbul Protocol. Further in full compliance with the...
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