Upper Tribunal (Immigration and asylum chamber), 2018-03-16, DA/01530/2014
| Jurisdiction | UK Non-devolved |
| Date | 16 March 2018 |
| Published date | 05 April 2018 |
| Hearing Date | 12 December 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/01530/2014 |
Appeal Number: da/01530/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/01530/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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Oral Decision given following the hearing On 12 December 2017 |
On 16 March 2018 |
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Before
THE HONOURABLE MR JUSTICE GOSS
UPPER TRIBUNAL JUDGE CRAIG
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
mr Tashinga Alvin Musandu
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant (Secretary of State): Ms A Everett, Senior Home Office Presenting Officer
For the Respondent (Mr Musandu): Mr M Walsh, Counsel, instructed by The Trent Centre for Human Rights
DECISION AND REASONS
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This is the Secretary of State’s appeal against a decision of First-tier Tribunal Judge Robson who had allowed Mr Musandu’s appeal against the Secretary of State’s decision to deport him. For ease of reference I shall throughout this decision refer to the Secretary of State who was the original respondent as “the Secretary of State” and for Mr Musandu, who was the original appellant, as “the claimant”.
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This appeal has had a long and unfortunate history because a previous decision of the First-tier Tribunal in which the Secretary of State’s decision to dismiss the claimant’s appeal had been dismissed was set aside due to procedural irregularity. The precise reasons why this decision was set aside are not relevant for the purposes of this hearing.
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The facts can be set out relatively briefly. The claimant arrived in the UK in August 1999 with his mother who had previously been in the UK and then returned to Zimbabwe. At the time the claimant was 7 years old. Regrettably from a very early age the claimant started offending. In 2007, when he would have been 14 or 15 years old, he was cautioned for common assault. In August 2009 he was involved in an attempted robbery and common assault and in September 2009 he threatened harm to a witness on a jury. Then in January 2010 in respect of further offences he was sentenced to eight months’ detention and training. The following month he was convicted of an offence of wounding at Nottingham Magistrates’ Court and sentenced to ten months’ detention and training.
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On 24 June 2010 the Secretary of State wrote to the claimant warning him that deportation would be considered and would be considered in the future. Thereafter on 30 May 2012 the appellant was convicted of very serious offences indeed of robbery and attempted robbery in respect of which, despite his relatively youthful age (he was just 20), he was sentenced to eight years at a young offender’s institution. While the claimant was serving his sentence the Secretary of State wrote to him informing him of the deportation order which was dated 14 July 2015. The basis of the decision was that removal was conducive to the public good as provided within Section 3(5)(a) of the Immigration Act 1971 because pursuant to Section 32(5) of the UK Borders Act the Secretary of State must make a deportation order in respect of foreign criminals unless one of the Exceptions set out within Section 33 applies. The claimant had been previously served with a notice of liability for automatic deportation following his sentence, on 5 August 2012, and by the time of the notice of decision he had not responded to that notice.
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As already noted the claimant appealed against this decision and the original decision dismissing the appeal was set aside and so his appeal came before First-tier Tribunal Judge G R J Robson, sitting at Bradford Magistrates’ Court on 10 July 2017. In a decision and reasons promulgated on 21 August 2017, for reasons which will be set out briefly below, Judge Robson had felt obliged to allow the appeal and it is in respect of this decision that the Secretary of State now appeals, leave having been granted by First-tier Tribunal Judge Baker on 31 October 2017.
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Judge Robson in his decision considered whether the claimant would be entitled to remain in this country on human rights grounds (and if he would then the decision to deport would be unlawful under Section 33 of the UK Borders Act, being in breach of the ECHR) but it is clear from the decision that having considered the relevant paragraphs of the Immigration Rules he concluded that his removal would not be unlawful under Article 8. He sets out the relevant provisions from paragraph 78 onwards. At paragraph 79 he sets out paragraph 398 of the Immigration Rules and he also sets out the other relevant Rules, including reference to paragraphs 399 and 399A subsequently. The findings of fact include at paragraph 89 that “in relation to his daughter, I am not satisfied that the best interests of that child will be served by the [claimant’s] continued residence in the United Kingdom”.
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He refers to Section 117C of the Nationality, Immigration and Asylum Act 2002, inserted by the Immigration Act 2015, and notes that the sub-paragraphs relevant in this case apply to all ECHR Article 8 claims for foreign criminals decided on or after July 2015, as is the case here. However having considered all the evidence (and of course this is a case where the claimant is to be deported if the Secretary of State’s decision is upheld on the basis that he has been sentenced to a period of imprisonment of over four years), he concludes at paragraph 96 that “in view of what I have found above, I conclude there will be no exceptional compelling reasons for the appellant to remain in the United Kingdom, despite the length of his presence here and his integration into this country”. He makes this finding having considered the best interests “not only of the...
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