Upper Tribunal (Immigration and asylum chamber), 2015-09-04, DA/01515/2014

Appeal Number: DA/01515/2014

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: da/01515/2014

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE GRUBB

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

MD

(anonymity direction MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S Chelvan instructed by South West Law

For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction

1. Both MD and the Secretary of State appeal to the Upper Tribunal against the decision of the First-tier Tribunal (Judge Burnett) allowing the appellant’s appeal under Art 3 of the ECHR but dismissing his appeal on asylum grounds against a decision to deport him pursuant to the automatic deportation provisions in the UK Borders Act 2007.

2. For convenience, we will continue to refer to the parties as they appeared before the First-tier Tribunal.

Background

3. The appellant is a citizen of Pakistan. He is 40 years old. He first arrived in the UK on 26^th January 2004 as a visitor. Subsequently he returned to Pakistan and then again came to the UK being granted leave until 30 June 2005. His leave was subsequently extended first as a work permit holder until 1 August 2006 and then as a visitor until 15 September 2006. On 14 September 2006 he made an application for leave to remain outside the Rules but this was refused on 4 October 2006. The decision was reviewed and upheld on 22 December 2006. Consequently, the appellant has overstayed in the UK since 15 September 2006.

4. Between 2 December 2008 and 11 February 2010 the appellant was convicted of a number of offences. On 18 April 2011, he was convicted at Coventry Crown Court of a number of sexual offences involving men and, in relation to the most serious, he was sentenced to an indeterminate sentence of imprisonment for public protection with a determinate period of eight years’ imprisonment.

5. On 15 June 2011, the appellant was informed that he was liable to automatic deportation which was followed by a questionnaire and an invitation to make representations why he should not be deported. He did not respond.

6. On 9 April 2014, the appellant was informed by letter that the Secretary of State considered that s.72 of the Nationality, Immigration and Asylum Act 2002 (“NIA Act 2002”) applied on the basis that the appellant had committed a particularly serious crime and constituted a risk to the community. Representations were then made on his behalf on a number of dates in April 2014 including that the appellant claimed to be at risk on return to Pakistan because he is a gay man and because he has converted from Islam to Christianity.

7. On 14 July 2014, the Secretary of State made a decision that s.32(5) of the UK (Borders) Act 2007 applied as the appellant was a foreign criminal and his return to Pakistan would not breach his human rights or the Refugee Convention. The Secretary of State also issued a certificate under s.72(9) of the NIA Act 2002 that the presumptions in s.72(2) applied namely that the appellant had been convicted of a particularly serious crime and constituted a danger to the community in the UK.

The Appeal to the First-tier Tribunal

8. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 25 November 2014, Judge Burnett accepted that the appellant would be at risk on return to Pakistan because he was a gay man and a Christian convert. As a consequence he allowed the appellant’s appeal under Art 3 of the ECHR. However, Judge Burnett considered that the appellant had not rebutted the presumptions in s.72(2) that he had been convicted of a particularly serious crime and that he constituted a danger to the community. As a result, he upheld the certificate under s.72(9) and dismissed the asylum appeal without substantive consideration in accordance with s.72(10) of the NIA Act 2002.

The Appeals to the Upper Tribunal

9. The appellant sought permission to appeal to the Upper Tribunal against the judge’s decision to uphold the s.72 certificate on the basis that the judge finding that the appellant constituted a danger to the community in the UK was contrary to the evidence and irrational.

10. On 16 December 2014, the First-tier Tribunal (Judge V A Osborne) granted the appellant permission to appeal on that ground. The respondent filed a rule 24 reply dated 9 January 2015 seeking to uphold the Judge’s decision on the s.72 certification. Finally, the appellant served a rule 25 reply to that notice dated 1 February 2015.

11. In addition, the Secretary of State sought permission to appeal to the Upper Tribunal against the judge’s decision to allow the appeal under Art 3. The Secretary of State argued that the judge had been wrong to find that the appellant was at risk on return as a gay man or Christian convert in accordance with the objective evidence. Further, in relation to the risk to the appellant as a gay man, the judge had failed to make any finding as to whether the appellant would live “openly” in Pakistan.

12. The appeal was initially listed for hearing before UTJ Grubb on 28 April 2015. However, at that time the respondent’s application for permission to appeal to the First-tier Tribunal had not been decided. As a result, the appeal was adjourned in order that the respondent’s application for permission could be decided.

13. On 5 June 2015, the First-tier Tribunal (UTJ Roberts) granted the respondent permission to appeal against Judge Burnett’s decision to allow the appeal under Art 3. The appellant served a rule 24 reply dated21 July 2015 seeking to maintain the Judge’s favourable decision under Art 3.

14. The appeal was subsequently listed before the Upper Tribunal in its current constitution on 27 July 2015.

The Respondent’s Appeal

15. We will deal first with the respondent’s appeal as that matter can be dealt with relatively shortly given the position taken by both representatives before us.

16. Mr Mills, who represented the Secretary of State did not seek to pursue the respondent’s challenge to Judge Burnett’s decision to allow the appellant’s appeal under Art 3. He acknowledged that it was accepted that the appellant was a gay man. At the First-tier Tribunal hearing, the Presenting Officer indicated that he had no submissions to add beyond the refusal letter and accepted that that letter acknowledged that the appellant was at risk in his home area. Further, he accepted that the Presenting Officer had not sought to make any representations in the light of the Operational Guidance Notes in respect of Pakistan for July 2014 relating to risk based upon sexual orientation and as a Christian convert.

17. In addition, Mr Mills accepted the position put forward by Mr Chelvan (who represented the appellant) that it was no longer relevant to enquire whether the appellant would behave “discreetly” in Pakistan. If he would be at risk, if he behaved openly, then he was entitled to international protection, at least in this case under Art 3 and, subject to any s.72 certificate point, asylum. Mr Mills accepted that the recent decision of the Upper Tribunal in MSM (dated 3 July 2015 and contained in the appellant’s UT bundle at pages 74 et seq and subsequently reported as MSM (journalists; political opinion; risk) Somalia [2015] UKUT 413 (IAC)), relying on the CJEC’s decision in X, Y and Z (C-199/12 to C-201/12) [2014] Imm AR 440, had removed the requirement recognised in HJ (Iran) v SSHD[2010] UKSC 31 that, in order to succeed in an international protection claim, the appellant must establish that at least one of the reasons why he would behave “discreetly” would be out of fear of persecution or serious ill-treatment.

18. In the light of Mr Mills’ position it is not necessary for us to explore further the impact of X, Y and Z upon HJ (Iran) as recognised by the UT in MSM. Mr Mills did not actively pursue the Secretary of State’s appeal against Judge Burnett’s decision to allow the appeal under Art 3 and in the light of that we dismissed the Secretary of State’s appeal. Judge Burnett’s decision to allow the appeal under Art 3 stands.

The Appellant’s Appeal

19. The focus of the arguments before us concern the judge’s decision to uphold the s.72 certificate.

20. Mr Chelvan’s submissions set out in the grounds, his rule 25 reply and in further detail at the hearing can be summarised as follows. At the hearing before Judge Burnett, the Presenting Officer did not challenge any of the evidence of the witnesses who gave evidence about the rehabilitation and lowering of risk that the appellant posed since his imprisonment. In particular, Mr...