Upper Tribunal (Immigration and asylum chamber), 2018-11-12, HU/25723/2016
| Jurisdiction | UK Non-devolved |
| Date | 12 November 2018 |
| Published date | 04 December 2018 |
| Hearing Date | 24 September 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/25723/2016 |
Appeal Number: hu/25723/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: hu/25723/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 19th June 2018 and 24th September 2018 |
On 12th November 2018 |
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Before
THE HONOURABLE MR JUSTICE LANE. PRESIDENT
DEPUTY UPPER TRIBUNAL JUDGE JUSS
Between
MR Paul Anthony smith
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Haywood (Counsel), Owens Stevens Solicitors
For the Respondent: Mr I Jarvis (Senior HOPO)
DECISION AND REASONS
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This is an appeal against the determination of First-tier Tribunal Judge Monson, promulgated on 5th January 2018, following the hearing at Taylor House on 11th December 2017. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matters comes before us.
The Appellant
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The Appellant is a male, a citizen of Jamaica, who was born on 28th December 1965. He appealed against the decision of the Respondent Secretary of State dated 7th November 2016 to deport him to Jamaica. The Appellant has had three cautions and convictions between 2nd August 2003 and 26th November 2008. His criminality, it was suggested, meant that his removal from the UK was conductive to the public good under Section 3(5)(a) of the Immigration Act 1971.
The Appellant’s Claim
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The essence of the Appellant’s claim is that he is the father of two minor children. These are “J”, “Q” and “L”. In relation to these children, “Q” currently lives with his mother in Jamaica. As for “J” and “L”, they are both British citizens. For “J” the Appellant has indirect contact, pursuant to a Family Court decision, as “J” lived with his mother. The remaining child, “L”, also lived with his own mother, at a distance of some two hours away, and the Appellant claimed that he saw him at weekends. The Appellant maintained that he was seeking to continue having such contact, but his mother disputed this, in her communication with Social Services. Indeed, it is a feature of this case that the Home Office had been in contact with Social Services with respect to “J” and “Q” and had been informed that these children were currently on a Child Protection Plan under the category of neglect, and the Appellant had not been named on the children’s birth certificates. These matters were referred to expressly by Judge Monson when giving his decision (paragraph 40).
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The Appellant’s human rights claim was also based upon his relationship with a [MJ], whom he had met, some two months before the hearing before Judge Monson, in September 2017. In relation to this aspect of the claim, Judge Monson observed that, with respect to his relationships with his alleged partners, “[MJ] was not here today to support him as she had a 6 month old baby by another father” and that a previous partner, “[M] was not here to support him, as she had to go to work. He was not in a relationship with L’s mother. She had a partner with whom she and “L” lived, together with another son and two daughters” (paragraph 69).
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The Appellant’s human rights claim was also based upon his private life, given that he had arrived in the UK in October 2002 on a visit visa, and subsequently been granted indefinite leave to remain the following year in 2003. This arose as a result of his marriage to a Jamaican national who was present and settled in the UK. Thereafter, his attempt to apply for naturalisation in 2007 was frustrated by the fact that he had a string of offences which led the Secretary of State to regard him as a person of bad character, and in consequence his request for naturalisation was refused. These offences ranged from possession of cannabis, to an assault on his daughter, to theft of clothing, and to driving without insurance.
The Judge’s Determination
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In a comprehensive and carefully compiled determination, Judge Monson, after setting out the background, concluded that the Appellant’s appeal against deportation fell to be dismissed. The Appellant had three convictions for five offences and three cautions for a further three offences. The oral evidence received at the hearing from PC Lindsay Barnes confirmed no less than 36 police encounters with the Appellant (see paragraphs 3 to 4). The Metropolitan Police had also provided a witness statement detailing the Appellant’s “previous non-conviction encounters”, which included seven alleged offences against a person between 2006 and 2014 – namely, one sexual offence in 2013; one offence against property in 2014; two thefts and kindred offences between 2006 and 2014; one drugs offence in 2014; and two miscellaneous offences between 2010 and 2014 (see paragraph 52). The Metropolitan Police also included details of “not guilty charges” (paragraph 53).
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In his determination, Judge Monson ruled that the Secretary of State was not precluded from relying on “non-conviction” evidence for the purposes of a deportation decision, so long as the allegations were proved against the Appellant, and in this the Judge was guided by Bah (EO (Turkey) – liability to deport) [2012] UKUT 00196 (IAC). Moreover, consideration was also given by him to Farquharson (Removal – proof of conduct) [2013] UKUT 00146, which established that if the material is such that it is open to more than one interpretation, an adverse interpretation should only be drawn, if on a balance of probabilities, there is no other reasonable explanation on the material before the Tribunal (see paragraph 74 of the determination).
The Findings of the Judge
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In coming to his conclusions, the judge apprised himself of the situation before him, as set out in the refusal letter. This was that the Appellant’s human rights claims had been rejected in the face of the deportation order on grounds that the convictions and cautions between 2003 and 2008. These were coupled with the Appellant’s “character, conduct and associations” as revealed by the information provided by the Metropolitan Police, in relation to his previous “non-conviction” encounters between 2006 and 2014. Cumulatively, these suggested that it was beyond doubt that the Appellant had been involved in serious criminality in the UK (see paragraph 75). PC Barnes, who gave oral evidence, summarised the information in the CRIS Reports about each of the previous non-conviction encounters (paragraph 76).
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For his part, Mr Haywood had a detailed analysis of the underlying CRIS material prepared, and he endeavoured before the Tribunal to draw out the exculpatory elements within many of the encounters. He submitted that the Appellant was probably innocent in many of the cases and the information by the complainant was unreliable (paragraph 77). To this, the Judge pointed out what was established in Farquharson, namely, that the Secretary of State has to substantiate the conduct relied upon (paragraph 78) if reliance is to be placed on ‘non-conviction’ evidence. The judge then moved on to a consideration of the two offences of actual bodily harm (ABH) which he considered in this respect to have been proved against the Appellant.
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First, there was ON36, which arose from an incident on 1st June 2017, and concerned a complaint against the Appellant for assaulting his ex-partner ‘Florence’. The allegation was that he had punched her in the face causing her to cut her lip and had damaged her mobile phone. The Appellant had a pre-prepared statement. In this he said that Florence’s allegations were false and malicious. When questioned he had answered, “no comment.” Although Florence had later signed a withdrawal statement, the police had then provided the CPS with a “body worn camera evidence” and this is said to have clearly portrayed the victim’s injuries and distress (paragraph 79). The judge concluded on this basis that “it is likely that Florence was telling the truth when she complained to the police that she had been assaulted by the Appellant at her place of work.” This meant that the allegation of ABH was borne out (see paragraph 80).
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Second, there was ON20, which concerned an incident two years later on 16th May 2009, when the Appellant and his then partner, who was referred to as ‘DN’, were together at his flat. “DN” made allegations of rape and false imprisonment against the Appellant, and when the police had arrived at the Appellant’s flat, he had delayed in opening the door to the police. When asked for an explanation by them he had said he had locked the door with ‘DN’ inside the flat because of a recent burglary. The judge did not find this explanation to be credible. However, the judge, did not find the Appellant to have committed the offences of rape and false imprisonment. He did, on the other hand, find the Appellant to have been guilty of ABH. He based this finding having rejected the suggestion that this was an accident with the explanation that, “I consider that his account of accidentally headbutting her is incredible,...
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