Upper Tribunal (Immigration and asylum chamber), 2015-11-25, DA/01672/2013
| Jurisdiction | UK Non-devolved |
| Date | 25 November 2015 |
| Published date | 15 June 2016 |
| Hearing Date | 30 June 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/01672/2013 |
Appeal Number: DA/01672/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01672/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Decision and Reasons Promulgated |
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On 30 June 2015 |
On 25 November 2015 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
DEPUTY UPPER TRIBUNAL JUDGE O’RYAN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MOHAMMED HASSAN BARRE
(ANONYMITY ORDER NOT MADE)
Respondent
Representation:
For the Appellant: Ms A. Brocklesby-Weller, Senior Home Office Presenting Officer
For the Respondent: Mr A. Adewoye instructed by Prime Solicitors
DETERMINATION AND REASONS
1 In this decision, we continue to refer to the parties as they were before the First-tier Tribunal. The Appellant, a national of Somalia, appeals against the decision of the Respondent dated 8 July 2013 to make a deportation order against him under s.3(5)(a) and s.5(1) Immigration Act 1971. On 14 August 2013 he filed notice of appeal, out of time, to the First tier Tribunal, but applying for an extension of time which was granted. The Respondent had on 19 August 2013 actually signed a deportation order against the Appellant, possibly in ignorance of the fact that the Appellant had brought an out of time appeal. We proceed to treat the present appeal as an appeal brought under s 82(1)(j) Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002').
2 The Appellant appealed against the decision of 8 July 2013 on asylum and human rights grounds (Articles 2, 3, and 8). The appeal came before Judge of the First tier Tribunal Bennett at Hatton Cross on 23 July 2014, and was allowed, ostensibly on human rights grounds under Article 8 ECHR, finding that the circumstances that the Appellant would have to face in Merka, Somalia, would be unjustifiably harsh [79]. The Respondent sought permission to appeal, which was granted by the Upper Tribunal on 1 December 2014.
3 The error of law hearing came before Upper Tribunal Judge Kopieczek on 30 January 2015. In his decision and directions dated 4 March 2015 (appended to this decision), he ruled that the FtT had materially erred in law, in:
(i) failing to have regard to the considerations set out in Part 5A NIAA 2002 [18];
(ii) its assessment of then-applicable Country Guidance of AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) (‘AMM’); by:
(a) considering only the Appellant’s position on return to Merka, rather than also considering his position in Mogadishu [27, 29]; and,
(b) failing, when considering what connections the Appellant may or may not have in Somalia, to take into account the FtT’s own earlier finding that the evidence of the Appellant and his family members in the UK was to be treated with the greatest circumspection [27]-[29].
4 Judge Kopieczek adjourned the re-making of the decision, observing that findings of fact made by the FtT were to stand, save for any findings infected by error of law. Directions given were as follows:
“1 At the next hearing the parties must be in a position to make submissions as to what findings of fact are to be preserved, and in relation to the application of the decision in MOJ & Ors (Return to Mogadishu) Somalia CG [20014] UKUT 00442 (IAC).”
5 The matter now comes before the Tribunal as a re-hearing of the Appellant’s appeal.
Immigration and offending history
6 The essential elements of the Appellant’s immigration and offending history are as follows. The Appellant arrived in the United Kingdom on 19 July 2006 with indefinite leave to enter on family reunion grounds. He has never naturalised as a British Citizen.
7 The Respondent’s reasons for making the decision of 8 July 2013 to deport the Appellant are contained within a letter dated 4 July 2013 (‘the refusal letter’). The Appellant has a total of 17 convictions for 27 offences dating from 1 December 2009 to 29 May 2013. These are set out in the record of the Appellant’s antecedents as recorded in the Police National Computer (‘PNC’) print-out and in a table at page 2-3 of the Respondent’s letter of 4 July 2013 (Q2-Q3). These include offences for robbery, theft, using or threatening to use abusive or insulting words or behaviour with intent to cause fear or provocation of violence (2 such convictions), handling stolen goods, possession of a class B controlled substance (cannabis) (5 such convictions), battery (2 such convictions), affray, possession with intent to supply a Class B controlled substance, and various offences of failing to comply with previous community orders.
8 The Appellant has been sentenced to detention and training orders (‘DTO’) on four occasions, amounting to 24 months in total, the last being a DTO of 8 months, arising from his conviction on 22 October 2012 for possession with intent to supply a Class B controlled drug (cannabis), for which he was initially sentenced to a Youth Rehabilitation Order with ISSP (Intensive Supervision and Surveillance Programme). On 28 December 2012 he was convicted of failing to comply with that sentence, and a sentence of an 8 month DTO was imposed. Since that sentence of 28 December 2012, the Appellant has been convicted of one further offence, on 29 May 2013, of possession of Class B drug - cannabis, for which he was fined.
9 Upon considering that offending history, the Respondent held in her refusal letter that the Appellant’s deportation would be conducive to the public good (refusal letter, Q1) and that he was a persistent offender whose offences had caused serious harm, and was therefore a person to whom paragraph 398(c) of the Immigration Rules applied (refusal letter, Q5-Q6). The Respondent’s decision of 8 July 2013 to deport the Appellant was therefore made under s.3(5) and 5(1) Immigration Act 1971, rather than s.32 UK Borders Act 2007.
Relevant law
10 As a consequence of the Appellant’s offending history, the following provisions are relevant:
11 s.3(5)(a) Immigration Act 1971:
“(5) A person who is not a British citizen is liable to deportation from the United Kingdom if —
(a) the Secretary of State deems his deportation to be conducive to the public good;
...”
12 s.5(1) Immigration Act 1971:
“5. — Procedure for, and further provisions as to, deportation.
(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.”
13 Part 5A NIAA 2002 (ss.117A-D):
“Article 8 of the ECHR: public interest considerations
117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well‑being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well‑being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a) the person has a genuine and...
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