Upper Tribunal (Immigration and asylum chamber), 2016-07-12, RP/00108/2015
| Jurisdiction | UK Non-devolved |
| Date | 12 July 2016 |
| Published date | 15 June 2017 |
| Hearing Date | 01 July 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | RP/00108/2015 |
Appeal Number: RP/00108/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: rp/00108/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 1 July 2016 |
On 12 July 2016 |
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Before:
UPPER TRIBUNAL JUDGE GILL
DEPUTY UPPER TRIBUNAL JUDGE K E D CHAMBERLAIN
Between
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M V (ANONYMITY ORDER MADE)
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Appellant |
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And
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The Secretary of State for the Home Department |
Respondent |
Anonymity
The anonymity order issued by the First-tier Tribunal is replaced by the following:
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to all, whether or not parties to this case.
Any failure to comply with this direction could give rise to contempt of court proceedings.
Representation:
For the Appellant: Mr D Neale, of Counsel, instructed by Paragon Law.
For the Respondent: Mr. S Kotas, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction and background facts:
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The appellant is a national of the Republic of Congo (not to be confused with the Democratic Republic of Congo or DRC), born on [ ] 1994 and 21 years old. He appeals, with permission, against a decision of Judge of the First-tier Tribunal A D Troup (hereafter referred to as the “Judge”) who, following a hearing on 12 April 2016, dismissed his appeal against a deportation order dated 13 November 2015 made against him as a foreign criminal. The respondent was required to order his deportation under s.32(5) of the UK Borders Act 2007 (the “2007 Act”) unless one of the exceptions in s.33 applies. The relevant exception in this particular case is Exception 1 which applies where the removal of a foreign criminal in pursuance of the deportation order would breach: (a) a person’s rights under the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), or (b) the United Kingdom's obligations under the 1951 United Nations’ Convention Relating to the Status of Refugees (the “Refugee Convention”).
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The appellant arrived in the UK on 6 January 2002 with his mother and his younger brother (“MJ”). The appellant was 7½ years old, his brother 5½ years old. He has two half-sisters who were aged 14 years and 8 years at the date of the hearing before the Judge and who were born in the United Kingdom. He also has an older sister who was aged 25 years at the date of the hearing before the Judge.
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The appellant had lived in the Republic of Congo from birth until 14 October 1997, when he was nearly 3½ years old, and in Gabon for about 4 years before his arrival in the UK.
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The appellant’s mother claimed asylum on 14 January 2002, shortly after her arrival in the United Kingdom. Her appeal was allowed by Adjudicator I.E. Vellins (hereafter referred to as the “Adjudicator” to distinguish him from the Judge), following a hearing on 8 August 2002, on asylum grounds and in relation to Articles 2 and 3 of the ECHR. She was granted indefinite leave to remain as a refugee by letter dated 12 February 2003 (the “Status letter”)
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The appellant's criminal convictions are set out below. The convictions of 4 October 2013 led to the respondent notifying the appellant that she intended to cease his refugee status in a letter dated 9 February 2015 (the “Notification letter”). She subsequently did cease (or purport to cease) his refugee status in the decision dated 13 November 2015 (the “Decision letter”), which relied, inter alia, on the reasons given in the Notification Letter. We summarise below the reasons for the respondent's deportation order, her decision to cease (or purport to cease) the appellant’s refugee status and her decision to refuse humanitarian protection and his human rights claims.
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The Status letter referred to the appellant and two of his younger siblings (the youngest had not been born then) as dependents. However, in her communications with the appellant and the UNHCR (see para 98 below), the respondent treated the appellant as someone who has been granted refugee status in his own right, for example, by giving notice of her intention to cease refugee status. We accept Mr Neale's submission that the appellant was in fact granted refugee status by the respondent notwithstanding that the Status letter may suggest otherwise and notwithstanding that the Notification letter and the Decision letter may, in part, also do so. That is the basis upon which the Judge decided this appeal. We decide this appeal on that basis.
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In the course of his submissions on ground 4, Mr Neale requested that the hearing before us be adjourned part-heard in order to enable the appellant to produce evidence to support the explanations advanced in the grounds and the skeleton argument dated 23 June 2016 for the failure of the appellant's mother and sister to attend the hearing before the Judge. We refused the adjournment request. Since the reasons for the adjournment request are inextricably bound up with ground 4, we give our reasons for our decision to refuse Mr Neale's request for an adjournment in the course of our assessment of ground 4.
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It is relevant to summarise the reasons why the appellant was granted refugee status. This requires us to summarise the basis of the asylum claim of the appellant's mother and the determination of the Adjudicator (see paras 16-18 below).
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It should be noted that the Judge had the report of an expert, Ms Ticky Monekosso, that was prepared not in relation to the appellant's case but that of his younger brother, MJ, who was also subject to deportation proceedings and who had an appeal before Judge of the First-tier Tribunal L Murray (hereafter Judge Murray to distinguish her from the Judge and the Adjudicator) at the same hearing centre on 21 April 2016. It is not known why the First-tier Tribunal was not requested to list the appeals for hearing before the same judge. As will be seen below, the Judge did not place much weight on the evidence of Ms Monekosso, whereas Judge Murray accepted the opinion of Ms Monekosso without question and therefore allowed MJ’s appeal, finding that there were substantial grounds for believing that MJ would be at risk of treatment contrary to Article 3 on return.
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The decision of Judge Murray was produced at the hearing when we indicated that we were aware from the Tribunal's computer system that Judge Murray had allowed MJ's appeal and that the respondent's application to the First-tier Tribunal for permission to appeal was awaiting a decision. Mr Kotas objected to the admission of the decision of Judge Murray, as it was produced at the hearing without any application for its admission having been made. We deal with this issue at paras 119-123 below.
The appellant's criminal convictions
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On 27 January 2012, the appellant was convicted at Nottingham and Newark Juvenile Court for intimidating a witness or juror with intent to obstruct, pervert or interfere with justice for which, on 17 February 2012, he was given a 12-month referral order.
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On 4 December 2012, the appellant was convicted at Nottingham Crown Court for possessing an imitation forearm with intent to cause fear of violence. On 17 January 2013, he was sentenced to 12 months detention in a Young Offenders’ institution (“YOI”). Due to this conviction, he was notified of his liability to deportation. However, the respondent stated that it was considered at that time that as a recognised refugee who had not been sentenced to a period of imprisonment of 2 years or more, that no deportation action would be taken against him at that time. On 18 February 2013, he was given a warning letter which stated that no deportation action would be taken against him but that if he came to adverse attention again, the Secretary of State would be obliged to consider the question of his deportation.
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On 4 October 2013, the appellant was convicted at Nottingham Crown Court for robbery and possession of an imitation firearm with intent to cause fear of violence. He was sentenced to 4 years 6 months for the robbery and 36 months in...
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