Upper Tribunal (Immigration and asylum chamber), 2014-04-01, DA/01015/2013
| Jurisdiction | UK Non-devolved |
| Date | 01 April 2014 |
| Published date | 17 April 2014 |
| Hearing Date | 17 March 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/01015/2013 |
Appeal Number: DA/01015/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01015/2013
THE IMMIGRATION ACTS
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Heard at Royal Courts of Justice, Strand |
signed: 24 March 2014 |
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on 6 February and 17 March 2014 |
sent out: on 01 April 2014 |
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Before
President of the Upper Tribunal, Mr Justice McCLOSKEY (on 6 February)
Upper Tribunal Judge John FREEMAN
Upper Tribunal Judge Mark O’CONNOR (on 17 March)
Between
AMARJIT SINGH GILL
appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
respondent
Representation:
For the appellant: James Collins, counsel instructed by TA Capron & Co, Grays, solicitors
For the respondent: Mr Nigel Bramble (on 6 February); Mr Steven Walker (on 17 March)
DETERMINATION AND REASONS
INTRODUCTION
What follows is the decision of the Tribunal, written by and dealing with the following:
paragraphs 1 – 29: McCloskey J, setting aside the decision of the first-tier panel for error of law;
paragraphs 30 - 73: Judge Freeman, giving our reasons for re-making it as appears below.
Though the first-tier panel made a direction for anonymity, there was no application before us for that to be continued, and, if there had been, we should have refused it. There are no children involved, except for the grandchildren, whose interests are taken care of by the initials used for them, to be followed by anyone else who refers to them. The appellant’s article 2/3 case, on which the original application for anonymity was based, was withdrawn before us.
1. This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “Secretary of State”) on 13th May 2013, determining to deport the Appellant from the United Kingdom. The Appellant appealed. By its determination promulgated on 23rd October 2013, the First-Tier Tribunal (the “FtT”) allowed his appeal on human rights grounds, giving effect to Article 8 ECHR. The Secretary of State appeals, with permission, to this Tribunal.
BACKGROUND AND CHRONOLOGY
2. The basic facts are uncontentious. The Appellant is of Indian nationality and is now aged 58 years, having been born on 3rd December 1955. The stand out fact in the appeal matrix is that he murdered his wife on 27th January 1999. On 31st January 2000, he was convicted of this murder and sentenced to life imprisonment. A tariff of 14 years was determined. This expired on 1st February 2013. The Appellant continues to be detained in closed conditions. The evidence establishes that he had become depressed and had begun drinking heavily for some time prior to the murder. During the 22 years of the marriage there were several incidents of domestic violence, with some associated police interventions. The violence perpetrated by the Appellant against his wife became progressively worse, featuring physical injuries and medical treatment.
3. At the time of the murder, the Appellant’s spouse had expressed a request for a divorce and her intention to leave. She began making appropriate preparations. Three days later, during the morning, the Appellant purchased alcohol from a local retail outlet. Shortly before 2pm, he informed his neighbours that his wife was dead. The cause of death was a single stab wound to the neck. The victim also had a number of deep and substantial cuts, mainly to her left forearm and hand, consistent with defensive injuries inflicted by a knife. A receipt confirming the purchase of a lock-knife by the Appellant some weeks previously was found. The Appellant stated that he had consumed half a bottle of vodka, while denying having killed his wife. This followed a trial during which the Appellant’s defence had been that he was too drunk to form the requisite murderous intent. He admitted manslaughter, pleading the defences of diminished responsibility and provocation to the murder charge. He alleged that his wife had taunted him with an affair, giving rise to morbid jealousy. He was convicted unanimously after the jury had deliberated for less than one hour. The sentencing Judge stated:
“Amarjit Singh Gill, last year, armed with a knife, when, I am quite satisfied, you had been drinking but were not so drunk that you did not know what you were doing, you took the life of your wife who had led a wholly blameless life looking after you and your family and you drove that knife through her neck and took her life.”
4. In the trial Judge’s report, it was recorded that the Appellant was an alcoholic. The expert evidence upon which he sought to rely provided no substance to his claim of diminished responsibility. The trial Judge commented:
“The Defendant was regularly violent and bullying towards his wife. It did appear that his drunken behaviour had deteriorated after a short spell in prison for driving with excess alcohol. Prior thereto he was of good character but he had lost his job and had become depressed.”
The Judge recommended a tariff of 14 years with which the Lord Chief Justice concurred.
5. As regards the history, the following additional material facts are either proved or admitted:
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Having entered the United Kingdom on 27th February 1977 with limited leave, the Appellant was granted indefinite leave to remain on 17th April 1989.
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He married his wife in April 1977 and there are three children of the marriage who are now aged 35, 32 and 24 years respectively.
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The Appellant worked as a clothing trader in London until 1996 when he was sentenced to three months imprisonment for driving with excessive alcohol.
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This was followed by a failed business venture and a conviction for common assault on his brother.
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Complaints to the police of assaults upon his wife dated from January 1997.
THE CURRENT FAMILY CIRCUMSTANCES
6. None of the children is married. The oldest, a son, is single. His visits to his father in prison were irregular and infrequent. His level of telephone contact with his father is unclear. In 1999/2000, this son brought his mother’s ashes to India. Paragraph 30 of the FtT determination records the following:
“…. His cousin approached him. This was his mother’s nephew; he said it was tragic and he felt sorry for him but his side of the family had been talking about it and were looking for revenge.”
In his witness statement, he said something rather different:
“I do however have a genuine fear that if my father is returned to India he is very likely to be killed in retaliation of my mother’s death by her family who have expressed their intention to harm him should he return to India.”
He suggested that it would be difficult for his father to relocate to another area of India on account of his vulnerability and severed ties. He confirmed that most of his mother’s family lived in the United Kingdom.
7. The second of the two sons is in a stable relationship within which three children have been born. He claimed that his maternal aunt continues to reside in the village from where his father originated. This aunt has male and female siblings. In his statement he suggested that they “… would be intent on revenge for the honour of their family …..” The third of the children, the only daughter, was aged 9 years when the murder occurred. She attested to the previous violence. She has graduated and is training to be a forensic psychiatrist. She too expressed concerns about a revenge family killing. In common with her brothers, she has maintained telephone contact with her father in prison. All three children have forgiven the Appellant and plan to provide him with a home following his release from prison.
8. On behalf of the Secretary of State, there was no challenge of substance to the evidence rehearsed in the immediately preceding paragraphs. We make findings of fact accordingly. Any discrepancies in the evidence of the three children, for example in the form of inconsistencies between their written statements and their testimony to the FtT, were of minor dimensions and Mr Bramble on behalf of the Secretary of State did not seek to magnify them.
9. Turning to the evidence relating specifically to the Appellant, we make the following findings:
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He is truly remorseful and repentant.
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He has solemnly resolved to renounce alcohol for the remainder of his life. His ability to give effect to this resolution is not entirely clear.
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The Appellant’s limited command of the English language has hindered his progress in prison. In particular, offence focused work – which would include victim awareness and alcohol awareness courses – has been hampered and delayed.
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In its most recent report, dated July 2013, the Parole Board declined to either direct the Appellant’s release or recommend his transfer to open prison conditions. It recorded his behaviour throughout his...
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