Upper Tribunal (Immigration and asylum chamber), 2016-06-09, PA/01962/2015
| Jurisdiction | UK Non-devolved |
| Date | 09 June 2016 |
| Published date | 15 June 2017 |
| Hearing Date | 01 June 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/01962/2015 |
Appeal Number: PA019622015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA019622015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 1 June 2016 |
On 9th June 2016 |
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Before
UPPER TRIBUNAL JUDGE GOLDSTEIN
Between
fiatu loko
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms K Tobin, Counsel instructed by Messrs Shanthi & Co Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal by the Appellant, a citizen of the Democratic Republic of Congo (DRC), born on 4 January 1964 against the decision of First-tier Tribunal Judge B A Morris who following a hearing at Taylor House on 9 March 2016 and in a decision promulgated on 4 April 2016 dismissed the appeal of the Appellant against the decision of the Respondent dated 30 September 2015 to refuse his protection and human rights claims and to refuse to revoke a Deportation Order made by virtue of Section 5(2) of the Immigration Act 1971.
2. The Appellant’s immigration and criminal history were set out by the Respondent at paragraph 3 of her letter of refusal dated 30 September 2015 as follows:
3. The Appellant arrived in the UK illegally on 15 June 1991 and claimed asylum. He was interviewed on 3 April 1995 when he was interviewed after being caught entering the UK using a forged French ID card. On 6 June 1995 his asylum claim was refused. He appealed against the decision on 9 June 1995 and his appeal was heard on 12 July 1996. On 27 September 1996 his appeal was dismissed. On 31 October 1996 his application for Permission to Appeal (PTA) to the Tribunal was rejected.
4. On 8 January 1997 he was arrested for fraud and convicted and sentenced on 9 May 1997 to two years’ imprisonment for Conspiracy to obtain property by deception.
5. The Appellant became the subject of a signed Deportation Order (DO) on 30 December 1997. He appealed against the DO but failed to submit a valid appeal.
6. On 1 May 1998 the Home Office submitted to the Immigration Asylum Tribunal (IAT) that the Appellant’s appeal was an invalid appeal. His appeal was subsequently withdrawn on 27 July 1998. The Appellant became Appeal Rights Exhausted on 28 July 1998.
7. On 7 March 2001 the Appellant was convicted at Snaresbrook Crown Court for Fraud/Embezzlement for which he was sentenced to four years’ imprisonment. On 28 November 2001 the Appellant was sentenced to a further six months’ imprisonment to run consecutively.
8. On 20 January 2004 the Appellant’s solicitors submitted an asylum/human rights claim.
9. On 25 August 2004 a bail renewal application was received and on 30 November 2004 the Appellant’s bail was renewed until 22 February 2005.
10. On 16 January 2006 the Appellant’s MP requested an update on the case.
11. On 4 December 2008 the MP requested an update on the case and questioned the delay on the Appellant’s application for permission to work. A response was sent to the MP on 30 December 2008 informing him that permission to work had been refused.
12. On 15 April 2013 the Home Office wrote to the Appellant and offered FRS to which no response was received.
13. On 29 August 2013 the Appellant’s case was referred to Criminal Casework in Liverpool.
14. On 8 October 2014 the Appellant was sent a status questionnaire (ICD.3544) and letter with a One-Stop Notice paragraph. The Appellant completed this Questionnaire and returned it to Criminal Casework on 28 October 2014.
15. The Appellant failed to report in accordance with immigration reporting requirements on 15 January 2015 and was issued with a warning letter. He resumed reporting on 26 March 2015.
16. On 15 May 2015 a fax was received from him in which he provided a letter from North Middlesex University Hospital advising that he could not report on 14 May 2015 as he had attended a hospital appointment with them.
17. I should say at this stage that Permission to Appeal was purportedly granted by First-tier Tribunal Robertson on 28 April 2016. I say “purportedly” because clearly for the reasons the Judge gave, his intention was to refuse permission but on its face the application was “granted”.
18. I raised the matter with the parties’ representatives at the outset of the hearing on 1 June 2016. In that regard I noted that this was of course a matter already recognised by the Respondent in her Rule 24 response dated 17 May 2016.
19. The parties agreed with me that it must follow that I had now been seized with the hearing of this appeal and that the appropriate course was to proceed to deal with it on that basis.
20. It would however be as well, to set out below First-tier Tribunal Judge Robertson’s reasons that were clearly intended to lead to his refusal to grant permission. They were as follows:
“As to grounds at para 14-16, the Judge took into account the Appellant’s rehabilitation and the delay in the Respondent’s consideration of the Appellant’s further representations at [31-32]. Whilst the guidance in EB (Kosovo) [2008] UKHL 41 is raised in the grounds, this case related to an illegal entrant who had no leave to enter or remain. In the Appellant’s case, he was an illegal entrant who had never had leave to enter or remain and who also was sentenced to a term of four years’ imprisonment. The Judge was statutorily bound to apply the provisions of s.117 of the Nationality, Immigration and Asylum Act 2002 in the context of a private and family life built up when the Appellant had no leave and his wife, when they married, knew that he had no leave.”
21. I pause there because in the course of the hearing, Ms Tobin clarified to me that in fact the Appellant and his wife and their first child had been born in the DRC prior to coming to the UK.
22. First-tier Tribunal Judge Robertson’s reasons continued as follows:
“The fact that the Appellant made further submissions does not detract from the fact that he had no leave. As to paras 6-8 of the decision, the judge was entitled to find that notwithstanding the Appellant’s rehabilitation, there was still the public interest in deterring foreign criminals from committing offences [see 31]. Whilst another Judge may have reached a different decision, the Judge’s findings were open to him on the evidence before him and are not unreasonable or irrational.
At the grounds at paras 13-15 the Judge referred to the letter submitted by the Appellant’s child at [36] and his oral evidence at [19], including that the child could not imagine life without his father. However, on the evidence before him, the Judge found that he could continue to be cared for by his family in the UK if they did not choose to relocate to the DRC with the Appellant [37]; the fact was that his wife coped with younger children when he was in prison [see 23] and there is nothing to prevent the Appellant’s wife from taking responsibility for their child if they choose not to relocate. As to the grounds at paras 16-17, the Appellant’s wife and child are not being expected to relocate to the DRC; it is a decision for them. There was no independent evidence before the Judge that the Appellant was the child’s primary carer.
As to paras 18-23, the Judge is mindful of the education provision in the DRC (in the context of the decision which will face the family), and the circumstances of each family member are considered before the Judge concludes that the factors, taken singly or cumulatively, do not amount to compelling circumstances. The Judge has stated that he has considered the factors cumulatively and it cannot therefore be said that he has not. As stated previously, whilst another Judge may have reached a different decision, the Judge’s findings were open to him on the evidence before him and are not unreasonable or irrational.”
23. It is right to say that as recorded by the Judge in her decision, that in the course of the hearing before her, she was informed by the Appellant’s Counsel that asylum was not relied upon, that the Appellant accepted that he was not at risk on return to the DRC due to his membership of the UDPS.
24. Further, that the Appellant’s case was not argued on the basis of family life with his eldest son. In addition, as conceded in the Appellant’s Counsel’s skeleton argument that the Appellant could not bring himself within paragraphs 399 or 399A of the Immigration Rules or Section 117C(4) and (5) of the Nationality, Immigration and Asylum Act 2002.
25. It was accepted that there was a prima facie compelling public interest in deportation and that whilst the Appellant was English speaking and his wife was in employment, his circumstances fell within Section 117B(4) of ...
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