Upper Tribunal (Immigration and asylum chamber), 2015-09-01, DA/01126/2014
| Jurisdiction | UK Non-devolved |
| Date | 01 September 2015 |
| Published date | 23 December 2015 |
| Hearing Date | 29 June 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/01126/2014 |
Appeal Number: DA/01126/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01126/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 29 June 2015 |
On 1 September 2015 |
|
|
|
Before
UPPER TRIBUNAL JUDGE O’CONNOR
DEPUTY UPPER TRIBUNAL JUDGE MURRAY
DEPUTY UPPER TRIBUNAL JUDGE SYMES
Between
BINOD GURUNG
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr C Howells (counsel instructed by N C Brother Solicitors)
For the Respondent: Mr S Kandola (Senior Home Office Presenting Officer)
DECISION AND REASONS
-
This is the appeal of Binod Gurung, a citizen of Nepal born 11 February 1988, against the decision of 5 June 2014 to make a deportation order against him under the UK Borders Act 2007.
-
The Appellant arrived in the United Kingdom when he was aged sixteen, being granted indefinite leave to enter on 13 November 2006, to join his father who had himself been granted indefinite leave here earlier in 2006 having served as a Gurkha soldier in the British Army for fifteen years, retiring on 2 May 1995.
-
The Appellant has a history of drug offences in the United Kingdom arising particularly from incidents in July and November 2013. The sentencing judge noted that he had pleaded guilty to offences committed in July 2013 on the basis that he was a heroin user awaiting rehabilitation, in debt to his supplier who was threatening him. During the period between entering the plea and sentencing he was again arrested, on 21 November 2013, for possession of heroin and crack cocaine with intent to supply. On 10 January 2014 he was sentenced to 36 months imprisonment, receiving consecutive sentences of 15 and 21 months for the two offences.
-
This criminality having come to the attention of the Secretary of State, she wrote to him on 24 February 2014 to say that in the light of the severity of his offending, she deemed his deportation as conductive to the public good, and intended to pursue automatic deportation proceedings against him under the UK Borders Act 2007 unless he could establish that one of the exceptions provided for in section 33 thereof applied to him.
-
On 11 March 2014 the Appellant's representatives wrote to the Respondent putting a human rights claim based on the Appellant’s private and family life here. He lived in Basingstoke with his family. He had no close family remaining in Nepal, and no social or economic support network there; he had lost whatever social contacts he may have previously held there, not least because many of his former schoolmates were now based in the United Kingdom where they had moved and settled. His family had retained no property in the country and he would accordingly struggle to establish himself on a return given that he lacked resources of his own and there were limited economic and employment opportunities in Nepal. He had consistently lived with his parents and been financially supported by them. His offending had been motivated by his own addiction and his fear of his own drug dealer who supplied him, to whom he had fallen into debt. It was argued that the legality of his expulsion should not be assessed without regard to the historic injustice that had afflicted Gurkhas and their dependants, for had he been able to come to the United Kingdom before 2006, he would have had the opportunity to obtain British citizenship sooner: his father had, because of the timing of his own arrival here, been unable to naturalise as a British citizen until the Appellant was an adult, by which time his offending precluded any application for citizenship in his own right.
-
Unswayed by those representations, on 5 June 2014 the Secretary of State made a deportation order against the Appellant, giving reasons dated 11 June 2014 in which she found that the Appellant’s departure from the United Kingdom would not disproportionately interfere with his private and family life. He presented a significant and escalating risk of harm to potential victims, bearing in mind his conduct between plea and sentencing; this was of grave concern and it was not considered reasonable for the public to face the risks he posed. Drugs offending had a wide impact on the health and morals of the community at large bearing in mind the crimes and anti-social behaviour that followed in its wake. He had spent his youth and formative years in Nepal, where he spoke the language, and the seven and a half years he had lived in this country were not accepted as implying that he had severed all of his social ties abroad, albeit that it was accepted that he lacked family support in Nepal now; any friendships established here could be maintained via modern means of communication. The decision maker concluded that there were no exceptional circumstances present to suggest that his removal would be disproportionate to any private and family life established here and so he did not fall within the human rights exception to deportation under section 33 of the UK Borders Act 2007.
-
The Appellant brought an appeal against that decision which was determined on 17 December 2014 by Judge Rothwell and Ms Singer as a Panel in the First-tier Tribunal. He gave evidence stating that he was single and had no children, was educated with qualifications from Nepal, where he still had friends; his father had no siblings and his mother’s siblings were in Hong Kong and the United Kingdom; his grandparents were either deceased or in this country. He had worked in the United Kingdom for a Sainsbury’s warehouse and McDonalds, and paid tax and national insurance. When he had lived at home and worked he had given his parents some money; he had a good relationship with them and they still saw one another for meals and on Sundays. His father had helped him with attending a detoxification centre for three to four weeks. He had taken drugs courses in prison; he felt that he was a changed person. He had taken cannabis for around two years before coming to the United Kingdom. Once here, he sold cocaine to close friends to fund his own habit.
-
His father gave evidence and said that he had been discharged from the British Army in the United Kingdom and then went to Nepal for four months, and then onto Hong Kong, before returning to settle here. He had arrived in 2006, the Appellant arriving some eight months later, and his own wife some six or seven months thereafter. He had last been in Nepal in 2009 when he sold his property. His wife had been there some years ago. He and the Appellant had previously lived separately for many years as his son had been at boarding school. The Appellant had first gone to rehabilitation for drug use in 2010, paid for by the local council; he could not say when he resumed his addiction or why he had taken drugs in the first place. He did not know the Appellant's friends. The Appellant had been in trouble for shoplifting in 2009, for possessing drugs in 2011, and for supplying Class A drugs in 2012. The family had had to pay £400 to a gangster; a CCTV camera was subsequently installed at their home for security reasons after they told the police.
-
The Panel observed that very little information had been forthcoming about the Appellant's personal circumstances. They nevertheless found that he had formed a private life here given his lawful residence since 2006, his relationships with his parents and brother, and his work. They did not accept that he could be said to have maintained family life here, however, as whilst he had intermittently cohabited with his parents he had not continuously been emotionally and financially dependent on them. Whilst he had sometimes contributed to the family income, he had retained a degree of financial independence, and had not lived with his parents whilst at boarding school or whilst his father was moving around and settling his affairs after leaving the Army. He retained social and cultural ties in Nepal where he had lived for most of his life and been educated; and his social links in the United Kingdom included socialising with members of the diaspora community.
-
They noted that an OASys report of 18 June 2014 confirmed that the Appellant had used cannabis before arriving here. He had begun to smoke and inject heroin and cocaine. He had bought and sold drugs for his dealer when he could not afford to otherwise fund his habit. He had told the report’s writer that his use of drugs was a big mistake and he appeared motivated to avoid reoffending. The writer of the report gave him a low score for re-offending risks.
-
Central to the Appellant’s case before the First-tier Tribunal was his contention that he was only liable to deportation because he was not a British citizen, and he had been preparing a citizenship application up to the time that he offended, his parents...
To continue reading
Request your trial