Upper Tribunal (Immigration and asylum chamber), 2015-06-18, DA/00159/2014
| Jurisdiction | UK Non-devolved |
| Date | 18 June 2015 |
| Published date | 01 September 2015 |
| Hearing Date | 11 February 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00159/2014 |
Appeal Number: DA/00159/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00159/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision and Reasons Promulgated |
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On 11th February 2015 |
On 18th June 2015 |
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Before
MRS JUSTICE THIRLWALL DBE
DR HUGO STOREY, JUDGE OF THE UPPER TRIBUNAL
Between
The secretary of state for the home department
Appellant
and
AFZAAL HUSSAIN
Respondent
Representation:
For the Appellant: Mr Tufan Home Office Presenting Officer
For the Respondent: Mr A Slatter
DECISION AND REASONS
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On 5th July 2014 a panel of the First Tier Tribunal (FTT) allowed an appeal by the respondent against a decision to deport him made by the Secretary of State pursuant to section 32 (5) of the UK Borders Act 2003 on 16th January 2014. The Secretary of State obtained permission to appeal from the Upper Tribunal. On 13th November 2014 the Upper Tribunal set aside the FTT’s decision because there had been a material error of law. The Upper Tribunal directed that the case should remain in the Upper Tribunal for a further hearing for the decision to be remade. That hearing took place before us on 11th February 2015.
Background
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The respondent is a national of Pakistan. He was born on 1st February 1959. According to the FTT decision he married Yasmeen Hussain, a British Citizen, in Pakistan on 5th May 1987 in an Islamic ceremony. On 10th August 1992 they were married in a civil ceremony in the United Kingdom. Mrs Hussain had 5 children in the UK from a previous marriage. The respondent and Mrs Hussain had 2 more children, a son born 19th January 1988 and a daughter born on 6th September 1990. On 19th September 1990 the respondent claimed asylum which was refused on 15th July 1992 with no right of appeal. On 5th February 1993 the respondent was granted 12 months’ leave to remain until February 1994. He was granted indefinite leave to remain on 1st July 1994. He and his wife were divorced in 1995/1996, the precise date is not apparent from the FTT determination.
Offences
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The trigger for the Deportation Order was the respondent’s conviction on 5th September 2011 of conspiracy to obtain a pecuniary advantage by deception for which he was sentenced on 7th October 2011 to a term of 5 years’ imprisonment. The date of the offence was 22nd August 2006. This was the respondent’s second conviction for an offence of fraud. In 2002 he had been convicted after a trial of conspiracy to defraud and was sentenced to 5 years’ imprisonment. There are links between the two offences. We take the facts from the OASys Assessment prepared on 11th October 2013 and from the sentencing remarks of the judge on 7th October 2011. We note there is an error as to the year of the first conviction. In the judge’s sentencing remarks he refers to 2007 but all the evidence points to it being in 2002 (we note, in particular, the evidence of the respondent’s children about their ages at the time their parents were sent to prison).
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In 2001 the respondent and other members of his family befriended a woman who was suffering from Alzheimer’s disease. They persuaded her to permit them to manage her affairs. Over a period which is not clear from the record, they managed her affairs for their own benefit. It appears that they obtained very large sums of money, possibly as much as £500,000 in total by selling her house and withdrawing money from various bank accounts. This was a serious offence, involving the manipulation of a very vulnerable individual who had placed her trust in the respondent. After a trial in 2002 in which the respondent’s wife and one of his sons were co-defendants all three were convicted. The respondent’s wife’s conviction was later quashed on appeal. The respondent was sentenced to 5 years’ imprisonment. Confiscation proceedings took place and an order was made against the respondent in the sum of £150,000. The respondent did not pay and he served a further 2 years’ imprisonment in default of payment of the confiscation order. It follows that he must have served at least 4½ years’ imprisonment as a result of the first conviction and the confiscation order.
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What happened next can be derived from the sentencing remarks of the judge who sentenced him in October 2011. At the time he was arrested for the fraud set out above Mr Hussain owned 60 Lady Margaret Road, the family home. Before the confiscation order was made, he granted power of attorney to his daughter, who then sold the house to her partner. The purpose of this arrangement was to put the family home beyond the reach of confiscation proceedings. In the event, the mortgage payments fell into arrears and the property was repossessed by the loan company, ‘Mortgage Business’; that company put the property on the market. On 18th April 2007 it was sold to Fahzaha Jaffree for the sum of £263,000. Ms Jaffree was a friend of the respondent’s son. She agreed, having been asked by the respondent’s son to buy the house, relying on false representations. The respondent was behind this scheme to retain the family home. Ms Jaffree claimed to be the owner of a consultancy with an annual income of some £68,795. She applied for and obtained a loan of £256,500, repayable over 25 years. The property was duly bought. In January 2009 the respondent was arrested along with his son for conspiracy to obtain a money transfer by deception. The sentencing judge described the offence thus; “this was a deliberate and a carefully executed conspiracy to obtain the sum of £250,025 by deception. The conspiracy was driven by the dishonest desire to hold onto property to which the family were not entitled. It was fraudulent from the outset. It was a single but carefully planned transaction. One payment was made, but the mortgage of course was for a period of some years”. When the house was sold, some of the proceeds went towards the confiscation order. We assume that is the sum of £80,000 to which the UT referred. The fact that this offence took place after the respondent had deliberately put his house beyond the reach of any confiscation order aggravated the seriousness of the offence, as did the fact that the respondent involved his son. On this occasion the respondent pleaded guilty. It is right to record that in the end the bank sustained no loss.
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In his letter to the Home Office of 2nd December 2011 the respondent sets out in detail his working life in the UK. He said, “I came to the UK in 1990 and never claimed any form of benefits up until 2002. Instead, I have made positive contributions to the economic wellbeing of this country, by starting my own business…I ensured the company was run in an ethical manner and I established positive working relationships with members of the British car auction and the general public”. He omits any reference to the first conviction or the conduct which led up to it. When dealing with the conviction which triggered the order for his deportation he said this, “although I have been convicted for a financial crime relating to my own assets (our emphasis), I feel this may have been the consequence of the guilt I experienced whilst financially being unable to support my family.” He then goes on to say that he is sorry for his actions and that he will not commit any crime again. The OASys Assessment, under the heading Offence Analysis records that Mr Hussain minimises his role in the second offence. He was, in fact, the prime mover and involved two much younger people to assist him.
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We see from paragraph 7 of the findings of the FTT, the respondent gave evidence that in 2002 he “went to prison for mortgage fraud”. This was a significant understatement. At paragraph 8 the following appears “in 2011 he was charged with mortgage fraud over a mortgage in the name of his stepson’s friend. It related to his old home which had been repossessed and his stepson had tried to repurchase it. Although he did not commit this offence, he pleaded guilty because he wanted his wife and children to be left alone. He was sentenced to 5 years’ imprisonment along with his stepson. The property was then sold on behalf of the CPS and the funds of £80,000 were paid towards his outstanding confiscation order and to the mortgage lender who made no loss as a result.” The last sentence was truthful. The rest of it was not. It wholly undermines his expressions of remorse and reveals him to be untruthful when giving evidence. We note that Yasser Hussain, one of the respondent’s sons, said that the second conviction was linked to the first conviction in relation to the mortgage. That is a phrase which was repeated in the FTT’s findings. What was overlooked, however, (not least because Mr Hussain had lied about it) was the fact that having committed one serious offence the respondent i) sought to put the house beyond the reach of the confiscation order and...
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