Upper Tribunal (Immigration and asylum chamber), 2019-02-06, PA/13530/2017
| Jurisdiction | UK Non-devolved |
| Date | 06 February 2019 |
| Published date | 07 March 2019 |
| Hearing Date | 29 January 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/13530/2017 |
Appeal Number: PA/13530/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13530/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 29th January 2019 |
On 6th February 2019 |
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Before
LORD BECKETT
SITTING AS AN UPPER TRIBUNAL JUDGE
UPPER TRIBUNAL JUDGE SMITH
Between
SECRETARY OF STATE FOR the HOME DEPARTMENT
Appellant
and
HW
[ANONYMITY DIRECTION MADE]
Respondent
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Whilst no anonymity direction was made earlier in the proceedings, we now make an anonymity direction because the case involves a child. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent.
Representation:
For the Appellant: Mr E Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr M Allison, Counsel, instructed by Duncan Lewis Solicitors
DECISION AND REASONS
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The Secretary of State appeals against a decision of the First-tier Tribunal (FtT) to uphold HW’s (the claimant) appeal, on human rights grounds, against the Secretary of State’s decision of 5 December 2017 to refuse his claim against a deportation order being maintained.
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The Secretary of State has sought to deport the claimant on the basis that he is a foreign criminal within the meaning of UK Borders Act 2007, section 32, and as such liable to automatic deportation.
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The claimant is a national of Afghanistan born in January 1994 who entered the UK unlawfully on 30 March 2007 at the age of 13. He was refused asylum but granted discretionary leave to remain and placed in foster care in which context he repeatedly raped a boy of 7 who was in the same foster placement. On 26 March 2008 he was convicted of five counts of rape of a child under 13 and sentenced to a custodial term of detention of 4 years to be followed by 2 years subject to supervision.
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From March 2009 onwards, he began to be served with notices of liability to deportation. Ultimately in 2014, he was refused permission to appeal further against service of a notice, on 29 August 2012, to make a deportation order.
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Having married and had children in August 2013 and July 2014, he sought a review of the previous decisions in light of the birth of his second child. This was unsuccessful. A third child was born in June 2015. In November 2016 the Secretary of State refused to revoke the deportation order and on 17 March 2017 refused his human rights claim. The Secretary of State agreed to reconsider that decision and that reconsideration concluded with the decision of 5 December 2017.
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At the date of the hearing before her, the FtT Judge (FtTJ) was made aware that a fourth baby was due in August 2018. We learned that the baby was born, is now aged 5 months and is currently in hospital.
Determination of 28 May 2018
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The claim for asylum and humanitarian protection was refused and the claimant made no cross appeal in that regard and it is not necessary to set out the associated reasoning.
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At paras 21 to 26 the FtTJ referred to relevant law including ECHR article 8, part V of the Nationality, Immigration and Asylum Act 2002 and associated Immigration Rules before noting certain case-law in paras 27 and 28. At para 33 the evidence available and heard is set out and at paras 35 to 43, under the heading “Factual Findings” some evidence, assessment of it and the conclusions reached are set out. Following discussion of country information and asylum, the FtTJ returned to consider the article 8 claim at paras 56 to 66.
Relevant facts - paras 35-43
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The sentencing judge had indicated that the offences were so serious that, as an adult, he would have been sentenced to 12 years but also considered that there was considerable potential for rehabilitation.
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In para 36 the FtTJ noted that there was uncertainty about the claimant’s true age and records that the Secretary of State accepted that he was 13 when he arrived in the UK and at the time when he committed the offences. She reports that in the trial there was medical evidence which suggested a possible range of ages, but the trial judge had treated him as being 14 at the time of the offences and 15 at the date of conviction. The FtTJ concluded that whilst he may have been sexually mature, the claimant was socially and morally immature when he committed his crimes.
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In December 2011, a social worker had reported that detention had kept the claimant away from wider society such that he had no regular contact with the Afghan community and he looked to British citizens for guidance and support so that when his personal identity was established during his significant teenage development, it took place with British people in Britain.
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Following release from custody, the claimant studied at college where he met his now wife JB who was 19 at a time when the claimant must have been almost 18. They developed a relationship which led to her being assaulted by her father and made homeless. The couple moved in together in May 2012 and went through an Islamic marriage ceremony in November 2012. Children were born in August 2013, July 2014, June 2015 (and August 2018.)
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JB was born into a Bangladeshi family in the north of England, but she is a naturalised British citizen. Her father is now reconciled to JB and supports her, as does one of her siblings, but she has no contact with her mother and her other seven siblings. JB works in a shop and the claimant looks after their children to allow her to do so.
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The family was reviewed by social services in November 2016. Social worker Sue Wells noted that the claimant had been supervised by probation teams on licence and had been compliant in revealing his criminal history to his partner, colleges and cricket teams. His education record was exemplary and he was well thought of by those he engaged with in clubs and other groups. Despite the claimant being in immigration detention for 15 months from March 2015 to June 2016 the relationship endured and Ms Wells noted a close and mutually supportive relationship.
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Ms Wells had been involved in a child protection case conference after the birth of the first child which concluded that the claimant could live in family with his child despite her being a child under 16. A family support plan was put in place but no longer deemed necessary when the second child was born from which the FtTJ inferred that police and social services were confident that the claimant would not offend, at least not against his own children. Ms Wells observed a strong attachment between the children and the claimant.
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Other agencies concluded that the claimant presented low risk and no longer needed supervision by the end of 2016 and that his compliance with sex offender notification requirements had been good.
FtTJ assessment of article 8, paras 56-66
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The FtTJ recognised that considerable weight must be accorded to the gravity of the offences which will have caused lifelong damage to the victim. The custodial term of 4 years brought the claimant into the most serious category of offender in section 117C of the 2002 Act (para 56). At para 57 she noted that the claimant continued to be in denial about having committed the crimes which she recognised could inhibit rehabilitation.
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At para 58 the FtTJ considered the risks of further offending which had been professionally assessed as being low. She noted that the offences had been committed when the claimant had undergone a turbulent time in which he had lacked guidance from family or others. General sentencing principles include a recognition that the culpability of young offenders is lower than it is for adults and that rehabilitation is a more prominent consideration. Noting also that the claimant is now in a stable heterosexual relationship, she concluded that whilst reoffending cannot be excluded, it was unlikely. The FtTJ found little weight attached to the claimant’s private life (para 59.)
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At para 60, the FtTJ accepted that the claimant has substantial and enduring family life with JB and their children. In para 61 she concluded that for them to go to Afghanistan would be very hard. In para 62 she concluded that for JB to stay behind with three or four young children, cut off from her wider family and without moral or practical report would be hard both financially and socially, even allowing for state financial support.
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It would be harsh for the children to stay with their mother in the UK without the claimant and it would be in their best interests to be with both parents in the UK, (para 61).
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We narrate paras 65 and 66 in full:
“This tribunal must weight and then balance the various factors of state interest and private and family life. There is undoubted public interest in not permitting criminals to remain. The offence was very serious as reflected in the sentence and the ongoing disability (in social and employment terms) of being on the sexual offences...
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