Upper Tribunal (Immigration and asylum chamber), 2015-09-08, IA/32717/2014
| Jurisdiction | UK Non-devolved |
| Date | 08 September 2015 |
| Published date | 11 January 2016 |
| Hearing Date | 27 August 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | IA/32717/2014 |
Appeal Number: IA/32717/2014
IAC-AH-sc-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/32717/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 27 August 2015 |
On 8 September 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE MONSON
Between
mr Sharmarke Yussuf
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms C Robinson, Counsel instructed by Haringey Migrant Support Centre
For the Respondent: Mr P Duffy, Specialist Appeals Team
DECISION AND REASONS
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The appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge P-J S White sitting at Richmond on 23 December 2014) dismissing his appeal against the decision of the Secretary of State to revoke his indefinite leave to remain pursuant to Section 76 of the Nationality, Immigration and Asylum Act 2002. The First-tier Tribunal did not make an anonymity direction, and I do not consider that the appellant requires to be accorded anonymity for these proceedings in the Upper Tribunal.
The Grant of Permission
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On 10 June 2015 Judge Cox granted the appellant permission to appeal for the following reasons:
“1. The Appellant (A) is a citizen of Somalia. He seeks permission to appeal, two days out of time, against a decision of First-tier Tribunal Judge White whereby he dismissed his appeal against the Respondent’s (R’s) decision to revoke his indefinite leave to remain pursuant to section 76 of the 2002 Act. In light of the explanation given and representations made at Part B of the application form, I extend time in the interests of justice.
2. I have carefully considered the decision in relation to the grounds, settled by Counsel acting pro bono. The grounds in essence contend that the Judge erred in law by taking the view that he could not interfere with R’s exercise of discretion and had no power to review the exercise of a statutory discretion. Counsel for A points to section 83(3) of the 2002 Act in support of her contentions and distinguishes Ukus on the facts.
3. On consideration, I find the grounds to be arguable in the terms in which they are set forth. Had the Judge accepted he had jurisdiction to review the exercise of statutory discretion, the outcome of the appeal might have been different and therefore the arguable error, if it was such, was material.
4. The grounds disclose an arguable material error of law in the decision and permission is granted.”
The Factual Background
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The appellant’s date of birth is 1 January 1982. He entered the United Kingdom on 21 January 2004 and claimed asylum two days later. The asylum claim was initially refused, but the appellant was granted refugee status following a successful appeal. In accordance with the policy and practice at the time, his recognition as a refugee was coupled with a grant of ILR on 13 October 2004.
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On 14 September 2010 he was convicted of an offence of attempted wounding and sentenced to two years’ imprisonment. On 28 March 2011 he was served the notice of intention to deport him. He made no representations in response to that. On 4 May 2011 he was served the notice of intention to revoke his refugee status, and notice of that intent was served on the UNHCR on 9 June 2011. On 22 April 2014 the respondent informed the appellant that she was not pursuing the revocation of his refugee status, but was proposing to revoke his ILR, pursuant to Section 76(1) of the 2002 Act. On 22 July 2014, no response having been received, the appellant’s ILR was revoked.
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The letter of 22 April 2014 rehearsed the appellant’s immigration history, including the fact that on 28 March 2011 he had been served with a notice of liability to automatic deportation which included a Section 72 warning. He was liable to deportation, but could not be deported for legal reasons. So the Home Office was proposing to revoke his ILR in view of the fact that Section 76(1) of the 2002 Act applied.
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This was reiterated in the letter dated 22 July 2014 explaining the reasons for revoking the appellant’s ILR. In the same letter it was said that the appellant had been convicted of a crime which the respondent believed to be sufficiently serious to warrant his deportation. While he could not be deported for legal reasons this did not mean that his crime was not particularly serious. Reference was made to Section 72(2) of the 2002 Act, and the respondent quoted from the judge’s sentencing remarks. In light of the above, the Home Office was satisfied that, subsequent to him obtaining ILR, his conduct had been so serious that it warranted the revocation of his ILR status.
The Hearing Before, the Decision of, the First-tier Tribunal
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The appellant was not represented before the First-tier Tribunal, but had the assistance of a McKenzie friend.
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The appellant gave evidence that he was being good now, attending school and college and happy with his life. He had given up alcohol and he was a different man. Miss Ryan, who worked at the hostel where the appellant lives (and who was operating as the appellant’s McKenzie friend) told the judge that the appellant had been at her hostel since 2012. Living in hostels could be challenging, but he was coping generally. He could eventually go on to independent living, and he could eventually get a job with the help of their employment team.
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In his subsequent decision, the judge noted that the appellant had not offended again since the index offence which had triggered the decision to revoke his ILR. He continued:
“13. The letters he produced are from a Key Skills tutor and project worker at St Mungo’s. Both indicate that the appellant has made progress while there, and the project worker in particular notes that his previous problematic behaviour was made worse by his level of alcohol use, a point clearly made in the sentencing remarks. She noted that over the last several months (her letter is dated 28th October 2014) the appellant has not been seen drinking or under the influence of alcohol during the day, and his alcohol use is no longer a problem.
14. I note from the sentencing remarks that the offence took place in a hostel for prisoners on licence, and that it was not the appellant’s first offence, or indeed his first offence of violence. In 2007 he had been sentenced to 2 years imprisonment for another wounding offence, that being a glassing, and again committed when drunk. It seems clear that the appellant has a significant history of offending, and problems with alcohol, against which the improvement noted at St Mungo’s is clearly to his credit.
15. The scope of this appeal is, however, very limited. Section 76 of the 2002 Act provides that indefinite leave may be revoked where a person is liable to deportation but cannot, for legal reasons, be deported. The appellant is still a Somali national. He has a conviction for which he was sentenced to 2 years imprisonment, which is over the threshold for automatic deportation set by section 32 of the Borders Act 2007, but he retains refugee status. He is thus shown to be within the parameters set by section 76.
16. Section 76 is clearly a discretionary power, and the decision letter makes clear that the respondent appreciated that and considered her discretion, concluding that the seriousness of the offence justified the decision to revoke. There might be scope for an argument that, certainly by the time the decision was finally taken, the appellant had changed so that overall discretion could or should have been exercised in his favour, although given the nature of the offence and the statutory presumption in section 72(2) it may be doubted whether that argument would succeed. This Tribunal has, however, no power to review the exercise of that statutory discretion. The grounds on which the Tribunal can act are set out in section 84 of the 2002 Act, and are that the decision is not according to law (from various sources, including Immigration Rules, or otherwise) or that the decision maker should have exercised differently a discretion conferred by immigration rules. The expression “immigration rules” is defined in section 113 as meaning rules made under section 1(4) of the Immigration Act 1971, and clearly does not extend to other statutes.
17. I am satisfied that the respondent has shown that the power to revoke indefinite leave existed in this case, and that she was aware that the power was discretionary and gave consideration to the exercise of that discretion. I am further satisfied that I have no power, even if I were of the view that it was wrong, and for the avoidance of doubt I am not of that view, to review the way the discretion was in fact exercised. Accordingly the appeal must fail.”
The Hearing in the Upper Tribunal
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At the hearing before me, Ms Robinson...
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