Upper Tribunal (Immigration and asylum chamber), 2018-05-21, DA/00449/2013
| Jurisdiction | UK Non-devolved |
| Date | 21 May 2018 |
| Published date | 11 June 2018 |
| Hearing Date | 24 April 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00449/2013 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00449/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 24th April 2018 |
On 21st May 2018 |
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Before
UPPER TRIBUNAL JUDGE LINDSLEY
Between
P F
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Mahmood, of Counsel, instructed by AM International Solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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The appellant is a citizen of Nigeria born in 1977. He arrived in the UK in 1990 with his younger sister when he was 13 years old. He stayed with his older sister who already lived in the UK as student, and on 30th March 2000 he was granted indefinite leave to remain.
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On 3rd September 2010 he was convicted of conspiracy to supply a controlled drug class A and sentenced to five years and eight months imprisonment: this was the index offence which led the respondent to make a decision to make a deportation order on 13th February 2013 under s.32(5) of the UK Borders Act 2007. The appellant appealed against the decision to deport him and this appeal was allowed on human rights grounds by the First-tier Tribunal in a decision dated 10th July 2013. However, the decision was found to contain errors of law, and was set aside and the remaking remitted to the First-tier Tribunal in a decision of a Presidential Panel made on 12th February 2014.
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On 21st March 2017 the appellant was convicted of a further offence of conspiracy to supply a controlled class A drug and was given a further custodial sentence, this time of four years imprisonment.
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His appeal against the decision to deport was reheard and dismissed by First-tier Tribunal Judge Metzer in a determination promulgated on the 6th June 2017.
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Permission to appeal against the decision of First-tier Tribunal Judge Metzer was granted by Upper Tribunal Judge Perkins on 1st November 2017 on all grounds on the basis that it was arguable that the First-tier judge Metzer had erred in law in failing to properly apply the decision of the European Court of Human Rights decision in Paposhvili v Belgium 13th December 2016 ECtHR given that it was arguably accepted by the First-tier Tribunal that the appellant suffers from sickle cell anaemia and that he would not be able to access treatment for this in Nigeria.
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The matter came before a panel of The Right Honourable Lord Boyd of Duncansby, sitting as an Upper Tribunal Judge and myself, Upper Tribunal Judge Lindsley, to determine whether the First-tier Tribunal had erred in law. We concluded that there had been an error of law for the reasons set out in our decision at Annex A.
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The matter now comes back before myself alone, pursuant to a transfer order, to re-make the decision. As a result of an enlargement of arguments by the appellant, a lack of clarity in relationship to important facts, and a key document being missing I gave post-hearing directions to both parties, and reserved my decision so that this information could be before me at the time of making of the decision on the appeal. These directions are attached as Annex B, and I confirm that I received and considered information on all issues requested.
Evidence & Submissions – Remaking
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I set out the evidence presented at the hearing in summary only. I heard oral evidence from the four witnesses as set out below, but not from the appellant who is in serving a prison sentence: it was decided by his legal team that it was not necessary to call him to give evidence.
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The first witness was Ms AO. She came to the UK in 1983 and is a naturalised British citizen, and the appellant’s older sister. She confirms that the appellant came to the UK with one of her younger sisters in 1990 and has lived here ever since. He came to live with her, and was present throughout his secondary schooling. In about 1995 the appellant met Ms MB and had an on/off relationship which led to the birth of his daughter CF in May 1996. The appellant has however had a constant input into CP’s life. In 2005 the appellant met MP, who is his current partner (although they did break up at one point). They have a daughter AF born in February 2007, and MP has an older son AC born in April 2001 from a previous relationship who is part of their family unit. MP and the appellant are engaged to be married. The appellant also has a son RF born in February 2015 from a short relationship with KT, and the appellant is committed to bringing up this son too.
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AO believes it allowed to remain in the UK that the appellant might be able to work in his own business and will behave well and rehabilitate.
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If deported AO believes that the appellant will not survive in Nigeria. This is because he has severe sickle cell anaemia which means that he needs constant medication and medical monitoring; is in and out of hospital; he has pain in his joints which is so intense that he collapses when he has a sickle cell crisis and then needs family members such as herself to do everyday tasks; and from time to time he also needs blood transfusions. In Nigeria the only family members left are the relatives of her mother’s sister, her maternal aunt, (who is 75 years old) and they are not close or willing to assist the appellant. She did not see this family when she last went to Nigeria for a friend’s wedding.
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AO explained that the appellant’s mother had not been able to attend the hearing because she was unwell with arthritis. She herself had not visited the appellant recently in prison due to her own health problems but was aware that his partner and children had done so. AO last saw the appellant in court in 2016.
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KT sets out that she is a British citizen and had a short relationship with the appellant in 2014/2015 from which she had her son, RF, who was born in February 2015. She confirms the appellant has spent a lot of time with RF and that she wants him to be part of RF’s life as RF loves him. Prior to being imprisoned in May 2016 the appellant took RF to be part of his extended family with his mother, partner and siblings. They are all on good terms. She has continued to take RF to see the appellant in prison, and last visited in March 2018. She would not be able to take RF to Nigeria, a place she has never been to and so her son’s relationship would be lost if the appellant is deported. She had only found out about the appellant being subject to deportation proceedings after she was pregnant with RF.
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MP gave evidence that she is a British citizen of Jamaican origin and has been in a relationship with the appellant since 2005. They have a daughter, AF, born in 2007 and the appellant has taken a parental role with her older son, AC, who was born in 2001. AC has ADHD and learning difficulties: the appellant has helped her with him a great deal. The family are all supportive of each other, and she spends time with the appellant’s mother, siblings and ex-partner MB who is mother of his older daughter CF.
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MP visits the appellant in prison with her children every other month, and last went to see him three weeks ago. The appellant also keeps in touch by phone calls, letters and DVDs with voice messages. In the period of their relationship the appellant has had two substantial periods of imprisonment, one in 2010-2013, and the other from March 2017. During the first one her mother had been able to help her with the children as she was not working but this is no longer the case.
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MP gave evidence that the appellant, when not in prison, has enable her to work full-time. He has a strong loving relationship with all four of the children. She and the appellant are engaged to be married. She says that her children have both been visibly anxious since the appellant was last arrested. She has anxiety, insomnia and symptoms of depression and is taking medication as a result of the situation with the appellant and his imprisonment and deportation. She has also had calls from his older daughter CF where she has been crying on the telephone.
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MP says that the conviction in 2015 for driving whilst disqualified took place in exceptional circumstances as he was stabbed and drove himself to hospital out of fear due to his sickle cell condition. She cannot explain the appellant’s other reoffending behaviour, but she knows he is truly sorry. She feels that he will not offend again as he is now a changed and broken man.
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MP says that to deport the appellant to Nigeria would be to impose a death sentence on him. His sickle cell anaemia means that he has constant crises and need constant medication. She says he takes about five different medications some of which are vitamins and the rest painkillers. When he has attacks his joints become so painful that he collapses and needs medical treatment at hospital and then family care. In February and March 2018 for instance the appellant had flare ups of his medical condition and had to take painkillers and rest, and he will have more medical check -ups this month. He is not...
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