Upper Tribunal (Immigration and asylum chamber), 2018-04-13, PA/08187/2016
| Jurisdiction | UK Non-devolved |
| Date | 13 April 2018 |
| Published date | 30 April 2018 |
| Hearing Date | 19 March 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/08187/2016 |
Appeal Number: PA/08187/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08187/2016
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 19 March 2018 |
On 13 April 2018 |
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Before
UPPER TRIBUNAL JUDGE McWILLIAM
Between
the Secretary of State for the Home Department
Appellant
and
mr a j j
(ANONYMITY DIRECTION continued)
Respondent
Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Ms S Akinbolu instructed by Duncan Lewis & Co, Solicitors
DECISION AND REASONS
1. I shall refer to the Respondent as the Appellant as he was before the First-tier Tribunal.
2. The Appellant is a citizen of Gambia and his date of birth is 8 September 1990. He made an application for asylum and this was refused by the Secretary of State on 20 July 2016. The Secretary of State refused to revoke a deportation order in respect of the Appellant made on 14 December 2010.
3. The Appellant was born in Norway and lived in Gambia from the age of 3 to 9. He came to the UK with his mother and brother on 30 July 2002. He was granted leave to remain here until March 2002. In December 2008 he was granted indefinite leave on the basis of long residency. In May 2010 he was convicted of GBH and an offence of perverting the course of justice which related to the concealment of a weapon. He was sentenced to fifteen months imprisonment in respect of the GBH and one month to run consecutively in relation to the offence of perverting the course of justice. Following conviction, the Secretary of State made an order to deport the Appellant on 14 December 2010 (under Section 32 of the 2007 Act). He appealed against this and the First-tier Tribunal dismissed his appeal, finding that the Appellant had connections in Gambia through a maternal uncle and two aunts, and that his mother would be able to financially support him there until he found employment.
4. The Appellant made an application to revoke the deportation order. This was refused by the Secretary of State in December 2012. The Appellant appealed against this decision and his appeal was allowed by the First-tier Tribunal in October 2013. However, the Court of Appeal found an error and remitted the matter back to the Upper Tribunal. In August 2015, the Upper Tribunal dismissed the Appellant’s appeal against the decision to refuse to revoke the deportation order. This was refused and the Appellant’s appeal was allowed on 31 March 2013. This resulted in various further hearings, including before the Court of Appeal that ordered a rehearing before the Upper Tribunal. In a decision of 24 August 2015 the Upper Tribunal dismissed the Appellant’s appeal against the refusal to revoke the deportation order. The Appellant made further representations under paragraph 353 of the Rules which were refused. He was removed to Gambia in December 2015. He was refused entry by the Gambian authorities.
5. The Appellant appealed against the decision of 20 July 2016 to refuse to grant him asylum and his appeal was allowed by Judge of the First-tier Tribunal Colvin under Article 8 of the 1950 Convention on Human Rights. Judge Colvin dismissed the Appellant’s appeal on asylum grounds. The Appellant’s asylum claim was based on his sexuality. This was not accepted by the judge. However, the appeal against the decision to refuse to revoke the deportation order was allowed. The Secretary of State was granted permission to appeal by First-tier Tribunal Judge JM Holmes on 11 January 2018.
The Decision of the First-tier Tribunal
6. Judge Colvin recorded that the First-tier Tribunal in 2011, when dismissing his appeal against deportation, found that the Appellant had connections to Gambia through a maternal uncle and two aunts, and that his mother would be in a position to financially support him until he found employment. Judge Colvin found recorded that at that time there was no evidence that the Appellant’s mother had medical problems or was in any sense dependent upon the Appellant. The judge applied Devaseelan guidelines (Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702) indicating that his starting point was the findings as made by the Upper Tribunal, recording and commenting on them at [36]. These can be summarised as follows:-
1. The application’s offending was serious and the offence was not a single isolated offence.
2. In terms of the mother’s mental health the Upper Tribunal found:
“We do not consider that, taken overall, the mother’s condition and the role and involvement he [the Appellant] has in supporting that condition is at the level of a powerful or very compelling reasons”.
3. There was more evidence before the Upper Tribunal than before the First-tier at the earlier hearing that the uncle is in poor health and a pensioner and that one of the aunts is undergoing treatment for her mental health, the other aunt is elderly and in poor health.
4. The Appellant would be able to take up immediate residence in Gambia in an existing family household and be supported there for whatever period of time it takes, and that they could not reach a conclusion that there is no active tie to the country of citizenship.
5. The submissions overstated the position in respect with the degree to which the Appellant is integrated in the UK and the obstacles that he would face in Gambia. The link to Gambia was found not to be “tenuous” or “without meaning.
7. Judge Colvin found that the “most prominent matter that has changed since this decision” related to the Appellant’s mother’s health. He concluded from the various medical reports before him that she underwent a major operation on her brain on 19 October 2015 for a brain tumour.
8. The judge at [38] attached weight to several references in the reports to the Appellant’s mother being cared for by her son. In particular there was a letter from the University College London Hospital which was not dated reporting on her discharge after the operation which stated that her son is her main carer. This was also referred to in the discharge summary. The judge attached weight to a reference to whether the Appellant’s mother required a care home. She had apparently stated that she did not want to go into care if her cognitive state deteriorated and that her son was deported and she could not return home.
9. The judge noted at [39] the Appellant’s evidence that his mother had a carer who came to the house twice a day for 30 to 45 minutes to wash and dress her. However, he provided care the rest of the time including ensuring that she took medication three times a day and undertaking household chores such as shopping, cooking and cleaning. His evidence was that he tried to ensure that his mother went outside for a walk and her enjoyment of life was seriously limited by her continuing depression. The judge concluded at [40] that he was in no doubt that the Appellant was playing a significant role caring for his mother and that this represented a “major change since the Upper Tribunal Decision in August 2015”. The judge concluded that the level of support which included important emotional support was not something that is likely to have been or would be provided in the future to the Appellant’s mother in his absence. The judge concluded at [39]:
“There is therefore in my view a dependency which goes well beyond the normal physical and emotional ties of a mother and her grown-up son. And, from the Appellant’s own statements, I believe this dependency to be mutual in some respects as he says that he does not know how he himself would cope emotionally without her particularly as he has always lived with her even though he is now nearly aged 27.”
10. The judge found at [41] that there had been other changes since the Upper Tribunal’s decision. The judge found that this included the death of the uncle in Gambia and the removal of one of the aunts to Senegal in order to receive medical treatment. The judge found that there was one elderly aunt living in Gambia which, according to the judge, lessened the active tie in Gambia as found by the Upper Tribunal. The judge found that there was no obvious means of financial support for the Appellant on his immediate return which was a factor mentioned in a previous decision when his mother was running a small business from home. The judge stated that two years had passed and the Appellant had not committed any further offences. The judge considered that the Appellant was aged 19 in 2009 when the offence occurred, and that he had spent eight years since then and he had not committed further offences.
11. The judge considered the appeal under the Immigration Rules and made findings as follows:
“42. I have set out above those matters that need to be considered under paragraph 390 in relation to an...
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