Upper Tribunal (Immigration and asylum chamber), 2013-10-15, DA/00432/2013
| Jurisdiction | UK Non-devolved |
| Status | Unreported |
| Date | 15 October 2013 |
| Published date | 27 November 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/00432/2013 |
Appeal Number: DA/00432/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/00432/2013
THE IMMIGRATION ACTS
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Heard at Columbus House, Newport |
Determination Promulgated |
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On 17 September 2013 |
On 15 October 2013 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
bernard finlay
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Slatter, instructed by Leonard & Co., Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer
DECISION AND REMITTAL
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The appellant is a citizen of Zimbabwe who was born on 3 October 1971. He arrived in the United Kingdom on 14 April 1990 and was granted indefinite leave to remain on the basis of British ancestry. On 23 July 1997 he was convicted at Winchester Crown Court of murder and sentenced to life imprisonment. The appellant was notified of his liability to be deported and he claimed asylum. On 20 February 2013, the Secretary of State refused the appellant’s claim for asylum and humanitarian protection and under Art 8 of the ECHR. In that letter, the Secretary of State certified under s.72(9) of the Nationality, Immigration and Asylum Act 2002 that the presumption under s.72(2) of that act applied, namely the presumption that the appellant had been convicted by a final judgment of a particular serious crime and constituted a danger to the community of the UK applied. The Secretary of State also made a decision that s.32(5) of the UK Borders Act 2007 applied. On 19 February 2013, the Secretary of State signed a deportation order pursuant to the automatic deportation provisions of the UK Borders Act 2007.
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The appellant appealed to the First-tier Tribunal. That Tribunal (Judge Britton and Dr T Okitikpi) dismissed the appellant’s appeal. First, the Tribunal concluded that the appellant’s deportation would not breach Art 8. Secondly, the Tribunal concluded that, given that the appellant had never been involved in politics or a member of a political party, he could safely be returned to Zimbabwe and so dismissed the appeal on asylum grounds and under Art 3 of the ECHR.
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On 25 June 2013, the First-tier Tribunal (DJ Garratt) granted the appellant permission to appeal to the Upper Tribunal, primarily on the ground that the First-tier Tribunal had arguably erred in law in failing to adjourn the hearing in order that a report to be shortly produced by the Parole Board dealing with the appellant’s future risk to the community could be considered by the Tribunal. Permission was also granted on the basis that the Tribunal had failed to apply s.72 of the 2002 Act and make findings in relation to the presumption that the appellant constituted a danger to the community.
Scope of the Appeal
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In response to that grant of permission, in a rule 24 reply the Secretary of State stated at para 2 as follows:
“The respondent does not oppose the appellant’s application for permission to appeal and invites the Tribunal to determine the appeal with a fresh oral (continuance) hearing.”
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That is a familiar phraseology seen in rule 24 notices where the Secretary of State concedes the error of law and invites the Tribunal to find as such and to remake the decision.
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On behalf of the appellant, Mr Slatter, whilst accepting that the decision of the First-tier Tribunal in relation to Art 8 could not stand and would have to be remade, nevertheless maintained that the First-tier Tribunal’s decision in respect of the asylum claim also could not stand. In his oral submissions, he developed a number of arguments.
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Mr Slatter submitted that prior to the First-tier Tribunal hearing the Court of Appeal had granted permission to appeal against the country guidance case of CM (Zimbabwe) [2013] UKUT 00059 (see CM (Zimbabwe) v SSHD [2013] EWCA Civ 660 (13 June 2012)) which the First-tier Tribunal had applied in this appeal. The First-tier Tribunal should have adjourned the appeal in order to determine, when the transcript of the permission hearing was available, the scope of the challenge in the Court of Appeal to the country guidance in CM. He submitted, relying upon SG (Iraq) v SSHD [2012] EWCA Civ 940 at [77] per Maurice Kay LJ, that in granting permission in CM the Court of Appeal had indicated that the entirety of the country guidance was being challenged (see Laws LJ at [42]). As I understood Mr Slatter’s submission, in the light of this, his submission was that the applicable guidance that the First-tier Tribunal should have applied was not CM but rather the previous country guidance that was in force, namely RN (Returnee) Zimbabwe CG [2008] UKAIT 00083. As a subsidiary submission to that, Mr Slatter submitted that if the Tribunal had applied RN then the appellant should have succeeded.
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On behalf of the respondent, Mr Richards accepted that the First-tier Tribunal had erred in law in failing to adjourn in order to consider the soon to be produced report of the Parole Board. That report has, in fact, been produced and was filed with the Upper Tribunal under cover of a letter from the appellant’s solicitors dated 13 August 2013. Mr Richards accepted, therefore, that the decision in respect of Art 8 could not stand and had to be remade taking account of all the evidence, including the Parole Board’s report. However, he did not concede the other ground upon which permission to appeal was sought. In particular, he did not accept that the First-tier Tribunal’s decision to dismiss the appeal on asylum grounds and under Art 3 of the ECHR was wrong in law. Further, he did not accept that the First-tier Tribunal was obligated to adjourn the hearing pending the outcome of the Court of Appeal’s decision in the most recent country guidance case for Zimbabwe in CM (Zimbabwe) [2013] UKUT 00059.
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In my judgment, Mr Slatter’s submissions are unsustainable. He relied on a paragraph in the judgment of Maurice Kay LJ in SG (Iraq) at [77] which is in the following terms:
“In future, when a Country Guidance case is the subject of an application to this Court for permission to appeal, the Civil Appeals Office will seek to ensure that it is dealt with expeditiously. The application will not be referred to a Lord Justice for consideration on the papers. It will be listed as soon as is practicable before one or more Lord Justices as an oral application for permission to appeal, on notice to the Respondent. If permission is granted, the Court will endeavour to make clear whether it is the whole of the guidance which will be reviewed on the hearing of the substantive appeal or only part of it. If the latter, the Court will identify which part or parts, as was done by Carnwath LJ in PO (Nigeria v Secretary of State for the Home Department [2011] EWCA Civ 132, at paragraph 58. This should assist the tribunals and practitioners in relation to other pending cases. When permission to appeal has been granted, whether by the Upper Tribunal or by this Court, the Court will endeavour to arrange an early listing of the substantive appeal.”
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That paragraph has to be seen in the context of what was said by the court in SG (Iraq) as a whole. Maurice Kay LJ agreed with the judgment of Stanley Burnton LJ who gave the leading judgment. At [50] Stanley Burnton LJ endorsed the view of Mr CMG Ockelton (sitting as a Deputy High Court Judge) in the case of R (Qader) v SSHD [2011] EWHC 1765 (Admin) at [33]-[35] where he concluded as follows:
“33. ... I do not derive any assistance from submissions about what Pill LJ may have thought or intended in granting permission in HM, or from speculation about what the outcome of the appeal to the Court of Appeal may be. There are many reasons why permission may be granted, one (albeit only one) of which is to allow a higher court to give its approval to a process or decision that has been challenged. And it is not unknown for challenges in the Court of Appeal to country guidance decisions to be successful solely in relation to the specific appellant, leaving the guidance itself essentially unimpaired. No substantive conclusion can be drawn from the grant of permission; but nor on the other hand can it be assumed, as Mr Dunlop would have it, that the only issues to be considered by the Court will be related to the Tribunal’s procedure.
34. The proposition that a decision endorsed as country guidance by the President of the Immigration and Asylum Chamber of the Upper Tribunal loses its force by being challenged, or even by permission to appeal it being granted, I regard as entirely unarguable. The Tribunal has reached a reasoned decision after a review of a mass of relevant evidence. That conclusion remains binding within the terms of the Practice Direction, unless or until it is overturned on appeal or replaced by other guidance. And even if that were not so, it remains in the highest degree relevant to the issues...
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