Upper Tribunal (Immigration and asylum chamber), 2019-02-22, PA/10081/2017
| Jurisdiction | UK Non-devolved |
| Date | 22 February 2019 |
| Published date | 03 April 2019 |
| Hearing Date | 08 February 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/10081/2017 |
Appeal Number: PA/10081/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10081/2017
THE IMMIGRATION ACTS
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Heard at: Field House |
Decision and Reasons Promulgated |
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On: 8 February 2019 |
On: 22 February 2019 |
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Before
UPPER TRIBUNAL JUDGE KEBEDE
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
DS
(Anonymity Direction made)
Respondent
Representation:
For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Mr D Chirico, instructed by Birnberg Peirce & Partners
DECISION AND REASONS
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This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing DS’s appeal, to a limited extent, against the respondent’s decision to refuse his protection and human rights claim further to a decision to deport him pursuant to section 32(5) of the UK Borders Act 2007.
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For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and DS as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.
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The appellant is a citizen of Jamaica, born on 7 November 1994. He arrived in the United Kingdom on a visitor visa on 9 August 2004, aged 10 years, to join his mother in the UK. No applications for further leave to remain were made. From July 2009 to January 2014 the appellant accumulated 10 convictions relating to 16 offences. On 3 June 2011 he was served with notice of liability to deportation and responded by claiming to be at risk on return to Jamaica. He was interviewed about his claim and then served with a further notice of liability to deportation on 14 October 2013.
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On 15 January 2014 the appellant was convicted of blackmail, possessing a knife blade/ sharp pointed article in public and theft from a person and was sentenced to a total of 6 years’ imprisonment. On 2 July 2014 and 26 August 2014 the respondent invited the appellant to seek to rebut the presumption under section 72 of the Nationality, Immigration Act 2002 that he had been convicted of a particularly serious crime and constituted a danger to the community. The appellant failed to respond. On 14 January 2015 the respondent issued a deportation order pursuant to section 32(5) of the 2007 Act and on 15 January 2015 the respondent made a decision to refuse the appellant’s protection and human rights claim. The respondent, in that decision, certified the appellant’s human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002. Following a judicial review claim challenging the certificate, the decision and certification were maintained in a further decision of 16 June 2015. However, the respondent subsequently withdrew the decision to certify the appellant’s claim under section 94B following the Supreme Court decision in Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 42 and in light of the appellant’s medical condition.
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A new decision was made by the respondent on 21 September 2017, refusing the appellant’s protection and human rights claim, but not certifying the claim under section 94B. In that decision the respondent certified that the presumption in section 72(2) of the 2002 Act applied to him and his asylum claim was refused on that basis. The respondent considered in any event that the appellant was at no risk on return to Jamaica, that he was not entitled to humanitarian protection and that his removal would not breach his Article 3 human rights. The respondent considered submissions made on 5 September 2016 in regard to the appellant’s health, noting that on 1 September 2015 he had contracted TB meningitis whilst serving his custodial sentence, that he had been admitted to hospital with a life-threatening condition on 26 August 2015 and that he had been placed in an induced coma. He had had a shunt inserted in his head in a procedure on 14 October 2015, to relieve pressure from the TB meningitis, and had been receiving follow up treatment from a neurosurgeon. The respondent considered that the appellant no longer had TB and that he could receive adequate treatment in Jamaica. It was considered that Article 3 was not engaged on that basis or on the claimed risk of suicide. As for Article 8, the respondent noted that the appellant had no claim to any relationships in the UK and had no children and that he had been living in the UK without any lawful leave. It was considered that there were no very compelling circumstances which outweighed the public interest in his deportation and that his deportation would not, therefore, breach his Article 8 rights.
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The appellant appealed against that decision. In the grounds of appeal to the First-tier Tribunal it was asserted that the appellant was at risk on return to Jamaica from gang members, that his Article 3 rights would be breached if he were deported on health grounds and that his deportation would breach his Article 8 rights on the grounds of family and private life as well as his serious mental and physical health issues. It was also asserted that the appellant had ongoing civil proceedings for clinical negligence due to him contracting TB meningitis whilst imprisoned, which required him to be present in the UK to meet with his legal team and to be assessed by medical experts, and that his removal whilst those proceedings were pending would breach his Article 6 rights.
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The appellant’s appeal was adjourned on more than one occasion in order to await medical reports which had been requested for the civil proceedings. The appeal then came before First-tier Tribunal Judge Onoufriou on 11 July 2018. The appellant was represented at that hearing by Mr Chirico. Mr Chirico produced a skeleton argument for the hearing in which he submitted that the appellant’s deportation would be in breach of the respondent’s obligations under the Human Rights Act 1998, in particular the decision to remove the appellant prior to the conclusion of his civil litigation would breach his Article 6 rights; the decision to remove the appellant prior to the conclusion of his civil litigation would breach his Article 3 and 8 procedural rights and the decision to remove the appellant was a breach of the respondent’s duty to investigate in the context of his Article 3 and 8 claims.
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Mr Chirico submitted, as a preliminary matter, that the appellant’s removal whilst the civil proceedings were ongoing would breach his rights under Article 6 of the ECHR as he would not have the opportunity of a fair hearing if he had to conduct that hearing from Jamaica. He submitted that the appellant’s civil proceedings had not been referred to by the respondent in the refusal letter. Mr Chirico also submitted that there was a potential breach of the appellant’s Article 8 rights in respect of both proceedings, the civil proceedings and the deportation proceedings, as both required the procurement of the same experts’ reports regarding his brain damage and mental health. Mr Chirico relied on the case of MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133 in submitting that the appellant should be granted a short period of leave to remain in the UK in order to pursue his civil action. He confirmed that the appellant was withdrawing his asylum claim. The Home Office Presenting Officer, Ms Syed is recorded in the judge’s decision at [11] as having accepted that the refusal letter did not address the appellant’s need to remain in the UK to pursue his civil proceedings and having agreed not to oppose Mr Chirico’s request that the appellant be allowed limited leave to remain in the UK in order to pursue his civil claim provided his asylum claim was conceded.
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Judge Onoufriou had regard to the evidence relating to the civil proceedings and the current situation as regards the procurement of relevant expert reports and referred to the case of Quaquah [2000] INLR 196 in relation to Article 6. He found that the appellant’s removal from the UK before his civil litigation had concluded would breach his Article 6 rights to a fair trial and allowed the appeal to the limited extent that the appellant was to be granted discretionary leave to enable him to pursue his civil proceedings. The judge said that the appellant’s claims under Article 3 of the ECHR based on his medical condition and Article 8 in respect of private and family life were extant.
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The Secretary of State sought permission to appeal to the Upper Tribunal, asserting that it was not clear what the judge meant when concluding that the appellant’s claims under Article 3 and 8 were extant, as he was seized of determining the appeal at the date of the hearing. It was asserted that the judge had made insufficient findings as to why the appellant could not pursue his civil claim from Jamaica and it was not clear how Quaquah applied to the appellant’s case. It was also asserted, with reference to the case of Ullah, R (on the Application of) v Special Adjudicator [2004] UKHL 26, that whilst Article 6...
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