Upper Tribunal (Immigration and asylum chamber), 2019-06-28, [2019] UKUT 216 (IAC) (Smith (appealable decisions; PTA requirements; anonymity))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Gill, Upper Tribunal Judge Finch |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 June 2019 |
| Published date | 11 July 2019 |
| Status | Reported |
| Hearing Date | 07 May 2019 |
| Subject Matter | appealable decisions; PTA requirements; anonymity |
| Appeal Number | [2019] UKUT 216 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 00216 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 7 May 2019 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE GILL
UPPER TRIBUNAL JUDGE FINCH
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MORGAN HAYAT SMITH
(no ANONYMITY DIRECTION made)
Respondent
Representation:
For the Appellant: Mr I. Jarvis, Home Office Presenting Officer
For the Respondent: Mr B. Amunwa, Counsel instructed by Duncan Lewis & Co Solicitors
(1) A decision by the First-tier Tribunal not to decide a ground of appeal constitutes a "decision" for the purposes of s.11(1) of the Tribunals, Courts and Enforcement Act 2007. It may therefore be appealed to the Upper Tribunal.
(2) If an appellant’s appeal before the First-tier Tribunal succeeds on some grounds and fails on other grounds, the appellant will not be required to apply for permission to appeal to the Upper Tribunal in respect of any ground on which he or she failed, so long as a determination of that ground in the appellant’s favour would not have conferred on the appellant any material (ie tangible) benefit, compared with the benefit flowing from the ground or grounds on which the appellant was successful in the First-tier Tribunal.
( 3) In the event that the respondent to the appeal before the First-tier Tribunal obtains permission to appeal against that Tribunal’s decision regarding the grounds upon which the First-tier Tribunal found in favour of the appellant, then, ordinarily, the appellant will be able to rely upon rule 24(3)(e) of the 2008 Rules in order to argue in a response that the appellant should succeed on the grounds on which he or she was unsuccessful in the First-tier Tribunal. Any such response must be filed and served in accordance with those Rules and the Upper Tribunal’s directions.
(4) If permission to appeal is required, any application for permission should be made to the First-tier Tribunal in accordance with rule 33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, within the time limits there set out. This includes cases where the appellant has succeeded on some grounds but failed on others, in respect of which a material benefit would flow (see (2) above).
( 5) There is, however, no jurisdictional fetter on the Upper Tribunal entertaining an application for permission to appeal, even though the condition contained in rule 21(2)(b) of the 2008 Rules has not been met, in that the First-tier Tribunal has not refused (wholly or partly), or has not refused to admit, an application for permission to appeal made to that Tribunal. Rule 7(2)(a) of the 2008 Rules permits the Upper Tribunal to waive any failure to comply with a requirement of the Rules. The guidance in EG and NG (UT rule 17: withdrawal; rule 24: Scope) Ethiopia [2013] UKUT 00143 (IAC) is otherwise confirmed.
(6) The Upper Tribunal is, nevertheless, very unlikely to be sympathetic to a request that it should invoke rule 7(2)(a), where a party (A), who could and should have applied for permission to appeal to the First-tier Tribunal against an adverse decision of that Tribunal, seeks to challenge that decision only after the other party has been given permission to appeal against a decision in the same proceedings which was in favour of A.
(7) When deciding whether to make an anonymity direction, the starting point is that open justice is a fundamental principle of our legal system. Subject to statutory prohibitions on disclosure, any derogation from that principle should be allowed only to the extent that is necessary in order to secure the proper administration of justice. As a result, just as is the case in other jurisdictions, the parties in immigration proceedings should be named, unless doing so would cause harm, or create the risk of harm, of such a nature as to require derogation from the basic principle. In most cases involving international protection, anonymity of an individual will be required, lest the proceedings themselves should aggravate or give rise to such a risk. That will normally be the case throughout the course of the proceedings, including any appeals.
DECISION AND REASONS
A. Introduction
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The respondent (hereafter the claimant) is a citizen of Belgium, born in July 1988. He has a history of offending as a juvenile. As an adult, he was convicted in 2017 of disclosing private sexual photographs and films with intent to cause distress; four counts of battery; assaulting a constable; and failing to surrender to custody at the appointed time. The offence of battery was committed whilst the claimant was on bail.
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On 15 September 2017, after considering the claimant’s representations as to why he should not be deported from the United Kingdom, the Secretary of State made a deportation order against the claimant. He did not appeal against that decision and was deported on 3 November 2017.
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Two days later, the claimant attempted to return but was refused entry to the United Kingdom. On 14 January 2018, the claimant was arrested by police, having entered in breach of the deportation order. The claimant was removed on 18 March 2018. The following day, he was encountered embarking on a ferry in Scotland. He was removed again on 7 May 2018.
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On 31 May 2018, the claimant again entered the United Kingdom, in breach of the deportation order. On 15 June 2018, the claimant was convicted of knowingly entering the United Kingdom in breach of the deportation order, for which he was fined.
B. The decision letter
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Those acting for the claimant subsequently made representations, which the Secretary of State treated as an application for the deportation order to be revoked. On 19 July 2018, the Secretary of State explained why he had, in effect, decided not to do so. The letter took account of the claimant’s assertion that he had lived in the United Kingdom for the majority of his life, having lived here between the ages of 5 and 9 before returning to the United Kingdom in 2011 aged 12. The Secretary of State, on the basis of the evidence submitted, refused to accept that the claimant had been resident in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), for a continuous period of five years.
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The decision letter noted that the claimant had “lost his temper on three separate occasions against 2 females and on those occasions, he in fits of anger assaulted both of them”. This included pushing his ex-partner by the throat until she passed out, after which he “continued to torment her by posting private and indecent photographs of her on the internet in order to humiliate her”. On another occasion, the claimant threw items around his flat, hitting his current partner with a wooden incense dispenser, as a result of which she was taken to hospital for treatment. He subsequently assaulted his current partner by slamming her into a bathroom mirror, before pinning her down on the floor and placing a blanket around her face and neck.
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The decision letter found that the claimant had a propensity to reoffend and represented a very genuine and persistent sufficiently serious threat to the public to justify maintaining his deportation. Having considered the issue of proportionality, by reference to the claimant’s submissions about difficulties he would face in Belgium, the letter concluded that it would be reasonable to expect the claimant to go to Belgium and resume his life there.
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The letter explained in detail why, in circumstances of the claimant’s case, his deportation to Belgium would not disproportionately interfere with his rehabilitation.
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At paragraph 58 of the letter, the Secretary of State concluded that deportation was proportionate and in accordance with the principles and regulations of 23(6)(b) of the 2016 Regulations.
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The decision letter then turned to consider Article 8 of the ECHR. Paragraph 59 reads:-
“In addition to considering your client’s position under EU law and the EA Regulations 2016, consideration has separately been given to whether your client’s deportation would breach the United Kingdom’s obligations under the European Convention of Human Rights (ECHR).”
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The letter noted the various elements of the claimant’s Article 8 claim, which were that he had a girlfriend in the United Kingdom, who was pregnant; that his mother remained in the United Kingdom; and that he had established a private life by virtue of his residence and education in the United Kingdom. So far as the claimant’s partner was concerned, the Secretary of State considered that the claimant did not have a genuine and subsisting relationship with her, in light of his conviction for battery against that partner. There was also no evidence of co-habitation.
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So far as private life was concerned, the letter explained why the Secretary of State did not consider that the claimant was socially and culturally integrated in the United Kingdom. This was because the...
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