Upper Tribunal (Immigration and asylum chamber), 2019-12-18, HU/06179/2017
| Jurisdiction | UK Non-devolved |
| Published date | 16 September 2022 |
| Date | 18 December 2019 |
| Hearing Date | 04 December 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/06179/2017 |
Appeal Number HU/06179/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06179/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 4 December 2019 |
On 18 December 2019 |
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Before
UPPER TRIBUNAL JUDGE O’CONNOR
UPPER TRIBUNAL JUDGE PLIMMER
Between
KMM
ANONYMITY DIRECTION MADE
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr Jones, Counsel
For the respondent: Mr Whitfield, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant has appealed against the respondent’s refusal of his human rights claim in a decision letter dated 24 April 2017. This was accompanied by a deportation order of the same date.
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The appellant, a citizen of Zimbabwe, was born on 13 September 1991 and is therefore now 28 years old. In a decision sent on 27 February 2019, the First-tier Tribunal (‘FTT’) dismissed the appellant’s appeal on human rights grounds. In a decision sent on 12 July 2019, a different panel of the Upper Tribunal (‘UT’) found that the FTT’s decision contained a material error of law (‘the error of law decision’). The FTT’s decision was set aside with directions for the decision to be re-made by the UT at a resumed hearing, which we now do.
Background
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The FTT made comprehensive findings of fact having heard from the appellant, his father (‘J’), his partner (‘E’), E’s mother (‘S’) and a friend (‘ET’) and having considered expert reports from (i) a country background expert on Zimbabwe, Professor Jeater (‘the country expert report’) and (ii) an independent social worker, Mr Horrocks (‘the ISW’). These findings of fact were not challenged or cross-appealed by the respondent and it was agreed by both parties at the ‘error of law’ hearing that they constitute preserved findings in relation to article 8, ECHR. Although those findings are set out in the error of law decision, it is convenient to summarise them here. There are slight differences between the two summaries. The appellant has a very lengthy immigration history, and minor mistakes have been made within the voluminous documentation. We are satisfied that this summary is the most accurate and in any event, having been reviewed by the parties before us, not in any dispute.
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The appellant arrived in the UK on 16 September 2002 with his younger brother, when he was 11 years old in order to join his parents (both Zimbabwean citizens). At the time the appellant was treated as a dependent of his parents and given leave to enter until 28 August 2003. The parents were granted three years’ discretionary leave (‘DL’) to remain in the United Kingdom (‘UK’) on 15 August 2003, following a successful appeal on human rights grounds.
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The appellant and his family members’ DL was thereafter extended until 2013, when the family members (apart from the appellant) were granted indefinite leave to remain (‘ILR’). On 3 January 2013 the appellant’s leave was reviewed but due to his offending at the time, a decision was made not to grant him ILR but to extend his DL to 2 January 2016. By contrast, the appellant told us that his brothers were given ILR in 2013. That summary of the family’s immigration status at the time seems entirely plausible and in accordance with the respondent’s relevant policies at the time - they would have had amassed ten years lawful residence in the UK.
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The appellant applied for ILR in an application dated 30 December 2015, based on his ten years’ lawful residence in the UK. This application was referred to the criminal casework team as a result of his criminal offending, and resulted in the decision under appeal.
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The appellant’s criminal offending is set out in his ‘PNC’ record, and began at an early age. In October 2005, when he had just turned 14, he was cautioned by the police for assault. When he was 15, in April 2007 he was convicted of robbery. In 2008, he was convicted of two separate offences: failure to surrender to custody at the appointed time and theft of a vehicle. In 2011 (when he was 19), he was convicted of various driving offences and possession of Class A drugs. The appellant was disqualified from driving and received an 18 month prison sentence suspended for 18 months with an unpaid work requirement. He failed to comply with that requirement and on 3 January 2012 (when he was 20) magistrates activated six weeks of his suspended sentence. In April 2012, he was again convicted of various driving offences including driving whilst disqualified and uninsured, and possession of class B drugs. The appellant was sentenced to a community order and unpaid work requirement. On 31 July 2012 he was convicted of failing to comply with the requirements of a community order.
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On 7 October 2013 the appellant was convicted of aggravated burglary of a dwelling, committed on 18 April 2013 (when he was 21). The sentencing judge identified aggravating features including the victims being at home, violence being used, a knife being present, a significant degree of planning and being equipped with blindfolds and cable ties. The sentencing judge had no doubt that the victims were severely traumatised by the offending and placed the offence within the highest category of the sentencing guidelines. This resulted in the imposition of a sentence of imprisonment of ten years, which was upheld on appeal by the Court of Appeal.
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The appellant met E when they were teenagers in 2008. Their relationship has strengthened with time and survived the appellant’s imprisonment between 2013 and 2018. They began cohabitating in 2011 and got married in 2015 (after the appellant had been convicted and was serving his sentence of imprisonment). In June 2012 (prior to the commission of the 2013 offence) the couple had a son, Y, who is now 7 years old. The appellant recommenced living with Y and E in November 2018. The FTT accepted that notwithstanding the appellant’s imprisonment, he maintained an unusually strong relationship with Y, and Y’s behaviour had greatly improved since his father’s release from imprisonment. The FTT accepted the ISW’s evidence that there is a significant risk that E (who works as a social worker) would suffer an emotional breakdown if the appellant is deported, which may in turn lead to the breakdown of the family unit and potentially Y moving to live with his grandmother, S.
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The appellant has no family left in Zimbabwe. The FTT accepted that the appellant is unlikely to find formal or informal employment in Zimbabwe and therefore likely to be destined to the ‘squalid’ lodger-type accommodation available in Harare, if he can persuade someone to take him in, otherwise he will be in the homeless / shanty town population. He will be in a slightly better position relative to the population there, due to his limited financial support from the UK. The FTT found that the appellant’s return to Zimbabwe would be best described as “deportation amounting akin to exile” as opposed to “deportation amounting to return”.
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The FTT also accepted that the appellant’s efforts to change and rehabilitate are “exceptional” and “overwhelming”. His medium risk of re-offending is based entirely upon ‘static’ factors only. Although the appellant pleaded not-guilty to the 2013 offence and maintains that position, he accepts that his conviction was still his fault and arose as a consequence of his lifestyle and associates at the time. The appellant’s attitude and actions since his conviction can be characterised as a “model of rehabilitation”. Although the appellant has only recently been released from prison, his commitment to his future life with his family and his relationship with his son are “exceptional”.
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Prior to his imprisonment, the appellant was working with his uncle as a decorator, and since his release from prison, has been offered employment, once he is legally able to take this up.
UT error of law decision
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The UT concluded that although the FTT’s decision was detailed and carefully drafted, it materially erred in law in:
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concluding that because the appellant does not have ILR, he is not a ‘settled migrant’ for the purposes of the guidance given in Maslov v Austria [2008] ECHR 546;
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failing to direct itself to the role played by the flexibility provision in s.117A(2)(a) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), when attributing weight to the appellant’s private life for the purposes of s.117B(5) and s.117C(6), in the manner anticipated as possible in Rhuppiah v SSHD [2018] UKSC 58; [2018] 1 WLR 5536 at [36].
The UT panel rejected Mr Jones’ submission that there could only be one result when the correct law was applied to the FTT’s comprehensive findings of fact. The panel found that whilst there were features of the appellant’s private life in the UK that might be capable of being viewed as “particularly strong” when assessed holistically, there were factors that went in the opposite direction and the FTT did not make a clear...
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