Upper Tribunal (Immigration and asylum chamber), 2016-09-23, PA/00056/2015
| Jurisdiction | UK Non-devolved |
| Date | 23 September 2016 |
| Published date | 18 May 2020 |
| Hearing Date | 06 September 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/00056/2015 |
Appeal Number: PA/00056/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00056/2015
THE IMMIGRATION ACTS
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Heard at Newport |
Decision & Reasons Promulgated |
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On 6 September 2016 |
On 23 September 2016 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
M M
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms J L Blair instructed by Migrant Legal Project
For the Respondent: Mr I Richards, Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
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The appellant is a citizen of Algeria who was born on 12 February 1976. He first arrived in the United Kingdom on 15 December 1999 and applied for asylum. That was refused on 2 October 2002 and a subsequent appeal was dismissed on 28 January 2004. He became appeal rights exhausted on 16 April 2004. The appellant made further submissions on 16 April 2009 and again on 24 January 2014 but both were rejected on 18 December 2013 and 22 May 2014 respectively.
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Between 2000 and 2014, the appellant was convicted on nine occasions of a total of eleven offences. On 30 May 2000 he was convicted of affray and sentenced to a twelve months’ community rehabilitation order. On 10 August 2001, he was convicted of theft and was sentenced to two months’ imprisonment. On 15 July 2003 he was convicted of theft and fined £200. On 4 June 2009 he was convicted of possessing an offensive weapon in a public place and sentenced to a twelve months’ community order. On 2 December 2010 he was convicted of being found on an enclosed premises for an unlawful purpose and was sentenced to a three months conditional discharge. On 7 September 2011 he was convicted of possession of a class B controlled drug, namely cannabis, and was sentenced to one day’s imprisonment. On 23 May 2013, he was convicted of criminal damage and was sentenced to a twelve months’ conditional discharge. On 12 July 2013 he was convicted of theft and sentenced to a period of six weeks’ imprisonment suspended for fifteen months.
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The appellant’s most recent conviction was on 29 September 2014 at the Southwark Crown Court. There he pleaded guilty to two offences. He was sentenced to a period of imprisonment of three months for handling stolen goods and a further one month’s concurrent sentence for a drugs offence involving cannabis. As will become clear shortly it is an issue whether he was convicted of the simple possession offence or more serious possession with intent to supply. In addition, as he was in breach of the earlier suspended sentence order, he was sentenced to a further consecutive period of three weeks’ imprisonment.
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As a result of the appellant’s offending history, on 5 December 2014 he was notified of his liability to be deported on the basis that it was conducive to the public good. In response, the appellant claimed that his deportation would breach Art 8 of the ECHR. He relied upon his private life in the UK and in particular that he had mental health problems and suffered from epilepsy.
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On 10 April 2015, a deportation order was signed in respect of the appellant.
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On 16 April 2015, the Secretary of State refused the appellant protection and human rights claim, in particular under Arts 3 and 8 of the ECHR.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Suffield-Thompson and in a decision sent on 3 May 2016, she dismissed the appellant’s appeal on all grounds. First, she concluded that the appellant’s deportation, though not subject to the automatic deportation provisions in the UK Borders Act 2007, was nevertheless conducive to the public good under s.3(5)(a) of the Immigration Act 1971 on the basis of the seriousness of his persistent offending. Secondly, the judge found that the appellant would have available to him medical treatment, in particular medication, in Algeria for his mental health problems including his epilepsy. It was accepted before the judge that the appellant could not succeed either Art 3 or Art 8 on the basis of any disparity in the availability of treatment.
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The judge rejected the appellant’s claim under Art 3 based upon the social stigma of mental health in Algeria and that there was a risk he would be rejected by his family and would be forced to live on the streets in circumstances which would engage Art 3 applying the approach in D v UK (1997) 24 EHRR 423. Finally, the judge rejected the appellant’s claim under Art 8.
The Appeal to the Upper Tribunal
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The appellant sought permission to appeal to the Upper Tribunal on four grounds.
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First, the judge had improperly reached the finding that the appellant’s offending was sufficiently “serious” to make his deportation conducive to the public good. She had failed to follow the approach of the sentencing judge, in particular by characterising the appellant’s offending as more serious because the sentencing was unduly lenient (ground 1).
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Secondly, the judge wrongly failed to give due weight to the expert psychiatric evidence first, by relying upon her own assessment of the appellant as showing no outward signs of suffering from discernable psychiatric issues (ground 2); and secondly, in disregarding the report on the ground that it was primarily based on information provided by the appellant which it was not (ground 3); and further the judge had failed to take the report into account in assessing the appellant’s credibility and inconsistencies in his evidence when that report identified the effects of the appellant’s addiction to prescription drugs on his cognitive functions.
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Thirdly, the judge had failed properly to take into account the country expert report from Ms Pargeter in assessing the risk to the appellant based, not upon a disparity in available treatment, but in the impact upon him of socio-cultural attitudes in Algeria to those who suffer from mental illness (grounds 5 and 6).
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On 26 May 2016 the First-tier Tribunal (Judge J M Holmes) granted the appellant permission to appeal.
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On 15 June 2016, the Secretary of State filed a rule 24 response seeking to uphold the decision.
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On 1 September 2016, the appellant filed a response to the Secretary of State’s rule 24 document.
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Thus, the appeal came before me.
Discussion
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At the hearing, the appellant was represented by Ms Blair and the respondent by Mr Richards.
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In her oral submissions, Ms Blair relied upon the grounds and response to the rule 24 notice which she developed in her oral submissions.
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Mr Richards sought to uphold the judge’s decision on the basis that she had properly directed herself and taken into account all the evidence. Her findings were entirely sustainable.
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Whilst Judge Suffield-Thompson’s determination was undoubtedly a detailed assessment of the appellant’s claim running to 87 substantive paragraphs, there are a number of aspects of her reasoning and approach raised in the grounds which have led me to conclude that her decision is flawed by material errors of law and cannot stand.
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First, there is the issue of whether the judge’s finding that the appellant’s offending made his deportation conducive to the public good is flawed.
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Before turning to the specific issues raised by Ms Blair, it was common ground before Judge Suffield-Thompson that the appellant was entitled to raise the issue of whether the Secretary of State had lawfully determined that his deportation was conducive to the public good. This was an appeal, however, that was governed by the new appeal provision introduced by the Immigration Acts 2014. The appellant had no right of appeal against the decision to deport him. His right of appeal was against the refusal of his human rights claim. The only grounds upon which he could challenge the respondent’s decision was, in effect, in the circumstances of his case, that deportation would breach either Arts 3 or 8 of the ECHR. Nevertheless, even if the issue of whether his deportation was “conducive to the public good” could not directly be challenged, the judge’s finding was the central issue in her assessment of the public interest relevant in carrying out the balancing exercise under Art 8 of the ECHR. It is clear from her determination that her reasoning and conclusion in relation to the conducive to the public good issue was read across when considering the public interest under Art 8.2 (see para 87). In that context, therefore, the issues raised under ground 1 remain live.
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The judge’s reasoning in respect of the finding that the appellant’s deportation is ‘conductive to the public good’ is at paras 33-43 of her determination.
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The appellant’s...
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