Upper Tribunal (Immigration and asylum chamber), 2020-09-07, PA/04482/2019
| Jurisdiction | UK Non-devolved |
| Date | 07 September 2020 |
| Published date | 21 September 2020 |
| Hearing Date | 02 September 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/04482/2019 |
Appeal Number: PA/04482/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04482/2019 (P)
THE IMMIGRATION ACTS
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Decided Under Rule 34 (P) On 2 September 2020 |
Decision & Reasons Promulgated On 7 September 2020 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
RM (jAMAICA)
(ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DECISION AND REASONS (P)
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This appeal was to be heard on 5 March 2020, at the Civil Justice Centre in Cardiff. For reasons I need not explain, it could not be heard on that date. The appeal was adjourned and transferred to Field House in London.
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The global pandemic then set in and, on 23 March 2020, the Principal Resident Judge issued directions to the parties by email. By those directions, he sought to ascertain whether the appeal might properly be determined on the papers and whether the parties wished to make further submissions on the merits of the appeal. Those directions were sent to the parties by post and email.
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Written submissions were duly filed by counsel, Mr Jones, who has represented the appellant on a Direct Access basis from the inception of this case. In compliance with the PRJ’s directions, Mr Jones copied his submissions to the Home Office email address which has been used throughout the pandemic for service of such documents.
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The papers were passed to me in July. On 29 July 2020, I asked the administrative staff at Field House to ascertain whether there had been any response from the respondent, whether to the PRJ’s initial directions or to the written submissions which were filed and served by Mr Jones in April. I was informed later than day that there had been nothing received from the respondent.
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By rule 34(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Upper Tribunal may make any decision without a hearing. By rule 34(2), it is obliged, in deciding how to proceed, to take into account the views of the parties. I have done so. The PRJ expressed the provisional view that the appeal might fairly and justly be determined on the papers. On behalf of the appellant, Mr Jones urged the Upper Tribunal to proceed in that way. The respondent voiced no objection to that course of action.
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The views of the parties are not determinative. I have also considered the over-riding objective of dealing with cases fairly and justly, alongside all that was said by the Supreme Court in Osborn v Parole Board [2014] 1 AC 1115. There are no disputed issues of fact in this case. The credibility of a party or witness is not in issue before me. My focus, at this stage, is on the decision of the FtT and whether it should be set aside as containing an error or error of law. The parties have had a full opportunity to make submissions on that question. The appellant has taken that opportunity, the respondent has chosen not to do so. I consider that I am able to determine the appeal fairly and justly without a hearing and that it is appropriate, in the exercise of my discretion under rule 34(1), to proceed in that way.
Background
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The appellant is a Jamaican national who was born on 22 January 1995. He last entered the UK in 2002 and was granted Indefinite Leave to Remain (“ILR”) as the dependent of his father, NM, on 9 February 2002.
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The appellant received a caution for drugs possession in 2014. On 3 November 2015, he was convicted by a jury in the Crown Court at Bristol of causing grievous bodily harm with intent. He had previously pleaded guilty to possession of an offensive weapon (a hammer) on the same occasion. These offences were committed by the appellant alongside his father, who had returned with his son to the scene of an argument in pub. His father was armed with a wrench, the appellant with the hammer. The appellant’s father used the wrench so extensively in attacking the two victims that the sentencing judge described the video footage as ‘chilling’. For his part, the appellant did not use the hammer. He held it whilst he attacked the victims and stamped on them. He was sentenced by HHJ Picton to a term of seven years’ detention in a Young Offenders Institution. On 3 November 2016, that sentence was reduced by order of the Court of Appeal, Criminal Division, to one of six years’ detention.
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The respondent initiated deportation proceedings. The appellant appealed to the First-tier Tribunal (“FtT”). His appeal was heard by Judge Lever on 14 June 2018. It is apparent that the case was presented on Article 8 ECHR grounds only. The judge heard evidence from the appellant and his partner, CA, and his aunt. In his reserved decision of 4 July 2018, he concluded that the appellant was unable to demonstrate that there were very compelling circumstances over and above those in the statutory exceptions to deportation which sufficed to outweigh the public interest in deportation. In reaching that decision, he made the following findings of fact. He accepted that the appellant and his partner had a genuine and subsisting relationship but he did not accept that the relationship could not continue in Jamaica: [18]-[20]. He accepted that the appellant had been lawfully resident in the UK for most of his life and that he is socially and culturally integrated but not that there would be very significant obstacles to his integration to Jamaica: [25]-[26]. Considering all relevant matters holistically, Judge Lever did not accept that there were very compelling circumstances over and above those statutory exceptions, although he accepted that the appellant would encounter a degree of hardship on return to Jamaica [24] and that the appellant presented only a low risk to society in the future. Judge Lever then said this, at [27]:
“However, taking all matters in the round and applying the Rules as I must do, I do not find that there are very compelling circumstances over and above the factors that I am entitled to consider and have considered that demonstrate that it overturns the finding that the deportation of the Appellant is conducive to the public good and in the public interest.”
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Permission to appeal against Judge Lever’s decision was refused by the FtT (Judge Haria) and the Upper Tribunal (Judge Frances). The latter decision was served on 1 August 2018.
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In early 2019 – whilst the appellant was still detained – Mr Jones was instructed for the first time. He made detailed further submissions on 3 February 2019. Those submissions included a protection claim which was based, in summary, on events which had taken place in Jamaica before the appellant and his father came to the UK. It was said that his father had been a police officer in Jamaica and that he had lawfully killed a notorious criminal named known as ‘Biga Prince’ and that the family had been in danger from associates of this man ever since. Further submissions were also made in reliance on Article 8 ECHR, detailing additional matters which had not been explored fully or at all in the earlier appeal. It was explained that a complaint was to be made about the failure of the appellant’s previous representatives to pursue the protection claim previously or to develop various aspects of the Article 8 ECHR case before Judge Lever.
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The appellant was interviewed by the respondent in connection with his asylum claim. Further evidence was submitted by his family and by an expert witness, Luke de Noronha. Further submissions were made by Mr Jones. On 25 April 2019, however, the respondent refused the protection and human rights claims. In essential outline, the respondent concluded that the appellant had failed to rebut the statutory presumptions in section 72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) [11]-[24]; failed in any event to establish that he was at risk on return to Jamaica [25]-[81]; and failed to establish that his deportation would be contrary to Article 8 ECHR [82]-[178].
The Appeal to the FtT
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The appellant appealed to the FtT for a second time. His appeal was heard by Judge Roblin on 21 October 2019. The appellant was represented by Mr Jones, the respondent by a Presenting Officer. There was extensive documentary evidence before the judge, including expert evidence from Dr de Noronha and an Independent Social Worker named Peter Horrocks. Unusually, there was also an ‘Investigation Report’ from a Jamaican firm of attorneys, Danielle S Archer and Associates, dealing with the killing of Biga Prince by the appellant’s father and the current circumstances of people relevant to the appellant’s fear of reprisals. There was also extensive oral evidence from the appellant and five family witnesses. Oral submissions were made by the respondent in amplification of the decision letter. Mr Jones...
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