Upper Tribunal (Immigration and asylum chamber), 2020-09-01, PA/09578/2017
| Jurisdiction | UK Non-devolved |
| Date | 01 September 2020 |
| Published date | 15 September 2020 |
| Hearing Date | 19 August 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/09578/2017 |
Appeal Number: PA/09578/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09578/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 19 August 2020 |
On 01 September 2020 |
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Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
H. H. Z.
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: In Person
For the Respondent: Mr. T Lindsay, Senior Presenting Officer
DECISION AND REASONS
Introduction
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The appellant is a national of Iraq and asserts that he is presently aged 31. He appealed against a decision of the respondent not to grant him leave to remain on protection or human rights grounds and to seek to deport him. The respondent’s decision is dated 13 September 2017.
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The appellant’s appeal was initially founded upon international protection and human rights (articles 3 and 8) grounds. It was initially considered by Judge of the First-tier Tribunal Rai who dismissed the appeal by a decision dated 14 October 2019.
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The appellant was granted permission to appeal and the Tribunal (Chamberlain J and UTJ O’Callaghan) dismissed the appeal on international protection and human rights (article 3) grounds but allowed the appeal on human rights (article 8) grounds to the extent that the Tribunal would remake the decision. The Tribunal’s decision was sent to the parties on 11 February 2020 and is annexed to this decision.
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This matter was listed before me on 19 August 2020 for the resumed hearing. The appellant was represented by Arora Lodhi Heath Solicitors until at least 10 August 2020 when the firm filed and served a paginated supplementary bundle, including a further witness statement from EC. I was informed by the appellant at the hearing that he was content to proceed in the absence of legal representation.
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The parties were in agreement that the appellant’s bundle being relied upon was that filed under cover of a letter from Arora Lodhi Heath Solicitors, dated 4 July 2019, which runs to 188 pages. A further supplementary bundle running to 16 pages was filed under cover of the letter of 10 August 2020, detailed above.
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The appellant and EC relied upon their witness statements and gave evidence before me. By agreement with the appellant, EC presented closing submissions on his behalf. I take this opportunity to observe that the submissions were eloquent and of a high calibre.
Anonymity Direction
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The Tribunal issued an anonymity direction by its decision dated 11 February 2020 and there was no request by either party to set it aside. For the reasons detailed by the previous decision I remain satisfied that an anonymity direction is appropriate in this matter and I extend the direction to cover the appellant’s witness, EC, because I am satisfied that her identification would quickly lead to the appellant’s identification.
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The direction is detailed at the conclusion of this decision.
Background
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The appellant is an ethnic Kurd who asserts that he is from Kirkuk. By a decision dated 8 February 2007 the Asylum and Immigration Tribunal (Immigration Judge Kamara) found the appellant to be from Sulemaniya, at [21]: (AA/12399/2006).
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He arrived in this country in 2005 and claimed asylum. The respondent refused the application and the Asylum and Immigration Tribunal dismissed the appellant’s appeal by its decision dated 8 February 2007. Immigration Judge Kamara (as she then was) concluded that the appellant had sought to mislead the respondent as to his age and that rather than being a youth of 17, he was a ‘confident individual well into his twenties’, at [19]. The Judge further found that she could not accept the appellant to be a witness of truth there being a significant number of discrepancies between his oral evidence, his witness statement and his screening interview, such as that when taken cumulatively the asylum claim was found to be a ‘work of fiction from beginning to end’, at [21].
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In July 2010 the appellant was granted indefinite leave to remain in this country outside of the Immigration Rules. A subsequent application for naturalisation as a British citizen was refused by the respondent in December 2011 on good character grounds.
Criminal convictions
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The appellant has several criminal convictions in this country. In 2008 he was convicted of driving whilst disqualified, drink-driving and using a car without insurance for which he received a sentence of 56 days’ imprisonment, suspended for 12 months. He also received 200 hours of unpaid work and £60 costs. The OASys assessment records at page 9 [AB 82] that the appellant appears not to recognise the seriousness of his actions in relation to this conviction.
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In 2015 he was convicted of theft (shoplifting) and possession of a knife, for which he received a 12-week custodial sentence, suspended for 12 months with £780 costs (as amended on appeal). The OASys assessment records, at [AB 82], that the appellant walked out of a SuperDry store wearing a jumper he had not paid for. He stated that he had forgotten that he was wearing it. As for the Stanley knife in his possession he detailed that he was on his lunch break from work.
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In 2016 he was convicted of two counts of theft and sentenced to 10 weeks’ imprisonment suspended for 18 months with £330 costs. As recorded at [AB 82] the appellant states that he paid for a television, but the cashier forgot to scan it and verify the purchase. He was arrested when he walked out of the store without paying.
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The OASys assessment observes at [AB 82] that the appellant ‘maintains his innocence as to the theft charges. With regards to all his offending history, he has justifications and is able to provide an excuse as to why they occurred, none of which involve them being his fault.’ For the sake of completeness, the explanations as to the theft offences are considered by the Tribunal to be hopeless and that the appellant continues to advance them, despite having been convicted on the criminal standard of proof following trials on all four counts, is strongly suggestive as to his personal detachment from his criminal activity and his willingness not to accept his behaviour as being contrary to societal norms.
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On 3 February 2017 the appellant was convicted at Isleworth Crown Court of possession/control of identity documents with intent and sentenced to 12 months’ imprisonment. At the same time a suspended sentence of 2 months was activated, to be served consecutively.
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The nature of the offence is detailed within the OASys report, at [AB 80]:
‘On Tuesday 20 October 2016 at 14.30pm [the appellant] coerced his partner [EC] to enter NatWest Bank in Fulham Broadway, with false documents (bank card and driving licence) to try to reopen a bank account which belonged to [AJ]. When the cashier asked [EC] to enter the PIN number a stop warning came up on the screen. The cashier then took all the documents that [EC] had handed over and took it to her manager who called the police. [The appellant] was standing outside the bank throughout.
During this time, [EC] wandered out of the bank speaking occasionally with [the appellant] who was standing outside. [EC] became anxious and walked away, while [the appellant] remained standing outside the bank. It was only when the police arrived he walked away. He was later arrested outside the bank. [EC] was arrested in a nearby estate. She stated that her partner [the appellant] had threatened to harm her if she did not go into the bank with the documents. At the scene [the appellant] denied knowing [EC], then they later spoke to each other in custody and gave the same home address (… Finborough Road …).
A police search was conducted at the address, where the original driving licence of [EC] was found. In the printer, a copy of the same licence was found with the name changed to [AJ] and a different address. This altered version was the same as used by [EC] in the NatWest Bank. Further personal documents were found belonging to [AJ] at the address.
[AJ] was located to be living in New Jersey, USA, during the offence. She provided a statement which detailed how [the appellant] had coerced her into providing him her driving licence and allowing him the use to open a bank account in her name, for the purposes of transferring money.
[EC] during police interview discussed how she was coerced into committing the offence and was in fear of what may happen to her. [The appellant] stated that he was also under duress during the commission of the offence. He reported that a ‘Romanian gang’ had threatened him to carry about [sic] the frauds and had been under threat for several months. He names a member with the nickname ‘Bully’. [The appellant] also during police interviews, was informed of what [EC] had said, where he conceded that he has made her do it.’
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HHJ Denniss observed by his sentencing remarks, inter alia:
‘You’ve pleaded guilty to a serious offence of possessing an identification document with improper intention. It’s an offence which is aggravated by the fact that you were involved in fabricating a fraudulent...
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