Upper Tribunal (Immigration and asylum chamber), 2020-09-10, HU/16822/2017
| Jurisdiction | UK Non-devolved |
| Date | 10 September 2020 |
| Published date | 24 September 2020 |
| Hearing Date | 04 September 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/16822/2017 |
HU/16822/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: HU/16822/2017 (P)
THE IMMIGRATION ACTS
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Heard Remotely at Manchester CJC |
Decisions & Reasons Promulgated |
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On 4 September 2020 |
On 10 September 2020 |
Before
UPPER TRIBUNAL JUDGE PICKUP
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MS
(ANONYMITY ORDER MADE)
Respondent
DECISION AND REASONS (P)
For the appellant: Mr D Clarke, Senior Presenting Officer
For the Respondent: Mr D Bazini, instructed by Gulbenkian Andonian Solicitors
This has been a remote hearing which has been consented to by the parties. The form of remote hearing was video by Skype (V). A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. At the conclusion of the hearing I reserved my decisions and reasons, which I now give. The order made is described at the end of these reasons.
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For the purposes of this decision, to avoid confusion, I have referred below to the parties as they were before the First-tier Tribunal.
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The appellant is a citizen of Kosovo with date of birth given at 8.11.81. He is married to a British citizen (born in Kosovo), and is the father of their child, now aged 7, and step-father to his wife’s child from a previous relationship, now aged 13. Both children are British citizens. It is accepted that he has a genuine and subsisting relationship with his partner and both children.
Chronology and Relevant Background
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In August 2015 the respondent decided to deport the appellant, relying on the appellant’s criminality, including not only offences committed in the UK between 2011 and 2015 but also his conviction in Pristina, Kosovo, for an offence of attempted murder, for which he was sentenced to a term of imprisonment of 3 years and 6 months, so that his deportation was considered to be conducive to the public good and therefore he was liable to deportation pursuant to s3(5)(a) of the 1971 Act. It should be noted that at the First-tier Tribunal appeal hearing the appellant did not accept that he had been convicted in Kosovo.
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In June 2016 the respondent refused the appellant’s human rights claim made against deportation, relying on his criminal offending behaviour, by then including his further criminal behaviour, including the most recent conviction and sentence in March 2016 for three offences: burglary of commercial premises, possession of a prohibited weapon (CS gas), and commission of an offence during the currency of a suspended sentence (offences from 2015 of driving whilst disqualified and uninsured, and taking a vehicle without consent). These last offences were committed whilst the appellant was the subject of a suspended sentence and after being served on 17.8.15 with the decision to make a deportation order against him. The sentencing exercise before the Crown Court in resulted in a cumulative term of 15 months’ immediate imprisonment. However, it is significant to the preliminary point raised by Mr Bazini (set out below) to note that the total of 15 months imprisonment comprised consecutive sentences for the three offences, being 8 months, 4 months, and 3 months.
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The decision refusing and certifying the appellant’s human rights claim made in June 2016 was withdrawn because of the Kiarie & Byndloss ruling and remade on 8.12.17. At paragraph [19] of the decision, under the heading of ‘Reasons for Deportation’, the respondent relied on the appellant’s Kosovo conviction for attempted murder, together with his subsequent convictions in the UK, ranging between 2011 and 2016, including the three offences which resulted in the total term of 15 months’ imprisonment.
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At [24] of the respondent’s decision, the respondent stated, “Your deportation is conducive to the public good and in the public interest because you have been convicted of an offence for which you have been sentenced to a period of imprisonment of less than four years but at least 12 months. Therefore, in accordance with paragraph 398 of the Immigration Rules, the public interest requires your deportation unless an exception to deportation applies.” In the light of that statement, it is not clear the extent to which the foreign conviction was relied by the respondent. References to the appellant’s offending behaviour in some of the subsequent paragraphs of that decision, including at paragraphs [68] and [69], refer only to the UK criminal convictions. In considering whether there were very compelling circumstances at paragraph [73] of the decision the respondent stated that there was a significant public interest in deporting the appellant, relying on a list of his convictions, beginning with the Kosovo conviction for attempted murder. Nevertheless, at [74] the respondent stated that “notwithstanding” the conviction in Kosovo, the UK convictions demonstrated a blatant disregard for the laws of the UK and showed no inclination to curb his offending, and that his actions were not those of a person predisposed to rehabilitation. The extent of reliance on the foreign conviction in the decision of the respondent is relevant to the preliminary argument addressed below, because the First-tier Tribunal judge declined to take it into account, concluding at [5] of the decision that the respondent had failed to produce evidence of the conviction despite earlier directions to do so.
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On 27.9.19, the First-tier Tribunal allowed on human rights grounds the appellant’s appeal against the respondent’s reasons for deportation decision of 8.12.17. The appeal was allowed on the basis that it would be unduly harsh for the elder child, then aged 12, to leave the UK with the appellant, assessing her best interests were to remain in the UK. The judge concluded at [20] that those best interests “just tips in the balance of allowing the appellant to remain the UK.”
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The respondent sought to appeal the decision of the First-tier Tribunal to the Upper Tribunal. Permission was refused by the First-tier Tribunal on 18.10.19. However, when the application was renewed to the Upper Tribunal on 15.11.19, a week out of time, Upper Tribunal Judge Hanson extended time and granted permission on 31.12.18.
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The appeal to the Upper Tribunal was originally listed for a panel hearing on 26.2.19. However, the appellant raised argument at the hearing that the grant of permission or more particularly the extension of time under Rules 5(3)(a) and 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008, was unlawful. Although counsel for the appellant urged the panel to reconstitute itself to hear a challenge by way of judicial review, that was not possible as the Upper Tribunal cannot judicially review itself. The panel concluded that the statutory appeal could not proceed until this preliminary issue was decision. The appeal was, therefore, adjourned with the understanding that the appellant would apply to the Administrative Court for permission to pursue judicial review and keep the Upper Tribunal informed of progress.
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The matter was further considered by Upper Tribunal Judge Norton-Taylor on 8.3.19, 15.3.19. In the absence of notification of resolution or progress in relation to the judicial review application, the matter was listed for a Case Management Review. However, on 3.12.19 Judge Norton-Taylor considered that no useful purpose would be served by holding an oral CMR until a decision on permission had been made by the Administrative Court. Further directions were issued requiring the appellant to provide an update on the judicial review proceedings as soon as there was any material change, and in any event to provide a confirmation of progress no later than 6.1.20.
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On 15.10.19, permission to apply for judicial review was refused on the papers by the Administrative Court, but followed by an application to renew at an oral hearing, which took place 11.12.19. However, permission was again refused.
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On 18.12.19, the appellant filed an application with the Court of Appeal for permission to appeal the decision of 11.12.19 refusing permission for judicial review.
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On 6.1.20, the appellant sent the Upper Tribunal a written progress report, detailing the above stages and confirming that the application to the Court of Appeal remained outstanding without any indication of date of resolution.
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By letter to the Upper Tribunal dated 4.7.20, the appellant’s representatives confirmed that the application for permission to appeal to the Court of Appeal had been refused on the basis that there was no right to renew an application for permission to appeal to the Court of Appeal at an oral hearing and there was no avenue for the appellant to make onward appeal challenge to the Supreme Court. In the premises, the challenge to Upper Tribunal Judge Hanson’s decision to extend time had come to an end, so that the statutory appeal to the Upper Tribunal could proceed in due course. In consequence, the Upper Tribunal directed the matter be set down for a remote hearing of the error of law issue.
The Judge’s Findings
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As stated above, for the reasons set out at [5] of the decision, primarily a lack of evidence, the judge declined to rely on the appellant’s alleged...
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