Upper Tribunal (Immigration and asylum chamber), 2020-09-09, PA/08912/2018
| Jurisdiction | UK Non-devolved |
| Date | 09 September 2020 |
| Published date | 23 September 2020 |
| Hearing Date | 02 September 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/08912/2018 |
Appeal Number: PA/08912/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08912/2018 (V)
THE IMMIGRATION ACTS
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Heard at: Field House On: 2 September 2020 |
Decision & Reasons Promulgated On 9 September 2020 |
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Before
UPPER TRIBUNAL JUDGE KEBEDE
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MD
(ANONYMITY order MADE)
Respondent
Representation:
For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Ms H Foot, instructed by Tower Hamlets Law Centre
DECISION AND REASONS
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This has been a remote hearing to which there has been no objection from the parties. The form of remote hearing was skype for business. A face to face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. In addition to the above-mentioned parties, the appellant was present, remotely.
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This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing MD’s appeal against the Secretary of State’s decision to refuse his human rights claim following the making of a deportation order against him.
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For the purposes of this decision, I shall hereinafter refer to the Secretary of State as the respondent and MD as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.
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The appellant is a citizen of Ghana born on 20 April 1985. He claims to have arrived in the United Kingdom with his father and siblings in 1997, aged 12 years. Following his arrest on 19 May 2003 for attempted deception and on suspicion of being an immigration offender, the appellant applied for leave to remain on Article 8 grounds, on 22 May 2003. His application was refused and an appeal against that decision dismissed on 1 April 2006.
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The appellant was convicted on 16 November 2010 of possessing a listed false instrument and possession of articles for use in fraud and possession of an improperly obtained ID card and was sentenced to four 20-month custodial sentences, to run concurrently. He was released from prison on 9 May 2011 but was arrested again on 9 November 2011 and convicted of further offences of fraud and false representations on 22 December 2011. He was served with a notice of liability to deportation and a deportation order was signed on 15 May 2013 under section 32(5) of the UK Borders Act 2007. The appellant appealed against the decision to deport him, but his appeal was dismissed on 18 October 2013 and he became appeal rights exhausted on 20 November 2013.
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On 21 December 2013 the appellant submitted an application for a derivative residence card under the EEA Regulations which was refused on 22 January 2014 and a further application as the extended family member of a British partner was refused on 20 February 2014 and then, following an appeal, was reconsidered and refused again on 11 April 2014.
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The appellant made an asylum claim on 26 February 2014 on the grounds of religion and sexuality, but that was refused on 2 September 2014 and certified under section 96 of the Nationality, Immigration and Asylum Act 2002. Following a judicial review challenge the certificate was withdrawn and a new refusal decision was made on 5 August 2015. The appellant appealed against that decision and his appeal was allowed on asylum grounds on 5 November 2016. However, that decision was set aside following a grant of permission to the respondent and the appeal was remitted to the First-tier Tribunal to be heard afresh. The respondent appears to have agreed to reconsider the appellant’s claim and the decision of 5 August 2015 was withdrawn. A new decision was made on 2 July 2018 refusing the appellant’s protection and human rights claim.
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In that decision the respondent considered the appellant’s claim to be at risk on return to Ghana on the grounds of being an openly bisexual man who could not live discreetly and of being a Rastafarian, and his claim that he was HIV positive, that he had PTSD and suffered from depression and had been suicidal and that he could not receive the required healthcare and medication in Ghana. The respondent took note of the appellant’s claim to have left Ghana at the age of 4, to have moved to Nigeria and then the Ivory Coast and to have come to the UK with his father and siblings at the age of 12. The respondent noted the appellant’s claim that he and his siblings were abandoned by their father in the UK, were then in informal foster care and then in the care of his father’s girlfriend who abandoned them, leaving him to care for his younger siblings until social services became involved, and that he was left homeless when his siblings were taken into care when he was 16 years of age. The appellant claimed to have been picked up by a man called T who, in exchange for accommodation, involved him in criminal activities and expected him to steal. He was arrested and detained in 2003 after being caught stealing and when released became involved again with T who provided him with false documents to enable him to find employment. At that time his sexuality became known in his community and by his siblings and he was violently attacked on several occasions. He continued to be assisted by T with false documents in various identities and, to clear his debt with T, he agreed to transfer money in a false name in a bank, but he was caught and apprehended by the police, convicted and sentenced to 20 months’ imprisonment in a different identity, DC. Following his release, his false identity was discovered and he was arrested again and given another custodial sentence. He was attacked and abused whilst in detention because of his sexuality and was raped in his cell, and he attempted suicide. He was committed to a mental institute in May 2016 after being diagnosed with PTSD and was diagnosed as HIV positive in June 2017.
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The respondent accepted that the appellant was living openly as a bisexual man and that he was a Rastafarian but did not accept that he would be at risk on either basis. The respondent considered the appellant to be excluded from humanitarian protection because he had committed a serious crime and did not accept that he met the high threshold to establish an Article 3 claim on the basis of his health or the risk of suicide. The respondent considered that the appellant could not meet the requirements of paragraph 399(a) and (b) of the immigration rules as he had no children or current family life with a partner and that he could not meet the requirements of paragraph 399A as he had not been lawfully resident in the UK for most of his life, it was not accepted that he was socially and culturally integrated in the UK and it was considered that there were no very significant obstacles to his integration in Ghana. The respondent did not consider there to be very compelling circumstances outweighing the public interest in deportation.
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The appellant appealed against that decision and his appeal was heard in the First-tier Tribunal on 5 July 2019 by Judge Neville. The judge confirmed that there was no issue with credibility and the only relevant matter was risk on return as a result of the appellant’s sexuality. The...
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