Upper Tribunal (Immigration and asylum chamber), 2020-10-01, RP/00132/2016
| Jurisdiction | UK Non-devolved |
| Date | 01 October 2020 |
| Published date | 15 October 2020 |
| Hearing Date | 11 August 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | RP/00132/2016 |
Appeal Number: RP/00132/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00132/2016
THE IMMIGRATION ACTS
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Heard by Skype for Business |
Decision & Reasons Promulgated |
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On 11th August 2020 |
On 1st October 2020 |
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Before
UPPER TRIBUNAL JUDGE MANDALIA
Between
MS
Appellant
and
THE SECRETARy OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J Holt, Counsel instructed by Paragon Law
For the Respondent: Mrs H Aboni, Senior Home Office Presenting Officer
DECISION AND REASONS
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction has been made previously. As the appeal raises matters regarding a claim for international protection, it is appropriate for an anonymity direction to be made. Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
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The appeal was listed before me as a resumed hearing following my decision promulgated on 30th April 2020 setting aside the decision of First-tier Tribunal Judge Clarke promulgated on 29th May 2019. A copy of my error of law decision is attached for ease of reference. In this decision, I continue to refer to MS as the appellant and the SSHD as the respondent. I preserved the finding by Judge Clarke that the appellant has rebutted the presumption that he is a danger to the community for the purposes of s72 Nationality, Immigration and Asylum Act 2002.
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The hearing before me on 11th August 2020 took the form of a remote hearing using skype for business. The appellant was able to attend the hearing remotely but was not called to give evidence. Neither party objected. I sat at the Birmingham Civil Justice Centre and the hearing room and building were open to the public. The hearing was publicly listed, and I was addressed by the representatives in exactly the same way as I would have been, if the parties had attended the hearing together. I was satisfied: that this constituted a hearing in open court; that the open justice principle has been secured; that no party has been prejudiced; and that, insofar as there has been any restriction on a right or interest, it is justified as necessary and proportionate. I was satisfied that it was in the interests of justice and in accordance with the overriding objective to proceed with a remote hearing because of the present need to take precautions against the spread of Covid-19, and to avoid delay. I was satisfied that a remote hearing would ensure the matter is dealt with fairly and justly in a way that is proportionate to the importance of the case, the complexity of the issues that arise, and the anticipated costs and resources of the parties. At the end of the hearing I was satisfied that both parties had been able to participate fully in the proceedings.
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In readiness for the hearing the appellant’s representatives had prepared a consolidated appellant’s bundle comprising of some 211 pages. The bundle had not been received by the Tribunal prior to the hearing, but Mr Holt was able to email a copy to the Tribunal and refer to it during the course of the hearing. The majority of the material within the consolidated bundle was the evidence and background material that was previously before the First-tier Tribunal. The bundle contained some further background material, and more importantly, an expert report from Hazel Cameron dated 3rd August 2020, that I shall return to in the course of this decision. For the avoidance of any doubt, I have carefully considered the evidence set out in the consolidated bundle, including the witness statements and background material, whether expressly referred to in this decision or not.
The issues
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The issue before me is whether the appellant has, as the respondent contends, ceased to be a refugee. If he has, whether the deportation of the appellant would be in breach of Article 8.
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At the resumed hearing before me, the parties focused entirely upon the question of ‘cessation’.
The Background
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The appellant arrived in the UK in February 2004, aged 14, with indefinite leave to enter for family reunion to join his mother. The appellant’s mother arrived in the UK in March 2002 and claimed asylum. She was granted indefinite leave to remain as a refugee on 13th September 2002 following a successful appeal. In her decision First-tier Tribunal Judge Clarke summarised the position as follows:
“25. The appellant’s family home is near Bulawayo. The appellant’s status in the United Kingdom is linked to his mother’s status as a refugee in the United Kingdom as a result of her political opinion. The appellant’s mother was granted asylum on the basis that she was a supporter of the Movement for Democratic Change (‘MDC’) and it was accepted at the time of her application for asylum that even low-level MDC supporters were likely to be at risk.”
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I pause to note that although the appellant appears to have been granted indefinite leave to enter the UK on the grounds of family reunion with his mother, the respondent has throughout proceeded upon the basis, and appears to accept, that a grant of refugee status was made to the appellant. It is not clear from the information before me when such a grant of refugee status was indeed made to the appellant.
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In SSHD v- JS (Uganda) [2020] Imm. A.R 258, the Court of Appeal held, at [126] to [147], that the status of ‘refugee’ under Article 1A of the Convention relating to the Status of Refugees 1951 can only be accorded to a person who themselves had a well-founded fear of being persecuted, not one derived from or dependent on another person. If the appellant is not a refugee as set out in Article 1A of the 1951 Convention Relating to the Status of Refugees, the cessation provisions set out in Article 1C(5) have no relevance. As far as I can see from the papers before me, there is no express reference to the appellant having been granted refugee status himself. The correspondence and decisions sent to the appellant refer to the grant of refugee status to the appellant’s mother and record that on 13th January 2004, the appellant’s Zimbabwean passport was endorsed with a multi-visit family reunion Visa with indefinite leave to enter the UK. The subsequent correspondence and decisions imply that the appellant has been granted refugee status. It forms no part of the respondent’s case before me that the appellant was not granted refugee status or that the respondent has mistakenly proceeded upon the premise that the appellant has refugee status.
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Since his arrival in the UK the appellant has been convicted on three occasions. On 27th November 2007, he was convicted at Leicester Magistrates Court of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence. He was given a conditional discharge and ordered to pay costs of £300. On 16th August 2010, he was convicted of possession of a controlled drug – Class B – cannabis/cannabis resin and of failing to surrender to custody at an appointed time. He was fined £175, and ordered to pay a victim surcharge and costs. On 11th June 2012, the appellant was convicted at Leicester Crown Court of Robbery, and, on 28th September 2012 he was sentenced to an 8-year term of imprisonment. In his sentencing remarks, His Honour Judge Pert QC said:
“I have to sentence on your plea of guilty for an offence of robbery. You and another man went into someone else’s home late at night where the occupant and two other people were present. You and your accomplice were armed. It was plainly a planned intervention by you…. it matters not in the slightest who did what. You had between you an extendable baton and a knife.
It was also planned, because of what you perceived to be available in the premises because immediately, the occupant was asked to identify the whereabouts of the safe and then the contents of the safe were taken and shared out, stolen and he was prevented at knifepoint from leaving the apartment.
You have to your advantage the fact that you do not have a particularly bad record. You have to your advantage a plea of guilty. The benefit of that has been significantly diminished by the fact that you conducted or you had conducted on your behalf a Newton Hearing, which was an utterly hopeless venture from your point of view and you did yourself no favours at all by pursuing that course, but it nonetheless still affords you some credit for your plea of guilty.
It cannot be stressed highly enough, indeed, the Lord Chief Justice has referred to it again yesterday, the sanctity of the home and the intervention in someone else’s home, particularly a violent intervention, and armed intervention such as occurred here, and that is the context in which I...
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