Upper Tribunal (Immigration and asylum chamber), 2020-10-09, RP/00016/2019
| Jurisdiction | UK Non-devolved |
| Date | 09 October 2020 |
| Published date | 23 October 2020 |
| Hearing Date | 31 July 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | RP/00016/2019 |
Appeal Number: RP/00016/2019
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: RP/00016/2019 |
THE IMMIGRATION ACTS
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Heard at Field House via Skype |
Decision & Reasons Promulgated |
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On 31 July 2020 |
On 9 October 2020 |
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Before
UPPER TRIBUNAL JUDGE PERKINS
UPPER TRIBUNAL JUDGE BLUNDELL
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
cd (Turkey)
(ANONYMITY DIRECTION made)
Respondent
Representation:
For the Appellant: Mr T Lindsay, Senior Presenting Officer
For the Respondent: Ms A Radford of counsel, instructed by Turpin & Miller LLP (Oxford) Solicitors
DECISION AND REASONS
Introduction
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On 19 May 2020, we issued a decision in which we allowed, in part, the Secretary of State’s appeal against the First-tier Tribunal’s decision to allow CD’s appeal against the revocation of his protection status. That decision is appended to this one subject to correcting an obvious error that Ms Radford drew to our attention at the resumed hearing.
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In order to avoid confusion, we intend to refer to CD as the appellant and the Secretary of State as the respondent throughout this decision.
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 we make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellant or his family. Breach of this order can be punished as a contempt of court. We make this order because the appellant is an asylum seeker and so entitled to anonymity.
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In our earlier decision, we concluded, firstly, that the Ft-T had not erred in law in deciding that the circumstances in connection with which the appellant had been recognised as a refugee had not ceased to exist. We concluded that the Ft-T’s decision to allow the appeal against the Secretary of State’s cessation of his refugee status had accordingly been properly open to it, as had the decision to allow the appeal under Articles 2 and 3 of the European Convention on Human Rights.
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We decided, secondly, that the Ft-T had erred in law in reaching the conclusion that the appellant was a refugee who continued to be protected from refoulement by Article 33(1) of the Refugee Convention. We concluded that the Ft-T had erred in its assessment of one of the two questions posed by Article 33(2) of the Refugee Convention and s72 of the Nationality, Immigration and Asylum Act 2002; namely, whether the appellant had rebutted the statutory presumption that he represented a danger to the community of the United Kingdom. We ordered that the latter aspect of the decision would be remade in the Upper Tribunal. This decision follows a further hearing which was convened for that purpose.
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As a result of our decision to uphold and to preserve the Ft-T’s conscientious assessment of the ongoing risk to the appellant in Turkey, he cannot (subject to any further proceedings) be removed there. That course is prohibited by the United Kingdom’s obligations under the ECHR. The decision that we make in respect of the application of Article 33(2) is nevertheless significant, for the following reasons.
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A deportation order has been made against the appellant and the Indefinite Leave to Remain (“ILR”) which he hitherto enjoyed has been invalidated by operation of statute. In the event that we conclude that he has rebutted the statutory presumptions in s72 of the 2002 Act, and that he is therefore a refugee to whom the United Kingdom owes the obligation of non-refoulement, he will be granted a five-year residence permit under paragraph 339Q of the Immigration Rules. In that event, he would be entitled to apply for Indefinite Leave after holding leave in that capacity for five years, under paragraph 339R.
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Alternatively, in the event that we conclude that the appellant must not benefit from the protection against refoulement in the Refugee Convention, any residence permit granted to him under paragraph 339Q would not be for five years. Instead, he would be granted Restricted Leave by the Secretary of State. The Restricted Leave regime was recently analysed in detail (by Nicol J and UTJ Stephen Smith) in R (MBT) v SSHD [2019] UKUT 414 (IAC); [2020] Imm AR 615. As the Upper Tribunal explained, a recipient of Restricted Leave is ‘subject to regular and renewed grants of short periods of limited leave to remain, in a process which can continue for many years.’: [2]. That stated intention behind the policy is to ensure that the individual can be removed at the earliest possible opportunity. In the event that Article 3 ECHR continued to preclude that course, it is quite likely that the appellant would not be eligible for Indefinite Leave to Remain for thirty years.
Background
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The appellant is a Turkish national who was born on 3 January 1968. He entered the United Kingdom and claimed asylum in 1995, aged 27. His asylum claim was refused but he was granted four years’ Exceptional Leave to Remain (“ELR”) in August 2000.
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On 5 April 2002, the appellant’s home was searched by the police for material relevant to an overseas investigation1. He had fallen under suspicion of drug trafficking in Holland. He was arrested for being in possession of a self-loading pistol and six rounds of ammunition which were in the magazine. In November that year he was convicted of possessing those items without a certificate and sentenced to four years’ imprisonment. The Secretary of State initiated deportation proceedings as a result of that conviction. The appellant resisted deportation on protection and human rights grounds.
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On 2 March 2006, the appellant’s appeal against the deportation order was allowed by Immigration Judge Haynes, who found that he would be at risk on return to Turkey as a result of his extensive connections to Kurdish separatism, his draft evasion, his convictions in the UK, and the fact that he had been the subject of a Dutch extradition request for drug offences. That conclusion was upheld by a panel of the Asylum and Immigration Tribunal chaired by Senior Immigration Judge Lane (as he then was) on 14 July 2006 and, on 30 October 2006, he was granted ILR as a refugee.
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The appellant subsequently fell under suspicion, again, of being involved in the international drugs trade. A listening device was installed at his home in Finchley and evidence was gathered to show that he was the head of a massive, nationwide operation, importing drugs from all over the world for distribution to a broad customer base across the country. He was arrested in July 2008 and was subsequently convicted – along with two more junior members of the operation – of offences relating to the importation and supply of heroin. In sentencing him, HHJ Ainley noted that he was a ‘very major player in the heroin trade in this country’ and he was ‘at the top of this heroin importing and heroin wholesaling criminal business’. The amounts of heroin were described by the judge as follows:
The specific counts of the indictment are: keeping 41 kilogrammes of heroin at Brownlow Road, importing 64 kilogrammes of heroin. Conspiring to supply 9.81 kilogrammes of heroin almost seems minor compared to those, yet in any other context it would be a very serious crime indeed.
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The appellant was given credit for his somewhat belated guilty plea and HHJ Ainley reduced the total sentence from 25 years’ imprisonment to 18. He was made the subject of a substantial confiscation order, with a sentence of 5 years’ imprisonment in default of payment. HHJ Ainley also imposed a Serious Crime Prevention Order (“SCPO”), restricting the appellant’s activities for five years after his release. A confiscation order in the sum of £1.3 million was made under the Proceeds of Crime Act 2002 by Croydon Crown Court in 2011. At Westminster Magistrates’ Court the appellant was committed to prison for a further five years in default of payment in 2012.
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The appellant’s offending caused the respondent to initiate deportation action for a second time. Having sought his representations, and having consulted with the United Nations High Commissioner for Refugees over the cessation of his refugee status, she made a deportation decision against him on 26 February 2019. A letter of the same date explained the reasons that the respondent had decided to cease the appellant’s refugee status and to deport him to Turkey.
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The appellant appealed and, as we have noted, his appeal to the First-tier Tribunal was allowed on protection and human rights grounds (Articles 2 and 3 ECHR). The respondent sought and was granted permission to appeal against that...
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